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Davis Adv. Sh. No. 8
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

    South Carolina Second

    Injury Fund,         Respondent

        v.

    American Yard

    Products,         Petitioner.

    IN RE: Cassandra

    Murray, Claimant,   v.

    American Yard

    Products, Employer.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Orangeburg County

Olin D. Burgdorf, Judge

Opinion No. 24767

Heard December 17, 1997 - Filed February 23, 1998

REVERSED AND REMANDED

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        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.

FACTS

        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-

400(f)(1985).

ISSUE

DISCUSSION

        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

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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:

        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

Fund.

        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

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).

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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

words.").

        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.

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