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South Carolina
Judicial Department
2004-UP-127 - Bethea v. SC Worker's Compensation Commission


In The Court of Appeals

James F. Bethea, MD, M. David Mitchell, MD, James J. McCoy, Jr., MD, James J. Hill, Jr., MD, Donald Johnson, MD, Thomas Trancik, MD, Scott Boyd, MD, Thomas E. Pace, MD, Timothy J. Shannon, MD, Richard McCain, MD, Leonard E. Forrest, MD, Michael K, Drakeford, MD, John P. Evans, MD, and all similarly situated persons,        Appellants,


The South Carolina Workers' Compensation Commission, Companion Property & Casualty Insurance Company, Travelers Property Casualty Company, Ohio Casualty Insurance Group, Hartford Underwriters Insurance Company, The Travelers Insurance Company, CIGNA Property and Casualty Insurance Company, Blue Cross Blue Shield of South Carolina, Liberty Mutual Insurance Company, Liberty Mutual Fire Insurance Company, and all other similarly situated legal entities,        Defendants,

Of Whom The South Carolina Workers' Compensation Commission is the        Respondent.

Appeal From Richland County
J. Ernest Kinard, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-127
Submitted February 9, 2004 – Filed February 26, 2004


Paul Clarendon Ballou, of Columbia, for Appellants.

William H. Davidson, II and Andrew F. Lindemann, bothof Columbia, for Respondent.

PER CURIAM: A group of orthopaedic surgeons and neurologists (“Appellants”) brought an action against the South Carolina Workers’ Compensation Commission (“Respondent”) and numerous private insurance companies alleging they were adversely affected by Respondent’s failure to periodically review and amend their medical fee schedule to keep pace with the economy.  The trial court dismissed Appellants’ causes of action.  We affirm.


Appellants are orthopaedic surgeons and neurologists licensed to practice medicine in South Carolina.  They voluntarily treat injured South Carolina employees covered by workers’ compensation insurance.  Respondent oversees and administers the South Carolina Workers’ Compensation Act, S.C. Code Ann. §§ 42-1-10, et seq. (1985 & Supp. 2003). 

In July 1989, Respondent adopted Regulation 67-1304 governing the calculation of physician fees. [1]   Under Regulation 67-1304, physician fees were determined by first assigning a specific unit value, and then multiplying the unit value by the current conversion factor.  The conversion factor is expressed as a dollar figure and is determinative of the allowable fee paid per procedure.  The Regulation provided:

A.      The “Schedule of Fees for Physicians and Surgeons” (the “Schedule”) sets forth the criteria for determining a reasonable fee and governs determining the maximum fee chargeable.

(1)      The Occupational Medicine Committee of the South Carolina Medical Association and the Commission’s Medical Review Division reviews the Schedule annually and recommends to the Commission amendments to the Schedule.

(2)      The Commission may amend the Schedule as necessary.

B.      The Schedule catalogues and assigns a specific unit value to medical procedures listed by code number.

(1)      To determine the maximum fee allowed, locate the procedure in the Schedule and determine its unit value.  Multiply the unit value by the current conversion factor to determine the maximum fee allowed.

(2)      If a procedure is to be determined by “individual consideration” or “by report”, file a written request with the Commission’s Medical Review Division for determination of the unit value and fee allowed.

C.      The conversion factor is a variable factor which the Commission periodically amends to keep pace with the economy.  Contact the Medical Review Division to obtain the current conversion factor. 

In 1995, Respondent adopted a Medicare-patterned Resource Based Relative Value Scale (RBRVS) with a single conversion factor applicable to all procedures, surgical and non-surgical. 

Appellants filed this action on June 27, 2000 against Respondent and numerous private insurance companies.  Appellants filed an amended complaint on August 28, 2000.  Appellants alleged the Respondent violated a statutory duty and denied them equal protection and due process.  Specifically, Appellants contended Respondent failed to periodically review and amend the conversion factor to keep pace with the economy.  In addition, they argued the RBRVS system, with a single conversion factor for all procedures, surgical and non-surgical, was in violation of equal protection and procedural due process.  The Appellants also asserted a cause of action against the private insurance companies for unjust enrichment. 

The trial court ruled the Appellants’ cause of action for violation of a statutory duty failed because the statutory authority of the Respondent does not create a private cause of action.  It found the Respondent did not violate the Appellants’ rights to equal protection or due process.  The trial court also dismissed the claims for unjust enrichment against the private insurance companies.  In addition, the court concluded all of Appellants’ causes of action accrued in 1995 and were barred by the statute of limitations.  This appeal followed.  


On appeal, Appellants do not challenge the trial court’s ruling that their causes of action accrued in 1995 and that they brought this action after either the two-year statute of limitations found in S.C. Code Ann. 15-78-110 (Supp. 2003) or the three year statute of limitations found in S.C. Code Ann. § 15-3-530 (Supp. 2003).  The Appellants instead argue Respondent is equitably estopped from asserting a statute of limitations defense.  We find Appellants did not preserve the equitable estoppel issue as it applies to Respondent.  Appellants did not plead an estoppel issue as to Respondent.  The trial court’s order indicates Appellants argued the insurers were equitably estopped from asserting the statute of limitations defense.  However, there is no evidence in the record showing the Appellants argued Respondent was equitably estopped from asserting the defense.  The trial court’s order only addressed the issue of equitable estoppel as it applies to the insurers.  In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge.  Holy Loch Distrib., Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000).  Even if the Appellants raised the argument to the trial court that the Respondent should be estopped from asserting the statute of limitations defense, it failed to raise in a post-trial motion the trial court’s failure to address this issue in its order.  Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (finding issue was not preserved for appellate review where the trial judge did not explicitly rule on the appellant’s argument and the appellant made no Rule 59(e), SCRCP motion to alter or amend the judgment).  As the Appellants’ estoppel argument is not properly before this court, we may not consider it. 

In the very last line of their brief, the Appellants assert “the discovery rule should apply to toll the statute of limitations until the time that the Appellants actually became aware of the duty by the Commission to periodically adjust their fees to keep pace with the economy, which was in the early months of the year 2000.”  This is the Appellants’ first mention of the discovery rule, which is what they argued to the trial court in response to the Respondent’s assertion that the statute of limitations barred their claim.  The Appellants did not set forth this argument in their statement of the issues on appeal.  We find Appellants failed to properly raise to this court any argument they intended to make concerning the discovery rule. See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”); Langehans v. Smith, 347 S.C. 348, 352, 554 S.E.2d 681, 683 (Ct. App. 2001) (stating that an issue which is not supported by authority or sufficiently argued is not preserved for appellate review).

The trial court’s determination that the statute of limitations had run on Appellants’ claims against the Respondent because they were brought more than three years after they had accrued stands unchallenged and constitutes the law of the case.  See Charleston Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000)  (stating that as a general rule, an unchallenged ruling, right or wrong, is the law of the case and required affirmance.)  Accordingly, we must affirm on this ground. [2]  


HUFF, STILWELL, and CURETON, JJ., concur. 

[1] Although subsequently amended by State Register Volume 21, Issue No. 6, Part 2, effective June 27, 1997, the applicable language at all times pertinent to the present appeal is found in 25A S.C. Code Ann. Regs. 67-1304 (1990).

[2] Due to our conclusion regarding the statute of limitations issue, we do not address the remaining issues on appeal.