Adams v. Westinghouse SRS ( 2009 )

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

Mary W. Adams, Appellant,

v.

Westinghouse SRS and
Wausau Insurance Companies, Respondents.

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Appeal From Aiken County
Diane Schafer Goodstein, Circuit Court Judge

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Unpublished Opinion No.   2009-UP-401
Heard May 13, 2009 – Filed August 10, 2009

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REVERSED AND REMANDED

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Amy G. Steinmeyer, of Columbia, and Michael  Tanner, of Bamberg, for Appellant.

Matthew  Cook, of Columbia, for Respondents.

GEATHERS, J.:  In this workers' compensation case, Appellant Mary Adams seeks review of the circuit court's conclusion that her claim, filed over twenty-three years after her injury, was barred by the statute of limitations, S.C. Code Ann. § 42-15-40 (Supp. 2008).  Adams argues that Respondents Westinghouse SRS and Wausau Insurance Companies waived their right to assert any affirmative defenses to her claim, including the statute of limitations, because they failed to timely respond to her claim.  Despite the obvious disadvantages of allowing this extraordinarily stale claim to proceed forward, we reach the inescapable conclusion that Respondents' statute of limitations defense is procedurally barred.  Therefore, we must reverse the circuit court's order and remand the matter to the Commission.

FACTS/PROCEDURAL HISTORY

On July 7, 1977, Adams injured her neck and back when she was pinned in a machine while working for Westinghouse SRS.  Her first attempt to notify the Workers' Compensation Commission of a claim was when she filed a Form 50 on December 14, 2000, over twenty-three years after her injury.  Other than a failed attempt to retain an attorney in April 2002, there is nothing in the record to show the subsequent history of this filing.  On August 23, 2004, Adams filed a second Form 50. 

On September 3, 2004, the Commission mailed the Form 50 to Wausau at its Maitland, Florida office.  Respondents filed their Form 51 Answer to Adams' claim on October 12, 2004.  They asserted numerous defenses, including the statute of limitations and the doctrine of laches.  The single commissioner conducted a hearing on the claim on January 20, 2005, and filed an order denying the claim on March 15, 2005.  The single commissioner concluded that Adams' claim was barred under section 42-15-40 because she did not timely file her claim.[1] The single commissioner also concluded that Adams' claim was barred by the doctrine of laches. 

The Appellate Panel reversed the single commissioner's order on the ground that Respondents failed to file their Form 51 within the thirty-day deadline set forth in 25A S.C. Code Ann. Regs. 67-603.B(1) (Supp. 2008).  Regulation 67-603.B(1) requires the employer's attorney to file the Form 51 with the Commission's Judicial Department within thirty days of service of the Form 50.  The Commission concluded that because Respondents failed to timely file their response to Adams' claim, they waived their affirmative defenses pursuant to 25A S.C. Code Ann. Regs. 67-603.C (Supp. 2008).[2] The Commission also concluded that even if Respondents did not forfeit their right to raise the defense of laches, they did not provide any admissible evidence of any of the elements of laches, such as prejudice. 

The circuit court reversed the Appellate Panel's order and reinstated the single commissioner's order.  The circuit court concluded that Respondents' Form 51 was not due for filing until October 12, 2004, the same day Respondents filed their Form 51.  The circuit court explained that Respondents could take advantage of Rule 6(e), SCRCP, which allows an addition of five days to a response deadline when a party has been served with a notice or paper by mail.[3] The circuit court calculated the due date for the Form 51 by tacking on an additional five days at the end of the thirty-day period and by further extending the period to account for weekend days both before and after adding the five days.  The circuit court stated,

A letter was sent out dated September 3, 2004 that achieved proper service. Under 67-209 [sic], the [thirty-day] period in which the respondent must respond would then commence on the next day, September 4, 2004.  See S.C. Code Regs. 67-209(A) (2006).  When counting these days, '[t]he day of the event, after which a designated period of time begins, is excluded.'  Id.  Therefore, an answer was due by the end of a [thirty-day] period that began to run on September 4.  This period expired on October 3, which in 2004 fell on a Sunday.  When determining the length of an answer term, weekend days and holidays are included 'unless the designated time period ends on a Saturday, Sunday, State or Federal holiday.'  S.C. Code Regs. 67-209(B) (emphasis added).  In those types of cases, the final day the answer is due is 'the next day that is not a Saturday, Sunday, State or Federal holiday.'  Id.  In 2004, the next non-weekend or non-holiday date to follow October 3 would have been Monday October 4, 2004.  Under 67-209 [sic], the [thirty-day] period extended to that date. The period would then extend again under Rule 6 of the South Carolina Rules of Procedure.

. . .

South Carolina rule of Civil Procedure 6(e) allows a 'grace period' of five days beyond the normal due date of any action in response to something served via U.S. Mail[.]

. . .

In the present case, after applying South Carolina Code of Regulations 67-209, the [thirty-day] term available for an answer ended on October 4, 2004.  Because the service required an answer, however, an additional five (5) days can be added beyond this date.  That places the expiration on the ninth day of October, which in 2004 fell on a Saturday.

With the new expiration date of October 9, 2004 occurring on a weekend, Section 67-209(B) again applies to extend the due date to Tuesday, October 12.  In 2004 October 10 fell on a Sunday and October 11 was a federal holiday—Columbus Day. Therefore, the expiration date had to extend to the first non-weekend or non-holiday date:  October 12, 2004.

(emphasis added).

The circuit court concluded that Respondents timely filed their Form 51 and that they did not waive their affirmative defenses.  The circuit court declined to rule on the issue of laches but concluded that Adams' claim was barred by the statute of limitations.  This appeal followed.

ISSUES ON APPEAL

1.	Did the circuit court err in concluding that Respondents timely filed their Form 51 because Rule 6(e), SCRCP, allowed them a five-day  grace period?
2.	Did the circuit court err in concluding that Respondents did not waive their affirmative defenses?

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act establishes the standard for judicial review of decisions by the Appellate Panel of the Workers' Compensation Commission.  See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Specifically, section 1-23-380 of the South Carolina Code (Supp. 2008) provides that this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse when the decision is affected by an error of law.  See Hamilton v. Bob Bennett Ford, 336 S.C. 72, 76, 518 S.E.2d 599, 600-01 (Ct. App. 1999) (interpreting section 1-23-380), modified on other grounds, 339 S.C. 68, 528 S.E.2d 667 (2000). Section 1-23-380 allows reversal of a factual finding of the Appellate Panel only if it is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."

In reviewing workers' compensation decisions, we ascertain the propriety of the circuit court's determination as to whether the Appellate Panel's findings of fact are supported by substantial evidence in the record and whether the Panel's decision is affected by an error of law.  Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006). 

LAW/ANALYSIS

I.  Timeliness of Response to Claim

Adams assigns error to the circuit court's conclusion that Respondents timely filed their Form 51 due to the additional five days allowed by Rule 6(e), SCRCP.[4] Adams argues that Rule 6(e) does not apply to procedures under the Workers' Compensation Law.[5] We agree.

Regulation 67-603.B(1) of the South Carolina Code (Supp. 2008) requires the employer's attorney to file the Form 51 with the Commission's Judicial Department within thirty days of service of the employee's Form 50.  Additionally, like Rule 6(a) of the South Carolina Rules of Civil Procedure, Regulation 67-209 of the South Carolina Code (1990) sets forth requirements for the computation of time in determining filing or service deadlines.  It provides:

A. The day of the event, after which a designated period of time begins, is excluded. The last day, of the designated time period, is included.

B. Saturdays, Sundays, State, and Federal holidays are included unless the designated time period ends on a Saturday, Sunday, State, or Federal holiday in which case the next day that is not a Saturday, Sunday, State, or Federal holiday is included as the last day.

Regulation 67-209 does not allow additional days to respond when a party has been served by mail.  Further, the only other workers' compensation regulation that allows an additional five days applies only in the instance when the Commission has served a party with an order using first class mail.  Regulation 67-213.A of the South Carolina Code (Supp. 2008) provides as follows:

A. The Commission serves orders by certified mail, return receipt requested or by deposit in the United States Postal Service, first class postage, addressed to the parties according to R.67-210.

. . .

(2) When service is made by certified mail, the date of service is the date of the addressee's receipt indicated by the certified mail return receipt. When service is made by first class mail, five days are added to the date of mailing. Service by first class mail is deemed complete five days after the date of deposit in the United States Postal Service.

(emphasis added). 

Because an additional five days to take action is expressly allowed by Regulation 67-213.A when the Commission serves an order by first class mail but not provided for in any other workers' compensation regulation, a five-day addition is clearly not allowed under any other circumstances in workers' compensation cases.  See Riverwoods, LLC v. County of Charleston, 349 S.C. 378, 384, 563 S.E.2d 651, 655 (2002) (citing the rule of statutory construction that to express or include one thing implies the exclusion of another, or of the alternative); Scholtec v. Estate of Reeves, 327 S.C. 551, 559, 490 S.E.2d 603, 607 (Ct. App. 1997) (referencing the legal maxim "expressio unius est exclusio alterius" as the long-standing rule of statutory construction that affirmative words imply a negative of that which is not affirmed); see also Scott v. State, 334 S.C. 248, 254-55, 513 S.E.2d 100, 104 (1999) (holding that the Legislature did not intend for a bond forfeiture to be the equivalent of a conviction under South Carolina Code Section 44-53-470 (1985) and noting that the Legislature presumably was aware that it had defined a conviction to include bond forfeitures in other statutes). 

Respondents argue that because the South Carolina Rules of Civil Procedure have been applied to proceedings before the Administrative Law Court, which, like the Commission, is governed by the Administrative Procedures Act, it is reasonable to conclude that these rules also apply to the Commission to the extent that they are not inconsistent with the Commission's regulations.  Respondents cite S.C. Code Ann. § 1-23-650 (Supp. 2008) in support of their proposition that the rules automatically apply to the ALC.  However, section 1-23-650 does not stand for this proposition.  Rather, this statute authorizes the ALC to establish its own rules of procedure "consistent with the rules of procedure governing civil actions in courts of common pleas[.]" 

The ALC's own rules determine whether it is appropriate to use the South Carolina Rules of Civil Procedure as a gap filler─their application to ALC proceedings is not automatic.  See ALC Rule 68 ("The South Carolina Rules of Civil Procedure and the South Carolina Appellate Court Rules may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.") (emphasis added); see also Home Med. Sys., Inc. v. S.C. Dept. of Revenue, Op. No. 26638 (S.C. Sup. Ct. filed April 20, 2009) (Shearouse Adv. Sh. No. 17 at 25)  (holding that Rule 59(e), SCRCP, motions are permitted in ALC proceedings because the ALC rules specifically allow the Rules of Civil Procedure to apply to resolve questions not addressed by the ALC rules and because a Rule 59(e) motion is necessary for issue preservation in administrative proceedings when a party raises an issue or argument, but the ALC does not rule on it).

In stark contrast, there is no provision in the workers' compensation regulations similar to ALC Rule 68, allowing for the South Carolina Rules of Civil Procedure to fill in any gaps.  In any event, the need for the additional five days under certain circumstances was obviously contemplated by the Commission when it drafted the workers' compensation regulations, as evidenced by 25A S.C. Code Ann. Regs. 67-213.A (Supp. 2008) (allowing an additional five days when the Commission serves an order by first class mail).  Therefore, there is no true "gap" in the regulations resulting in a need to refer to any other provision outside the workers' compensation regulations.

Furthermore, the Commission's reference to the Rules of Civil Procedure in certain regulations but not in others indicates that in promulgating regulations, the Commission was aware of the wisdom of incorporating the Rules under those circumstances specifically identified by regulation rather than adopting the Rules as a general gap filler to be applied on an ad hoc basis.  See 25A S.C. Code Ann. Regs. 67-211 (Supp. 2008) (allowing service of the claimant's hearing request pursuant to the South Carolina Rules of Civil Procedure if the hearing request is returned after mailing).  Notably absent from the workers' compensation regulations is a reference to Rule 6(e), SCRCP.

Moreover, this Court must give deference to the Commission's interpretation of its own regulations in determining whether the Commission's decision was affected by an error of law.  See Earl v. HTH Assocs., Inc./Ace USA Ins. Co. of N. Am., 368 S.C. 76, 81, 627 S.E.2d 760, 762 (Ct. App. 2006) (holding that the decision of an administrative agency interpreting its own regulations is given great deference); cf. Faile v. S.C. Employment Sec. Comm'n, 267 S.C. 536, 540, 230 S.E.2d 219, 221-22 (1976) (holding that the construction of a statute by the agency charged with executing it is entitled to the most respectful consideration and should not be overruled without cogent reasons). Additionally, workers' compensation regulations must be construed in favor of the employee in doubtful cases.  See 25A S.C. Code Ann. Regs. 67-201.B (1990) ("In doubtful cases, the application of these regulations shall be in favor of the injured employee."); Earl, 368 S.C. at 80-81, 627 S.E.2d at 762 (holding that workers' compensation statutes and regulations are to be construed liberally in favor of coverage).[6] Hence, the absence of any statute, regulation, or appellate opinion expressly allowing the application of Rule 6(e) to workers' compensation regulations compels the conclusion that the Appellate Panel did not commit an error of law in computing Respondents' filing deadline without regard to Rule 6(e), SCRCP.

Assuming, arguendo, that Rule 6(e), SCRCP, does apply to workers' compensation procedure, the circuit court incorrectly applied Rule 6(e) in computing the filing deadline for Respondents' Form 51.  The sole purpose of Rule 6(e) is to compensate for the time that the notice, or other paper requiring a response, is in the mail.  See Witzig v. Witzig, 325 S.C. 363, 366, 479 S.E.2d 297, 299 (Ct. App. 1996) (citing James F. Flanagan, South Carolina Civil Procedure 52 (2d ed. 1996)) (noting that the extra five days provided by Rule 6(e) compensates for the time the notice or other paper is in the mail).  Therefore, it is important to implement this purpose without granting more of a time extension than was intended by the drafters of Rule 6(e). This can be accomplished by counting out the total of five days plus the number of the days in the prescribed period—here, thirty-five consecutive days—while including intermediate weekend days and holidays in the computation.  See Rule 6(a), SCRCP (providing that weekends and holidays are excluded only when they fall at the end of the prescribed period or when the prescribed period is less than seven days) (emphasis added).  However, allowing the addition of five days after separately computing the prescribed period, so that holidays and weekend days falling on day thirty are excluded from the computation, creates a windfall to the respondent that could not have been intended by the drafters of Rule 6(e).  This is what the circuit court did. 

The circuit court's application of Rule 6(e) allowed Respondents to exclude a weekend day on two separate occasions─both before and after adding the five days.  Given the explicit directions in Rule 6(a) for including or excluding certain days in the computation of deadlines, it is probable the rule would have explicitly directed the exclusion of weekend days both before and after adding the five days under subsection (e) if the drafters of the rule had intended such a result.  Cf. Four Video Slot Machines, 317 S.C. at 400, 453 S.E.2d at 898 (holding that the meaning of general words in a statute may be restricted by words of specification which precede them on the theory that, had the legislature intended the general words be used in their unrestricted sense, there would have been no mention of the particular class). All told, under the circuit court's computation, Respondents were allowed a total of thirty-nine days to respond, rather than thirty-five. 

Here, the due date for Respondents' Form 51 that would result from adding five days to the prescribed period would be Friday, October 8.  The thirty-five day period would begin on September 4 and would end on October 8, a weekday, because October 3, an intermediate weekend day, must be included in the computation.  See Rule 6(a), SCRCP (providing that weekends and holidays are excluded only when they fall at the end of the prescribed period or when the prescribed period is less than seven days) (emphasis added).  Again, Respondents did not file their Form 51 until October 12, 2004. 

Undoubtedly, Adams' delay in filing her claim was egregious.  Hence, it is not surprising that Respondents argue that the concept of fundamental fairness should allow the application of Rule 6(e), SCRCP.[7]  However, the Commission and the Legislature presumably took fairness into account when they clearly declined to incorporate Rule 6(e) into the Commission's regulations.  This Court must apply the law as it is written, and the strength of a defense on its merits certainly cannot justify manipulating the plain language of the law to salvage the defense when it is procedurally barred.  See Shelton v. Greenville County, 194 S.C. 506, 512, 10 S.E.2d 12, 14 (1940) ("[O]ur sole duty is to declare the law as it is written."). 

Based on the foregoing, the circuit court's conclusion that Respondents timely filed their Form 51 was incorrect.  Likewise, the circuit court's conclusion that the Appellate Panel's decision was affected by an error of law was improper.  Therefore, the circuit court should not have reversed the Appellate Panel's decision.  See S.C. Code Ann. § 1-23-380 (Supp. 2008) (providing that this Court may reverse an agency decision when the decision is affected by an error of law); Hamilton, 336 S.C. at 76, 518 S.E.2d at 600-01 (interpreting section 1-23-380).

II.  Waiver of Affirmative Defenses

Adams also argues that Respondents waived their affirmative defenses, including the defenses of the statute of limitations and laches, because they failed to file their Form 51 within the period set forth in 25A S.C. Code Ann. Regs. 67-603.B(1) (Supp. 2008).  We agree.

Regulation 67-603.C of the South Carolina Code (Supp. 2008) provides as follows:

Failure to file a Form 51 or Form 53 within the period in section B(1) shall be deemed a general denial of liability for the benefits claimed and the employer and its representative by the failure to respond within the period in section B(1) shall forfeit each special and affirmative defense allowed by the Act including the defenses available in Sections 42-9-60, 42-15-20, 42-15-40, and 42-17-90 of the Act.

(emphasis added).

The words of a statute or regulation "must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation."  Sloan v. Greenville County, 356 S.C. 531, 563, 590 S.E.2d 338, 355 (Ct. App. 2003).  The clear import of the language of Regulation 67-603.C is this:  "If you are late in filing a Form 51 or Form 53, the only defense you have left is a general denial of liability."  Therefore, Respondents' failure to timely file their Form 51 resulted in their forfeiture of all defenses, other than the general denial of liability, they would otherwise be allowed to assert in a workers' compensation proceeding.  This result is consistent with the longstanding view of our appellate courts that a defendant may waive the defense of the statute of limitations.  See Mende v. Conway Hosp., Inc., 304 S.C. 313, 315, 404 S.E.2d 33, 34 (1991) (holding that waiver of the statute of limitations may result from any action or inaction manifestly inconsistent with an intention to insist on the statute). 

Respondents argue that even if their filing of Form 51 was not timely, their laches defense has not been forfeited under Regulation 67-603.C because the regulation's forfeiture provision only applies to "special and affirmative defenses allowed by the Workers' Compensation Act" and because the Act does not specifically mention this equitable defense.[8]  However, the unavoidable corollary of Respondents' argument is that the regulation's forfeiture provision does not apply to laches because it is not allowed by the Act.[9]  If the defense is not allowed under the Act, then that is the end of our inquiry and the defense is simply unavailable in a proceeding before the Commission.

Even assuming, arguendo, that the defense of laches is allowed by the Act, we arrive back where we started—all special and affirmative defenses allowed by the Act are waived by the employer pursuant to Regulation 67-603.C when the employer fails to timely file its Form 51. 

In sum, a special or affirmative defense is either allowed by the Act or not allowed by the Act.  To infer that any special or affirmative defense not mentioned in the Act is not allowed by the Act for purposes of the waiver provision of Regulation 67-603.C, yet allowed by the Act for all other purposes is analytically inconsistent and calls on this Court to supply additional terms to the Act's provisions, an action that is not within this Court's authority.  See State v. White, 338 S.C. 56, 58, 525 S.E.2d 261, 263 (Ct. App. 1999) ("We, of course, must take the statute as we find it, giving effect to the legislative intent as expressed in its language. We cannot under our power of construction supply an omission in the  statute."); see also S.C. Farm Bureau Mut. Ins. Co. v. Mumford, 299 S.C. 14, 19, 382 S.E.2d 11, 14 (Ct. App. 1989) (holding that once the Legislature has made a choice, there is no room for the courts to impose a different judgment based upon their own notions of public policy.). 

CONCLUSION

Accordingly, the circuit court's order is

REVERSED AND REMANDED.

HUFF, J., concurs.

PIEPER, J., dissents in a separate opinion.

PIEPER, J., dissenting:

I respectfully dissent.  This case involves a workers’ compensation claim filed more than twenty years after the date of the accident.  Assuming, arguendo, the employer's Form 51 was untimely, I do not believe that the doctrine of laches would be waived as the waiver applies only to those “special and affirmative defenses allowed by the Workers’ Compensation Act.”  S.C. Code Ann. Regs. 67-603(C) (Supp. 2008). Since the equitable doctrine of laches is not addressed by the Act, I would find that it has not been waived.

The issue of laches has been preserved by the respondents.  The single commissioner addressed laches as did the Commission, although the circuit judge declined to address the issue in light of her ruling in favor of the respondents.  Based upon a favorable lower court ruling, the respondents were not required to return to the circuit court and ask it to address all additional grounds that may sustain the decision, particularly in light of the fact that those arguments were raised and presented below.  See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000).

Having determined the issue preserved for review, I would find error in the findings and conclusions of the Commission.  The single commissioner found the doctrine of laches applicable. The Commission found a waiver of laches under its own regulations and, as an alternative, found the record only contained inadmissible evidence on the issue.  As noted above, I would conclude that the Commission erred as a matter of law in finding a waiver of laches under its regulations. 

Moreover, as to its alternative finding that the respondents had not presented any admissible evidence of laches, I would hold that finding clearly erroneous.  "Laches is an equitable doctrine defined as neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done." Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 432, 673 S.E.2d 448, 456 (2009) (internal quotations omitted).  In order to establish laches, a party must show that the complaining party unreasonably delayed its assertion of a right, resulting in prejudice to the party asserting laches.  Id. 

In the case at bar, upon cross-examination, the respondents established that claimant did not have an excuse or explanation as to why she waited to file her claim.  Further, a review of the record indicates the lack of any form of objection to the manner in which counsel presented the additional elements of laches to the single commissioner; therefore, in the absence of any such objection, the single commissioner accepted the proffered evidence as to those elements. Specifically, counsel indicated to the single commissioner that two witnesses could not be found and noted the difficulty in evaluating this claim over twenty years later.  Thus, I would hold the Commission committed an error of law and that its factual findings in support thereof to be clearly erroneous.

Finally, I do not agree with the possible rejection of the application of laches to a workers’ compensation proceeding, nor, on a similar note, would I accept the rejection of other equitable doctrines.  If the General Assembly had intended to omit the application of equitable doctrines in its statutory enactment, it would have done so.   Moreover, appellate jurisprudence in our state recognizes the doctrine of laches in workers' compensation cases.  See, e.g., Richey v. Dickenson, 359 S.C. 609, 612, 598 S.E.2d 307, 309 (Ct. App. 2004) ("This court has recognized the applicability of the doctrine of laches in a workers' compensation claim.") (citations omitted).  Consequently, equitable doctrines remain viable to address a situation where there is not an adequate remedy at law.  See Roger Young and Stephen Spitz, Suem—Spitz's Ultimate Equitable Maxim: In Equity, Good Guys Should Win and Bad Guys Should Lose, 55 S.C. L. Rev 175, 188 (Fall 2003) (the notion that equity does not aid those who sleep on their rights is merely a summary of the well-known equitable doctrine of laches).

On appeal, we may consider any other sustaining grounds appearing in the record and may affirm on any of those grounds.  I'On, 338 S.C. at 420, 526 S.E.2d at 723-24 (holding an appellate court may affirm the lower court's judgment for any reason appearing in the record on appeal).  Accordingly, I would affirm the circuit court's dismissal of the case based upon the additional sustaining ground of laches. Otherwise, because the single commissioner accepted the proffered information at the hearing without objection, I would, at a minimum, remand for full development of the record on the issue of laches since appellant’s claim for injuries has not been developed; the doctrine of laches should not be summarily rejected at the outset of this proceeding.  Quite simply, equity cannot act prematurely with a blind eye to all of the facts and circumstances that remain to be developed on this workers' compensation claim.

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[1] Section 42-15-40 provides that the right to compensation is barred unless a claim is filed with the Commission within two years after an accident.

[2] Regulation 67-603.C states,

Failure to file a Form 51 or Form 53 within the period in section B(1) shall be deemed a general denial of liability for the benefits claimed and the employer and its representative by the failure to respond within the period in section B(1) shall forfeit each special and affirmative defense allowed by the Act including the defenses available in Sections 42-9-60, 42-15-20, 42-15-40, and 42-17-90 of the Act.

[3] The circuit court stated in its order that Wausau's Maitland office, the location where the Commission sent Adams' Form 50, does not handle Westinghouse SRS claims, but that Wausau handles Westinghouse SRS claims at its office in Wausau, Wisconsin.  The order further states that Respondents did not receive the Form 50 until October 11, 2004.  However, nothing in the record indicates that Respondents accused the Commission of using an invalid address to serve the Form 50 or that the circuit court so concluded.  Notably, the burden is on the insurance carrier to provide the Commission with the address for its authorized recipient of service.  See 25A S.C. Code Ann. Regs. 67-401 (1990) (requiring workers' compensation insurance carriers doing business in this State to designate one address as the authorized recipient of service, mail, documentation, requests, inquiries, and other demands concerning the employer or its insurance carrier and requiring the carrier to provide in writing the name, address, and telephone number of the authorized recipient to the Commission's Coverage and Compliance Department).

[4] Rule 6(e), SCRCP, states,

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or upon a person designated by statute to accept service, five days shall be added to the prescribed period.

[5] S.C. Code Ann. § 42-1-10 to -19-50 (1985 & Supp. 2008).

[6] In Wilkinson v. Palmetto State Transportation Co., 382 S.C. 295, 676 S.E.2d 700 (2009), our Supreme Court stated that its members remain sensitive "to the general principle sanctioned by the Legislature that workers' compensation laws are to be construed liberally in favor of coverage."  Id. at 298, 676 S.E.2d at 702 (emphasis added).  The Court cautioned that the principle "does not go so far as to justify an analytical framework that preordains the result."  Id.  However, because the question before the Court did not involve the application of a regulation, it is doubtful the Court meant to address the mandatory language of Regulation 67-201.B.

[7] Respondents have not argued that they were denied proper notice or an opportunity to be heard. 

[8] By way of example, S.C. Code Ann. § 42-9-60 (Supp. 2008) provides for the defense of employee intoxication and S.C. Code Ann. § 42-17-90 (Supp. 2008) allows for a review of an award on the ground of a change of condition.  

[9] We assume, as we must, that the term "allowed," as used in Regulation 67-603.C, takes on its customary meaning and thus is not as limited in scope as the terms "mentioned" or "addressed."  See S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 380 S.C. 349, 367, 669 S.E.2d 899, 908 (Ct. App. 2008) ("If the General Assembly declined to define a term within the statute, the Court should construe the word in accordance with its usual and customary meaning.").