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

Ricky Watts, Respondent

C.M. Tucker Lumber Companies, Employer, and Palmetto Timber SI Fund/Walker Hunter and Associates, Inc., Carrier, Appellants.

Appeal From Chesterfield County
James E. Lockemy, Circuit Court Judge

Unpublished Opinion No. 2011-UP-370
Submitted June 1, 2011 – Filed July 21, 2011

APPEAL DISMISSED

W. Hugh McAngus, of Columbia, Weston Adams, III, Helen F. Hiser, and C. Edward Rawl, Jr., of Columbia, for Appellants.

Gerald Malloy, of Hartsville, and Preston F. McDaniel, of Columbia, for Respondent.

PER CURIAM: C.M. Tucker Lumber Companies, Employer, and Palmetto Timber S.I. Fund and Walker, Hunter & Associates, Carrier (collectively Employer) appeal the order of the circuit court remanding the case to the Workers' Compensation Commission to appoint an additional commissioner for de novo review. We dismiss[1] the appeal because the circuit court's order is not immediately appealable.

FACTS/PROCEDURAL HISTORY

Ricky Watts filed a Form 50 alleging he was injured in a work-related accident on August 9, 2005 when a fork-lift operated by another employee collided with the one he was operating. Watts stated he reported the accident to Employer that same day, reported on October 8, 2005 that he was being taken out of work by his doctor, and reported on October 20, 2005 that his injuries and medical problems were caused by the forklift accident. He explained at the hearing his pain had worsened with time.

The single commissioner held Watts had suffered a compensable injury to his lower back on August 9, 2005. The commissioner noted: "This case boils down to whether [Watts's] credibility is such that it can overcome the delay in reporting the injury to his supervisor."

Employer appealed and in a two to one decision, the Appellate Panel reversed. In its order, the Panel explained Watts was not a credible witness. It listed the evidence it found to support this finding on credibility as:

the inconsistencies in [Watts's] testimony, his failure to report the injury to the Employer, his failure to report the injury to his physicians, his testimony regarding the circumstances of his medical problems at the produce stand he operates, his conversations with the Employer on his short form disability application, and on all the facts and circumstances surrounding this claim, including [Watts's] admission that he gave deceptive testimony . . . .

In addition to the above findings, Commissioner Susan Barden included in the order her own notes as to why she found Watts was not credible. These notes provided in part, "Defendants' APA [# 14], P. 55 must be compared with [Watts's] APA page 4, in that on the [Watts's] version, it appears to the undersigned someone attempted to erase the checked 'No' as to whether the condition is work-related."

Watts appealed to the circuit court. The circuit court found the documents referred to by Commissioner Barden were two different forms filled out on different dates, not the same form, as Commissioner Barden believed. It noted neither party had asserted Watts or anyone else had attempted to alter the document. Rather, Commissioner Barden had raised the issue herself to support her conclusion that Watts was not credible. The circuit court found that due to Commissioner Barden's misperception of the documents, her decision was based upon "surmise, speculation, and innuendo," which constituted an error of law. Holding the adage you cannot unring the bell applied, the court found Commissioner Barden's review would be prejudiced and a de novo hearing was necessary.

However, the court also noted there was no indication the decision of the other commissioner who voted to deny Watts's claim was tainted by the misperception of the documents. Thus, the court held as a matter of judicial economy it would not be appropriate to remand for a de novo hearing before a full panel. Instead, the circuit court ordered Commissioner Barden's decision was reversed and remanded with instructions for the commission to appoint another commissioner to review the record and enter a decision on the appeal. The Circuit Court allowed the decision of the other two commissioners to stand. The court recognized, "Since the original decision was a vote of 2 to 1 to reverse the decision of the Hearing Commissioner based on the credibility of [Watts], the decision of this Hearing Commissioner will determine whether or not the decision of the Hearing Commissioner is reversed or is affirmed." Employer appealed to this court.

LAW/ANALYIS

We hold the circuit court's order is not immediately appealable. Our courts "have consistently held that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable." Montjoy v. Asten-Hill Dryer Fabrics, 316 S.C. 52, 52, 446 S.E.2d 618, 618 (1994). This court recently reiterated when the order on appeal remands the case to the commission for additional proceedings, the order is not a final judgment and is not immediately appealable. Long v. Sealed Air Corp., 391 S.C. 483, 487, 706 S.E.2d 34, 36 (Ct. App. 2011). The court found support for its decision in Charlotte–Mecklenburg Hospital Authority v. South Carolina Department of Health and Environmental Control, 387 S.C. 265, 692 S.E.2d 894 (2010), in which the supreme court dismissed an appeal from the Administrative Law Court. Long, 391 S.C. at 485, 706 S.E.2d at 35.

In Charlotte-Mecklenburg, the supreme court explained:

If there is some further act which must be done by the court prior to a determination of the rights of the parties, the order is interlocutory. A judgment which determines the applicable law, but leaves open questions of fact, is not a final judgment. A final judgment disposes of the whole subject matter of the action or terminates the particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined.

387 S.C. at 267, 692 S.E.2d at 894-95 (citations omitted).

During the briefing stage of this appeal, Watts filed a motion to dismiss, which the court denied.[2] Employer filed a return to the motion arguing the circuit court's order was appealable. The Employer asserted the circuit court did not have the authority to dictate the review process of the Commission and the circuit court's review was limited to determining whether the Panel's decision was supported by substantial evidence in the record. We find Employer's arguments pertain to whether the circuit court erred in its remand of the case and not whether its order is a final judgment. The order on appeal does not dispose of the whole subject matter of the action or terminate the particular proceeding or action. It is not a final judgment and is not immediately appealable.

Employer also asserted this court should exercise jurisdiction because if it does not review the circuit court's unusual remand procedure, the issue might never be reviewed. We disagree. If the Employer remains unsatisfied with the decision on remand, it may raise the issue to the court when the final judgment is on appeal.

We hold the circuit court's order is not immediately appealable. Accordingly, the appeal is

DISMISSED.

HUFF, WILLIAMS, and THOMAS, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The court did not explain its reasoning in denying the motion and did not make a specific finding that the order was appealable. Furthermore, "[i]ssues related to subject matter jurisdiction may be raised at any time." In re November 4, 2008 Bluffton Town Council Election, 385 S.C. 632, 637, 686 S.E.2d 683, 686 (2009). The lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by the appellate court. Id. Accordingly, the court's previous denial of the motion to dismiss does not prevent us from now finding the circuit court's order is not immediately appealable.