                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Paula Russell, Claimant, Petitioner,

            v.

            Wal-Mart Stores, Inc., Employer, and Illinois National
            Insurance Company, Carrier, Respondents.

            Appellate Case No. 2018-000354


       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


              Appeal from the Workers' Compensation Commission


                              Opinion No. 27875
                  Heard February 21, 2019 – Filed April 3, 2019


                                  REVERSED


            C. Daniel Vega, of Chappell Smith & Arden, P.A., of
            Columbia, for Petitioner.

            Johnnie W. Baxley III, of Willson Jones Carter & Baxley,
            of Mount Pleasant, for Respondents.


JUSTICE FEW: An appellate panel of the workers' compensation commission
remanded Paula Russell's change of condition claim to a single commissioner for
what would be a third ruling on the same claim. Russell appealed the remand order
to the court of appeals, which dismissed the appeal on the ground the order was not
a final decision, and thus not immediately appealable. We find the remand order is
immediately appealable because the commission's unwarranted delay in making a
final decision requires immediate review to avoid leaving Russell with no adequate
remedy on an appeal from a final decision. We reverse the court of appeals' order
dismissing the appeal, reverse the appellate panel's remand order, and remand to any
appellate panel of the commission for an immediate and final review of the original
commissioner's decision.

      I.     Facts and Procedural History

Russell injured her back in 2009 while working at a Wal-Mart store in Conway. The
commission found Russell suffered a 7% permanent partial disability, and awarded
her twenty-one weeks of temporary total disability compensation. In 2011, Russell
requested review of her award, claiming there had been a "change of condition
caused by the original injury" pursuant to subsection 42-17-90(A) of the South
Carolina Code (2015).

A single commissioner conducted a full evidentiary hearing on the 2011 claim on
February 11, 2013. In a detailed order dated August 5, 2013, the commissioner
found Russell had proven a change of condition. The commissioner ordered Wal-
Mart to pay temporary total disability benefits beyond the original twenty-one weeks
"through the present date and continuing." The commissioner based the award on
Russell's testimony, and the testimony and medical records of two treating
physicians. The commissioner explained in her order she relied on testimony of the
two physicians who described a "physical, anatomical change" and an "increase in
the size of the disc protrusion," demonstrated by an "objective" comparison of MRI
images taken before and after the award.

An appellate panel reversed the commissioner. The panel dismissed Russell's
testimony on the ground "it is conclusory and self-serving." The panel discounted
the testimony and medical records of the two physicians, stating, "Both [physicians]
ultimately testified there was no objective or significant radiographical difference to
be noted in the MRI scans done before and after the original award." In an order
dated January 30, 2014, the panel found Russell "failed to prove by a preponderance
of the evidence . . . [she] has sustained a change of condition."

Russell appealed to the court of appeals. The court of appeals found the appellate
panel "erred in requiring a change of condition to be established by objective
evidence." Russell v. Wal-Mart Stores, Inc., 415 S.C. 395, 398, 782 S.E.2d 753, 755
(Ct. App. 2016). The court of appeals reversed the panel and remanded "to the
Commission," 415 S.C. at 401, 782 S.E.2d at 757, with no express remand
instructions.
The court of appeals remitted the case to the commission on May 3, 2016. On March
20, 2017, a second commissioner filed a detailed order finding Russell "met her
burden of proving a change of condition." On September 15, 2017, however, a new
appellate panel vacated the second commissioner's order and remanded for what
would be a third commissioner to make a third ruling. The panel stated, "At the
remand hearing, the Single Commissioner shall conduct a full evidentiary hearing
and allow both parties to submit testimony, medical records, and other additional
evidence for consideration as to the issue of any award of benefits under the Act if
the change of condition is found to be compensable."

Russell appealed the September 15, 2017 order to the court of appeals. In an
unpublished decision, the court of appeals found the appellate panel's remand order
was not immediately appealable and dismissed the appeal. Russell filed a petition
for a writ of certiorari with this Court. She argued the commission's repeated
remands for new hearings created a "perpetual" 1 "cycle of orders and appeals such
that [she] will be deprived of an adequate remedy." We granted the petition, and
now reverse.

     II.     Analysis

One primary goal of the Workers' Compensation Act is to provide quick and efficient
resolution of work-related injury claims so neither employers nor employees become
bogged down in complicated and protracted litigation. See Peay v. U.S. Silica Co.,
313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993) (recognizing "Workers' compensation
laws were intended by the Legislature to . . . provid[e] sure, swift recovery for
workplace injuries regardless of fault"). This Court recently emphasized the goal,
stating, "The Workers' Compensation Act was designed to supplant tort law by
providing a no-fault system focusing on quick recovery, relatively ascertainable
awards, and limited litigation." Nicholson v. S.C. Dep't of Soc. Servs., 411 S.C. 381,
389, 769 S.E.2d 1, 5 (2015) (citing Wigfall v. Tideland Utils., Inc., 354 S.C. 100,
115, 580 S.E.2d 100, 107 (2003)).2 The court of appeals addressed this goal in

1
 Russell did not use the word "perpetual" in her petition for a writ of certiorari. She
did, however, use it in her petition for rehearing to the court of appeals. As we will
explain, the term is appropriate.
2
  See also 99 C.J.S. Workers' Compensation § 16 (2013) (stating "considerations
leading to the enactment of the compensation legislation [include] a desire to provide
a remedy or form of relief to, or settlement of the claims of, injured workers or their
another case in which the commission unreasonably delayed addressing the merits
of claims, stating, "If the claimants were entitled to benefits, they were entitled to
receive them many years ago. If the claimants were not entitled to benefits, [the
employers] were entitled to have the claims denied many years ago." Ex parte S.C.
Prop. & Cas. Ins. Guar. Ass'n, 411 S.C. 501, 506, 768 S.E.2d 670, 673 (Ct. App.
2015).

The Administrative Procedures Act limits the role of the judicial branch of
government in meeting the goal of quick decisions in limited litigation by restricting
appeals to final decisions in most cases. See S.C. Code Ann. § 1-23-380 (Supp.
2018) ("A party . . . who is aggrieved by a final decision . . . is entitled to judicial
review . . . ."); Spalt v. S.C. Dep't of Motor Vehicles, 423 S.C. 576, 583, 816 S.E.2d
579, 583 (2018) (stating "the Administrative Procedures Act permits an appeal only
from 'a final decision . . .'" (quoting Charlotte-Mecklenburg Hosp. Auth. v. S.C.
Dep't of Health & Envtl. Control, 387 S.C. 265, 266, 692 S.E.2d 894 (2010))).
Nevertheless, this Court has struggled to foster quick and efficient resolution of
work-related injury claims by discouraging the commission from making repeated,
unnecessary remands. In Bone v. U.S. Food Service, we cited "lingering confusion
in this area [of immediate appealability] that has arisen after the passage of the
Administrative Procedures Act" as a basis for granting certiorari to review the court
of appeals' dismissal of an interlocutory appeal. 399 S.C. 566, 570, 733 S.E.2d 200,
202 (2012), adhered to on reh'g, 404 S.C. 67, 744 S.E.2d 552 (2013). Ultimately,
we denied an immediate appeal and permitted a remand for a new hearing, 404 S.C.
at 84, 744 S.E.2d at 562, but we highlighted the prejudice employers and employees
may suffer from delaying appeal of interlocutory orders until after final judgment,
404 S.C. at 82-83, 744 S.E.2d at 561. The dissent in Bone addressed the problem
even more directly. Justice Hearn wrote, "Moreover, the interests of judicial
economy demand a rejection of the majority's view. Taken to its logical conclusion,
the majority's position could have cases trapped in a cycle of remands for years."
404 S.C. at 92, 744 S.E.2d at 566 (Hearn, J., dissenting).


dependents that is prompt and speedy" (footnote omitted)); 82 Am. Jur.2d Workers'
Compensation § 12 (2013) ("A state's workers' compensation act . . . provid[es]
injured employees with an efficient system of rights, remedies, and procedures with
the goal of giving them prompt relief. Among the purposes of a workers'
compensation act [is] . . . providing prompt justice for injured workers and
preventing the delays that might arise from protracted litigation." (footnotes
omitted)).
In Hilton v. Flakeboard America Limited, 418 S.C. 245, 791 S.E.2d 719 (2016), we
again faced the prejudice workers' compensation litigants may encounter when the
commission orders repeated remands, and appeal must be delayed until a final
decision. We stated, "Under these unique circumstances where the Commission has
ordered the relitigation of the entire dispute without regard to the matters raised by
the appealing party, we find that requiring Hilton to wait until the final agency
decision to appeal would not provide him an adequate remedy." 418 S.C. at 250,
791 S.E.2d at 722; see § 1-23-380 ("A preliminary, procedural, or intermediate
agency action or ruling is immediately reviewable if review of the final agency
decision would not provide an adequate remedy."). We foresaw in Hilton precisely
what has happened in this case, that "a party could face the possibility of repeated
unexplained 'do overs' before a final decision of the Commission." 418 S.C. at 252,
791 S.E.2d at 723. In Hilton, we granted an immediate appeal despite the fact the
commission's order was not a final decision. Id.; see also 418 S.C. at 253, 791 S.E.2d
at 723 (Kittredge, J., concurring) (contending "the petitioners in Bone made the
identical argument . . . , that review of a final agency decision would not provide an
adequate remedy").

If this Court's role in achieving this goal of the Workers' Compensation Act is
limited, however, the commission's role is primary. See James v. Anne's Inc., 390
S.C. 188, 201-02, 701 S.E.2d 730, 737 (2010) (stating the "'workers' compensation
commission . . . is, in the first instance, responsible for effectuating the purposes of
the workers' compensation act by administering, enforcing, and construing its
provisions in order to secure its humane objectives.'" (quoting 100 C.J.S. Workers'
Compensation § 706 (2000))). The Workers' Compensation Act sets forth the
procedure the commission should follow to fulfill its purpose. Subsection 42-17-
40(A) of the South Carolina Code (2015) provides, "The commission or any of its
members shall hear the parties at issue and their representatives and witnesses and
shall determine the dispute in a summary manner." Section 42-17-50 of the South
Carolina Code (2015) provides an "application for review" by an appellate panel
must be made "within fourteen days," in which case an appellate panel may, "if good
grounds be shown therefor, reconsider the evidence, receive further evidence, rehear
the parties or their representatives and, if proper, amend the award."

In most instances, therefore, a claim filed with the commission will be assigned to
one commissioner who must promptly conduct a hearing and "determine the dispute
in a summary manner." § 42-17-40(A). If the commissioner's decision is appealed,
an appellate panel must promptly hear the appeal, and "if proper, amend the award."
§ 42-17-50. In all but rare cases, the appellate panel should proceed promptly to
make a final decision without the necessity of any remand. When the commission
follows this procedure, it will have fulfilled the legislatively set goal to "provide[] a
. . . system focusing on quick recovery, relatively ascertainable awards, and limited
litigation." Nicholson, 411 S.C. at 389, 769 S.E.2d at 5.

In this case, however, the commission's unnecessary delays and repeated remands
over the almost eight years since Russell filed her change of condition claim
frustrated the goals of the Workers' Compensation Act. As we will explain, each of
the remands was unnecessary—particularly the remand order on appeal—and thus
contributed to the commission's failure to make a final decision in a timely manner.

After the first appellate panel reversed the first commissioner, the court of appeals
reversed. Russell, 415 S.C. at 397, 782 S.E.2d at 754. The focus of the court of
appeals was the error of requiring that only objective evidence may support the
claim. See 415 S.C. at 398, 782 S.E.2d at 755 ("Russell argues the Commission
erred in requiring a change of condition to be established by objective evidence. We
agree."). That was an error only in the appellate panel's review of the first
commissioner's decision. In fact, as we previously explained, the first commissioner
specifically relied on Russell's subjective testimony, and on the subjective
impressions of the two physicians, in addition to the objective MRI scans. While
the court of appeals did not provide the commission with specific remand
instructions, the commission should have been able to determine that its error was
in the appellate panel's review of the commissioner—not in the work of the
commissioner. It was completely unnecessary, therefore, for the commission to
require the case be reheard by a second commissioner. Rather, given the clear
description of the error committed by the appellate panel in reversing the original
commissioner, the only task for the commission after the court of appeals' decision
was to complete a renewed review of the original commissioner's order under proper
principles of law.

It was also completely unnecessary for the second appellate panel to remand to a
third commissioner after the second commissioner reviewed the evidence and filed
a second detailed order. The court of appeals' 2016 opinion required only a new
review, not a new hearing. Even before the second commissioner ruled, counsel for
Wal-Mart specifically argued there should be no new hearing. In an email to the
commission shortly after the court of appeals remitted the case in May 2016—nine
months before the second commissioner's March 2017 order—counsel for Wal-Mart
wrote,

             Based upon the hearing notice that I have received, it
             appears as though this matter has been set for a de novo
            hearing before the single commissioner. I believe this to
            be in error based upon the remand from the . . . court of
            appeals. . . . There is nothing in the remand . . . which
            indicates that a new hearing should be held and that new
            evidence should be taken on the claim; instead, the
            commission is simply supposed to reconsider the existing
            evidence and issue new factual findings in accordance
            with the legal issues raised by the court of appeals. I
            believe that having a new hearing . . . is improper from a
            legal and procedural perspective.

Counsel for Wal-Mart continued, specifically raising the concern we foresaw in
Hilton and upon which we now reverse,

            I am surprised that this matter was not considered by the
            full commission and that new factual findings were not
            issued in accordance with the directives of the court of
            appeals. Any new factual findings coming from a single
            commissioner will simply necessitate more appeals and
            more litigation. . . . I certainly don't see any basis for a de
            novo hearing or consideration of new evidence; the
            remand from the court of appeals simply directs the
            commission to reconsider the existing evidence in light of
            [the court's] legal determination.

Nevertheless, despite the fact counsel for Wal-Mart specifically asked there not be
a de novo hearing, despite the fact the issue of a de novo hearing was not raised by
either side after the second commissioner's order, despite the fact almost six years
had elapsed since Russell's claim for a change of condition was filed, despite the
existence of two detailed single commissioner orders awarding Russell additional
benefits, the appellate panel remanded to a third commissioner for a third hearing,
specifically requiring the very thing the party appealing to it (Wal-Mart) had
specifically asked not to have—a new hearing.

In summary, Russell filed her claim for an increase in benefits due to a change of
condition in 2011. In 2013, a commissioner found she proved her condition had
changed for the worse. As of the writing of this opinion—nearly eight years after
Russell filed her claim—Russell has not received any additional benefits, despite
two commissioners finding she was entitled to them. Cf. Rose v. JJS Trucking, LLC,
411 S.C. 366, 369, 768 S.E.2d 412, 413 (Ct. App. 2015) (finding an interlocutory
order not immediately appealable under the "adequate remedy" provision when the
only prejudice was "to delay the payment of money" between insurance providers).
If Russell is entitled to additional benefits, she was entitled to receive them many
years ago. If she is not entitled to additional benefits, Wal-Mart was entitled to have
her claim denied many years ago. S.C. Prop. & Cas. Ins. Guar. Ass'n, 411 S.C. at
506, 768 S.E.2d at 673. The commission failed to fulfill its responsibility under the
Workers' Compensation Act to promptly decide this case without protracted
litigation.

     III.    Conclusion

We find the commission's unreasonable delay in making a final decision leaves
Russell without an adequate remedy on appeal from a final decision under section
1-23-380. Therefore, we find the appellate panel's remand order is immediately
appealable. We REVERSE the court of appeals' dismissal, REVERSE the order
remanding to a single commissioner, and REMAND to any appellate panel for
immediate and final review of the original commissioner's August 5, 2013 order in
accordance with the 2016 holding of the court of appeals.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.
