A. This regulation
governs motions practice at all levels of proceedings before the Commission. A
party may file a motion when a form is not applicable. The Commission will
accept motions including, but not limited to, a motion
(1) Relating to a subpoena or
discovery;
(2) Relating to the
appointment of a Guardian ad Litem;
(3) Relating to an attorney's appearance,
withdrawal, or fee;
(4) Relating to
a claim pending Commission review;
(5) Relating to postponing or adjourning a
hearing;
(6) Relating to
self-insurance privileges;
(7)
Relating to penalties and or interest;
(8) Relating to third party
practice.
B. The
Commission will not address a motion involving the merits of the claim,
including, but not limited to, a motion for
(1) dismissal; or
(2) summary judgment.
The single Commissioner or Full Commission may entertain
motions to reconsider an order, opinion, or award if the purpose of the motion
is not an attempt to reargue the merits of the dispute. Any motion for
reconsideration must be made within five (5) days of the date that the order,
opinion, or award is served, and shall not be made if any party already has
filed an appeal of the order, opinion, or award. If a motion for
reconsideration is properly filed consistent with the provisions of this
subsection, the order, opinion, or award under reconsideration is not
considered final until the motion for reconsideration has been disposed of by
the single Commissioner or Full Commission.
C. The Commission does not provide a form for
a motion. A motion shall contain a complete caption of the case including the
title of the action, the state and county in which the injury occurred, the
Commission's name, the workers' compensation file number, and a designation of
the relief or order sought.
D. The
body of the motion shall contain numbered paragraphs each limited to a
statement of a single set of circumstances. The final paragraph of the motion
shall state specifically the relief or order sought.
(1) If the grounds on which the motion or
reply depend is based on the existence of facts not in the Commission's file,
the moving party shall file an affidavit or affidavits evidencing those facts.
The opposing party may file an affidavit or affidavits in reply.
(2) If the motion or reply depends on the
existence of facts in evidence or are admitted in forms on file with the
Commission, the party shall cite the document and page
number.
E. When the
claimant or an uninsured employer is not represented by an attorney, the moving
party shall serve the motion by personal service or by certified mail, return
receipt requested, delivery restricted to the addressee.
(1) When service is by certified mail,
service is complete the date of the addressee's receipt of the mailing as
indicated by the signed certified return receipt. Otherwise, the moving party
shall serve the motion by any of the methods listed or by depositing the motion
in the United States Postal Service, first class postage, addressed to the
appropriate party.
(2) If the
mailing is returned, service may be completed pursuant to the South Carolina
Rules of Civil Procedure.
F. The moving party shall file the motion and
proof of service with the Judicial Department, and may attach a memorandum in
support of the motion. The opposing party may file a memorandum in reply within
ten days of service of the motion. The parties may agree to an extension by
filing a written consent. Failure to respond is deemed a general denial. No
further memoranda are allowed, unless requested by a Commissioner or the
Commission.
G. The jurisdictional
commissioner or Full Commission, if an appeal is pending, may consider the
motion after the opposing party has had ten days' notice of the motion, and
shall grant or deny the relief requested.
(1)
The jurisdictional commissioner may hear the motion in any county or by
telephone conference call; however, a hearing is not required.
(2) The jurisdictional commissioner shall
issue a written decision to be filed with the record and served on all
parties.
H. All motions
filed by a party represented by an attorney shall contain an affirmation that
prior to filing the motion, the movant's counsel communicated, verbally or in
writing, with opposing counsel and attempted in good faith to resolve the
matter contained in the motion, unless the movant's counsel certifies that
consultation (1) would serve no useful purpose or (2) could not be timely
held.
