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LIBERTY MUT. INS. v. S.C. SECOND INJURY FUND2/27/1995
The circuit court, affirming the order of the full commission, awarded reimbursement to Liberty Mutual Insurance Company from the South Carolina Second Injury Fund. The Second Injury Fund appeals. We affirm.
On March 25, 1985, Claimant Martha Ann Beacham suffered an accident on the job while working for Milliken. Claimant received medical treatment and workers' compensation benefits. Respondent timely notified Appellant of this accident. Claimant returned to work, but was periodically absent and received temporary total benefits during these times.
Claimant's compensation rate for the March 25, 1985, accident was $101.71. Claimant again became unable to work on May 5, 1989. Respondent renewed Claimant's temporary total benefits at her March 25, 1985, compensation rate. At that time, Respondent had no knowledge of an alleged new injury taking place on May 5, 1989 and attributed Claimant's absence to her previous accident.
On December 11, 1989, Claimant notified the Workers' Compensation Commission that she had sustained a new injury on May 5, 1989. Respondent then filed a Form 12-A with the Commission on December 13, 1989, acknowledging Claimant's claim of a second injury. Respondent filed a Form 51 on August 2, 1990, denying a second accident occurred on May 5, 1989. By Consent Order dated October 17, 1990, Respondent and Claimant agreed that a new accident had occurred on May 5, 1989, and adjusted Claimant's compensation rate to $145.09 to reflect her average weekly wage as of May 5, 1989.
Around July 15, 1991, Respondent notified Appellant of the new accident. Thirty eight (38) weeks had passed since the Consent Order was filed.
Appellant denied Respondent's claim for reimbursement pursuant to S.C. Code Ann. § 42-9-400(a) and (f) (1985). Specifically, Appellant denied Claimant's disability was substantially increased by the combination of a prior back surgery and the subsequent injury of May 5, 1989, and denied it was properly notified of the claim. The single commissioner found Appellant was timely notified, and ordered Appellant to reimburse Respondent. The full commission and the circuit court affirmed.
The appellate court has the power upon review to reverse or modify a decision if the findings and conclusions of the administrative agency are clearly erroneous in view of the reliable and substantial evidence on the whole record. S.C. Code Ann. § 1-23-380 (g) (1986).
S.C. Code Ann. § 42-9-400 (f) (1985) states:
An employer or his carrier shall notify the
Industrial Commission and the Director of the
Second Injury Fund in writing of any possible
claim against the fund as soon as practicable
but in no event later than after the payment
of the first seventy-eight weeks of compensation .
Failure to comply with the provisions of this
subsection shall bar an employer or his
carrier from recovery from the fund.
We agree with the Commission the payments that began immediately after the May 5, 1989 incident were merely a continuation of payments which had begun after the first accident which Respondent was required to pay. Appellant was already on notice regarding the March 25, 1985 claim. It would be nonsensical to require Respondent to again put Appellant on notice for a second accident before it even knew a second accident had occurred. The existence of a second accident was not established until the October 17, 1990 order. Respondent notified Appellant thirty eight (38) weeks later in July, 1991. Therefore, we find Respondent timely notified Appellant in accordance with S.C. Code Ann. § 42-9-400 (f).
S.C. Code Ann. § 42-9-400 (a) (1985) provides in
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