ORDERS:
ORDER OF REMAND
In this matter, Express Temps, Inc. appeals the Department's decision to adopt the
findings of the National Council on Compensation Insurance, which combined the experience of
Appellant with that of Personnel Solutions, Inc. for the purpose of rating workers' compensation
insurance premiums. Appellant appeals pursuant to S.C. Code Ann. section 38-3-210 (Supp.
1997), which provides that "any order or decision made, issued, or executed by the director or
his designee is subject to judicial review in accordance with the appellate procedures of the
South Carolina Administrative Law Judge Division, as provided by law . . . ."
Section 38-3-210 implicitly presumes that before a dispute reaches the ALJD as an
appeal, the Department has conducted a contested case hearing consistent with the
Administrative Procedures Act, S.C. Code Ann. sections 1-23-310 et seq. (Rev. 1986 & Supp.
1997). Cf. S.C. Code Ann. Regs. 69-31 (1989) (practice and procedure in hearings before the
Department). Sections 38-3-150 and 38-3-170, embodied in the same chapter as section 38-3-210, evince the propriety of conducting a contested case hearing in this type of case.(1)
A party must exhaust all available administrative remedies before seeking judicial review.
S.C. Code Ann. § 1-23-380 (Supp. 1997). See also Garris v. Governing Bd. of the S.C.
Reinsurance Facility, 319 S.C. 388, 461 S.E.2d 819 (1995). The agency transmittal did not
show that the requisite administrative remedies were exhausted before Appellant appealed to the
ALJD. No record of a contested case hearing with evidence received or considered, or any
agency decision setting forth findings of fact and conclusions of law appears to exist. See S.C.
Code Ann. § 1-23-350 (Rev. 1986). Moreover, a conference call with counsel for the parties
conducted on June 2, 1998 confirmed that a contested case hearing had not been conducted in
this matter. "[T]he exhaustion requirement may be excused where the facts are undisputed and
the only issues are of law." State Dairy Comm'n of S.C. v. Pet, Inc., 283 S.C. 359, 324 S.E.2d
56, 57 (1984); see also Bernard Schwartz, Administrative Law, § 8.40 (3d ed. 1991). In the
instant case, nothing before this tribunal demonstrates that the facts are undisputed.
While S.C. Code Ann. section 1-23-600 (B) gives this tribunal general jurisdiction of
contested case actions arising in the executive branch of government with a single hearing
officer, section 38-3-210, which specifically grants appellate jurisdiction, controls. Atlas Food
Sys. and Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 462
S.E.2d 858 (1995) (holding that a general rule of statutory construction is that a specific statute
prevails over a more general one). A court has a duty to determine whether it has jurisdiction in
a matter. Bridges v. Wyandotte Worsted Co., 243 S.C. 1. 132 S.E.2d 18 (1963). Further, an
inquiry into jurisdiction is proper even without an objection regarding jurisdiction from either
party. Williamson v. Richards, 158 S.C. 534, 155 S.E.2d 890 (1930).
IT IS THEREFORE ORDERED THAT THIS MATTER IS REMANDED to the
South Carolina Department of Insurance to conduct a contested case hearing consistent with the
Administrative Procedures Act, S.C. Code Ann. sections 1-23-310, et seq. (Rev. 1986 & Supp.
1997), and the applicable provisions of Title 38 of the 1976 Code, as amended.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
ADMINISTRATIVE LAW JUDGE
June 29, 1998
Columbia, South Carolina
1. Unlike the South Carolina Merit Rating Plan where an aggrieved insured may seek review
informally and without a hearing and, then appeal such decision to the ALJD pursuant to S.C.
Code Ann. section 38-3-210 (Supp. 1997), this tribunal is unaware of a similar provision for
workers' compensation premiums. See 25A S.C. Regs. 69-13.1 IV (A-C) (Supp. 1997). |