Davis Adv. Sh. No. 8
THE STATE OF SOUTH CAROLINA
In The Supreme Court
South Carolina Second
Injury Fund, Respondent
IN RE: Cassandra
Murray, Claimant, v.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Orangeburg County
Olin D. Burgdorf, Judge
Opinion No. 24767
Heard December 17, 1997 - Filed February 23, 1998
REVERSED AND REMANDED
- Grady L. Beard and William R. Harbison, of
- Sowell, Todd, Laffitte, Beard & Watson, of
- Columbia, for petitioner.
- Brooks Shealy, of Columbia, for respondent.
SOUTH CAROLINA SECOND INJURY FUND v. AMERICAN YARD
BURNETT, A.J.: Petitioner American Yard Products (AYP)
sought reimbursement from Respondent South Carolina Second Injury
Fund (the Fund) for workers' compensation benefits paid on behalf of
Cassandra Murray, an employee of AYP. The single commissioner ordered
reimbursement. The full Workers' Compensation Commission affirmed.
The circuit court reversed. The Court of Appeals affirmed the circuit
court. South Carolina Second Injury Fund v. American Yard Products, Op.
No. 96-UP-436 (S.C. Ct. App. filed December 2, 1996). The Court granted
AYP's petition for a writ of certiorari. We reverse and remand.
On December 9, 1991, Cassandra May sustained an injury
arising out of and in the scope of employment at AYP. By letter dated
December 27, 1991, AYP notified the Fund it was seeking reimbursement
for Ms. Murray's claim. The Fund received this letter on December 31,
1991. By letter dated January 2, 1992, the Fund acknowledged it had
received AYP's notice of claim; the Fund copied the Workers'
Compensation Commission stating, "[b]y copy of this letter, we are
informing the S.C. Workers' Compensation Commission of our involvement
in this case." The Fund argued AYP was not entitled to reimbursement
because AYP had not notified the Commission of its intent to seek
reimbursement from the Fund as required by S.C. Code Ann. § 42-9-
- Did the Court of Appeals err by holding AYP was not entitled
- to reimbursement from the Fund since it had not notified the
- Commission of its intent to seek reimbursement?
There is no dispute the Fund and the Commission had actual,
timely notice of AYP's claim for reimbursement. The Fund asserts,
however, since § 42-9-400(f) requires either the employer or the carrier to
notify the Commission of its claim for reimbursement from the Fund, AYP
failed to comply with the technical requirements of the statute and,
therefore, is not entitled to reimbursement from the Fund. We disagree.
The Court's primary function in interpreting a statute is to
SOUTH CAROLINA SECOND INJURY FUND V. AMERICAN YARD
ascertain and give effect to the intent of the legislature. Mid-State Auto
Auction of Lexington, Inc. v. Altman, __ S.C. __, 476 S.E.2d 690 (1996);
Browning v. Hartvigsen, 307 S.C. 122, 414 S.E.2d 115 (1992). As stated
in Liberty Mutual Ins. Co. v. S.C. Second Injury Fund, 318 S.C. 516, 518,
458 S.E.2d 550, 551 (1995), "[t]he real purpose of the legislature will
prevail over the literal import of the words."
South Carolina Code Ann. § 42-9-400(f)(1985) provides:
- 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.
The primary purpose of § 42-9-400(f) is to establish a deadline
for perfecting actual claims for reimbursement with the Fund.1 AYP
complied with the statutory procedure by filing a timely claim with the
Additionally, a purpose of § 42-9-400(f) is to provide notice to
the Fund and the Commission of potential claims for reimbursement. We
have strictly construed the notice requirement of § 42-9-400(f). United
Technologies v. S.C. Second Injury Fund, 318 S.C. 213, 456 S.E.2d 901
(1995)(notice within first 78 weeks of compensation includes compensation
paid under Michigan law); Merchants Mutual Ins. Co. v. S.C. Second
Injury Fund, 277 S.C. 604, 291 S.E.2d 667 (1982)(78-week notice period
not extended by discovery rule as to when employer learned employee's
subsequent injury was related to a pre-existing disease). Moreover, we
have held the right of a claimant to secure reimbursement from the Fund
depends upon complete compliance with the requirements imposed for
recovery. Boone's Masonry Construction Co., Inc. v. S.C. Second Injury
1Once a claim is submitted, the Fund may agree to reimburse an
employer or carrier. In such a case, the Fund must submit the agreement
to reimburse to the Commission for its approval. § 42-7-310(b)(1985). If
the Fund denies a claim for reimbursement, the employer or carrier may
request a hearing before the Commission on the claim. 25A S.C. Code
Ann. Reg. 67-208(D)(1990).
SOUTH CAROLINA SECOND INJURY FUND v. AMERICAN YARD
Fund, 267 S.C. 277, 227 S.E.2d 659 (1976)(employer's actual knowledge of
employee's pre-existing permanent impairment was insufficient evidence of
employer's knowledge where statute required existence of written report to
evidence employer's knowledge of pre-existing impairment). In each of
these cases, however, the Fund would have been prejudiced by the
employer's or carrier's failure to comply with the statutory requirements.
Here, however, the Fund suffered no disadvantage because AYP failed to
notify the Commission. Allowing the Fund to prevail because it notified
the Commission rather than AYP is elevating form over substance. We
decline to construe the notice requirement of § 42-9-400(f) in such a
manner. Liberty Mutual Ins. Co. v. S.C. Second Injury Fund, supra ("[t]he
real purpose of the legislature will prevail over the literal import of the
We further note the Commission itself determined it received
sufficient notice of AYP's claim, albeit from the Fund. There is no
compelling reason to overrule the Commission's conclusion. Cincinnati Ins.
Co. v. S.C. Second Injury Fund, 297 S.C. 372, 377 S.E.2d 130 (Ct. App.
1989)(the construction of a statute by the agency charged with its
administration will be accorded the most respectful consideration and will
not be overruled absent compelling reasons).
For these reasons, the decision of the Court of Appeals is
reversed. In view of the conclusion of the Court of Appeals, other issues
raised by the parties were not addressed; therefore, this matter is
remanded to the Court of Appeals for consideration of those issues.
REVERSED AND REMANDED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.