Jefferson v. SCDOT

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
   CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
        EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

                     THE STATE OF SOUTH CAROLINA
                         In The Court of Appeals

            Joseph Jefferson, Employee, Respondent,

            v.

            South Carolina Department of Transportation, Employer,
            and South Carolina State Accident Fund, Carrier,
            Appellants.

            Appellate Case No. 2019-001643


             Appeal From The Workers' Compensation Commission


                      Unpublished Opinion No. 2024-UP-312
                 Heard October 4, 2022 – Filed September 11, 2024


                                   AFFIRMED


            Sarah S. Hood, of Willson Jones Carter & Baxley, P.A.,
            of Columbia, for Appellants.

            Stephen J. Wukela, of Wukela Law Office, of Florence,
            for Respondent.


MCDONALD, J.: A divided Appellate Panel of the South Carolina Workers'
Compensation Commission (the Appellate Panel) awarded a statutory ten-percent
penalty on Joseph Jefferson's (Claimant) hearing award after the insurance carrier
mailed, but Claimant did not receive, payment within the statutory deadline and
subsequent grace period. The State Accident Fund (Carrier) and South Carolina
Department of Transportation (collectively, Appellants) appeal the imposition of
the statutory penalty. We affirm.

Facts and Procedural History

While working for SCDOT, Claimant was injured when a cement mixer struck him
in the head and pinned him to the ground. The single commissioner found
Claimant was permanently and totally disabled and awarded a lump sum payment
of $109,310.33. On July 23, 2018, the Appellate Panel affirmed this award.

On August 3, 2018, Claimant's counsel emailed Appellants' counsel to ask whether
Appellants planned to appeal. On August 8, Appellants' counsel responded that
Appellants did not plan to appeal. On August 9, Claimant's counsel explained a
ten-percent penalty could be imposed if Carrier did not timely pay the award by
August 13, and asked when Appellants would be sending payment. Appellants'
counsel indicated the check would be cut the following day and asked Claimant's
counsel to approve her calculations. Claimant's counsel responded, "Your numbers
are correct. They can hold the check for another week if they like, 10% sounds
pretty good to me." Noting he would be in Columbia the following day, Claimant's
counsel offered to "drop by and pick up the check." On Friday, August 10,
Appellants' counsel replied that the adjuster told her the check would be ready by
the end of the day or "possibly" Monday. On August 14, Claimant's counsel
notified Appellants' counsel that he had not received the check and asked when he
could expect the check for the award and statutory penalty. Appellants' counsel
asserted payment was timely because the check was mailed on August 13, the last
day of the statutory grace period. Claimant's counsel subsequently received the
check on August 15; the envelope was postmarked August 13.

Claimant then filed a Form 50, seeking imposition of the statutory penalty.
Appellants timely filed a Form 51, asserting Claimant was not entitled to the
ten-percent penalty because mailing of the payment was timely under
section 42-9-90 of the South Carolina Code (2015).

The single commissioner awarded Claimant the ten-percent statutory penalty,
finding Appellants did not timely pay the award within § 42-9-90's fourteen day
deadline because Claimant did not receive the check until August 15, two days past
the statutory grace period. A divided Appellate Panel adopted the single
commissioner's findings and affirmed the imposition of the penalty.

Analysis
Pursuant to section 42-9-240 of the South Carolina Code (2015):

            The first installment of compensation payable under the
            terms of an award by the commission or under the terms
            of a judgment of a court upon an appeal from such an
            award shall become due seven days from the date of such
            an award or from the date of such a judgment of the
            court, on which date all compensation then due shall be
            paid, including interest from the original date of the
            award at the maximum legal rate.

Section 42-9-90 then provides a fourteen-day grace period:

            If any installment of compensation payable in accordance
            with the terms of an agreement approved by the
            commission without an award is not paid within fourteen
            days after it becomes due, as provided in Section
            42-9-230, or if any installment of compensation payable
            in accordance with the terms of an award by the
            commission is not paid within fourteen days after it
            becomes due, as provided in Section 42-9-240, there
            shall be added to such unpaid installment an amount
            equal to ten per cent thereof, which shall be paid at the
            same time as, but in addition to, such installment, unless
            such nonpayment is excused by the commission after a
            showing by the employer that owing to conditions over
            which he had no control such installment could not be
            paid within the period prescribed for the payment.

Payment of Claimant's award was due on July 30, 2018—seven days after the
Appellate Panel's July 23 order. See § 42-9-240 (providing payment of a workers'
compensation award becomes due seven days from the date of an award).
Appellants then had a grace period of fourteen days—until August 13—within
which to pay Claimant without incurring a statutory penalty. See § 42-9-90
(providing a ten-percent penalty "shall be added" to a workers' compensation
award not paid within fourteen days after it becomes due "unless such nonpayment
is excused by the commission after a showing by the employer"). Yet, Appellants
chose not to cut and mail the check until the last day of the fourteen-day grace
period—August 13—rendering it impossible for Claimant to receive payment
within the statutory grace period.

Notably, § 42-9-90 provides a mechanism for the Commission to excuse the
nonpayment (or late payment) penalty "after a showing by the employer that owing
to conditions over which he had no control such installment could not be paid
within the period prescribed for the payment." Appellants made no such showing
here. Claimant's counsel made Appellants aware of the penalty for late payment
and offered to pick up the check the Friday before payment was due. Initially,
Appellants' counsel told Claimant's counsel the check would be cut on August 10.
However, after consulting with the adjuster, she noted "it could be the end of the
day or possibly Monday." Carrier could have cut the check in time for Claimant's
attorney to pick it up on Friday afternoon—or in time to deposit the check in the
Friday afternoon mail—but offered no explanation to the single commissioner or
the Appellate Panel addressing why it failed to do so. 1

More importantly, the statute speaks to "paying" as opposed to "mailing." See e.g.,
Mose v. State, 

, 

, 721–23 (2017)
(acknowledging "the bright-line rule that mailing does not equate to filing" but
applying equitable tolling where a prisoner "was prevented from timely filing for
PCR due to circumstances beyond his control"). We agree that the imposition of a
penalty in this case is consistent with the plain language of the statute, and that the
Appellate Panel's imposition of the ten percent penalty was neither an error of law
nor arbitrary or capricious. See James v. Anne's Inc., 

, 

 (2010); 

(5)(d)–(e) (Supp. 2023) ("An
appellate court has the power upon review to reverse or modify a decision of an
administrative agency if the findings and conclusions of the agency are (1) affected
by an error of law, (2) clearly erroneous in view of the reliable and substantial
evidence on the whole record, or (3) arbitrary or capricious or characterized by
abuse of discretion or a clearly unwarranted exercise of discretion.").



1
  Before the Appellate Panel, Commissioner McCaskill asked, "Refresh my
memory. Why is the payment made at the end of the window in which to make
it?" Carrier responded, "Your Honor, that question I cannot specifically answer for
you, why the payment was mailed out on the date that it was." See e.g., Hudson ex
rel. Hudson v. Lancaster Convalescent Ctr., 

, 

 (2014) (finding § 42-9-90 "permits excusal of this penalty only after there is a
showing of circumstances beyond the employer's control excusing non-payment").
We recognize dissenting Commissioner James's opinion that the Commission
should adopt the reasoning of Morrison v. Public Service Co. of North Carolina,
Inc., "that a benefit is 'paid' upon the defendants mailing the check, even if the
check is received by the claimant or their attorney outside the time frame." See

, 61–62 (N.C. Ct. App. 2007) (affirming North Carolina Industrial
Commission's reversal of late payment penalty and noting "tendering payment is
not limited to the immediate transfer of physical possession of the payment.
Rather, tendering payment also may include depositing the payment, properly
addressed to the payee, with the United States Postal Service or a designated
delivery service" authorized by statute). But here, the substantial evidence in the
record supports the Appellate Panel's finding that:

             The State Fund had more than adequate opportunity to
             deliver the funds necessary to satisfy their obligation
             under the Order of this Commission in the time mandated
             by statute. They failed to do so, notwithstanding the fact
             that the Claimant's counsel offered to come to the Fund
             in person to receive the check on behalf of his client.
             Instead, the Fund elected to post the funds the day they
             were due.

It was within the Commission's discretion to excuse "such nonpayment" upon
Carrier's showing "that owing to conditions over which [it] had no control such
installment could not be paid" within the statutory grace period. See § 42-9-90.
No such showing was made. As the Appellate Panel's decision is not arbitrary and
capricious, controlled by an error of law, nor clearly erroneous in view of the
reliable and substantial evidence in the record, the order of the Appellate Panel is

AFFIRMED.

GEATHERS, J., and HILL, A.J., concur.