Foggie v. General Electric Co. ( 2008 )

PIEPER, J.,

dissenting:

Respectfully, I dissent. I would hold that the circuit court’s order is subject to appellate review.

In the case sub judice, the circuit court finally determined an issue on the merits by affirming the Appellate Panel’s conclusion that General Electric was entitled to a 10% credit for a previous workers’ compensation award involving Foggie’s leg. Thus, the circuit court did not merely remand for further proceedings, but finally determined the defense of set-off or credit that ultimately will be binding on the parties and the Commission on remand.

In Brown v. Greenwood Mills, Inc., 366 S.C. 379, 622 S.E.2d 546 (Ct.App.2005), this court determined that the claimant’s smoking contributed to his disability. The circuit court remanded to make findings as to the apportionment percentage with a corresponding reduction in the claimant’s disability award. Although the circuit court left the percentage of apportionment up to the Commission on remand, this court nonetheless indicated that the panel would have no choice but to allocate some part of the disability to a noncompensable cause and thus held that the circuit court’s order constituted a final decision on the issue of apportionment and was appeal-able. Ultimately, the court reversed the order of the circuit court on the apportionment issue.

Here the question of the 10% credit or the amount thereof is no longer subject to review on remand although potentially affected by the proceedings on remand. While the majority opinion correctly notes that the credit for the Veterans Administration matter is not final, the majority does not address the final decision on the credit issue as to Foggie’s leg, which credit is unrelated to the Veterans Administration matter. I greatly respect the concerns of the majority for judicial economy. However, even if judicial economy is considered, I would respectfully note that if the defense of set-off or credit is reviewed after remand, then it is just as likely that the matter would be sent back again to the Commission if that defense is ultimately overturned or modified which weighs against those notions of judicial economy. Accordingly, I would hold that determination by the circuit court regarding the 10% credit constitutes a final decision on the defense of set-off or credit and is immediately appealable.