SC Workers’ Compensation – Migrant Workers – Farm Production

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court case discusses the so called “bunk house” rule for migrant workers employed in farm production jobs. As our State is still largely agricultural, we depend upon migrant farm workers to harvest crops and assist in canning operations. Given the limited window to pick and can vegetables and fruit, the hours are very long and hard during the harvest season. Many employers will provide housing on site, not as a courtesy, but as recognition that they need everybody available at the same time. Fortunately, the Court held the employer in this case responsible and established the legal liability for these type of operations in SC. Our hope is that other agriculturally based states will follow our lead to protect migrant workers from overbearing employers when they get injured on their jobs.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Frantz Pierre, Appellant,

v.

Seaside Farms, Inc., Employer, and American Home Assurance Insurance Co. C/O AIG, Carrier, Respondents.

Appeal From Beaufort County
Marvin H. Dukes, III, Circuit Court Judge

Opinion No.   26777
Heard October 20, 2009 – Filed February 16, 2010

REVERSED AND REMANDED

Ilene Stacey King, of Turnipseed & Associates, of Columbia; Shaundra F. Young and James Hadstate, both of North Charleston; and Andrew H. Turner, of Southern Poverty Law Center, of Montgomery, Alabama;  for Appellant.

Stephen L. Brown, Catherine H. Chase, and Lee Louis Gremillion, IV, all of Young Clement Rivers, of Charleston, for Respondents.

JUSTICE BEATTY:    The South Carolina Workers’ Compensation Commission denied Frantz Pierre’s claim for benefits for an injury he sustained while employed as a migrant worker with Seaside Farms, Inc.  Pierre fractured his right ankle when he fell on a wet sidewalk at housing supplied by his employer.  The circuit court affirmed, and Pierre appeals.  We reverse and remand, finding Pierre’s injury is compensable under South Carolina’s workers’ compensation law.

FACTS

The facts in this case are undisputed.  Seaside Farms, Inc. operates a 400-acre tomato farm and has a packing house on St. Helena Island, South Carolina.  Pierre, a legal resident, was recruited as a seasonal worker by a crew leader for Seaside Farms and arrived in South Carolina from Florida on June 5, 2003.  On that date, he completed paperwork at Seaside Farms and signed a written document entitled, “Terms and Conditions of Employment.”

Under the terms of employment, Pierre’s work week was Monday through Sunday, and the base pay for actual work time in the packing house was $6.00 per hour.  The terms further provided:  “There are not any set hours or days in this job, as it varies with picking in the field.  Bad weather may delay or cancel work.”  According to the president and co-owner of Seaside Farms, at peak conditions, work would start around noon for those employed in the packing facility (as opposed to those harvesting) and could run until midnight or 1:00 a.m.  He stated there are no regular hours for the employees because they “work as the season dictates and as we can harvest.”

The terms also provided that Seaside Farms would supply housing to the migrant workers at no charge.  Seaside Farms had three housing areas, and most of the individuals working in the packing facility resided at the Land’s End housing, which was about four or five miles from the packing facility.  The Land’s End housing was a block building with a tin roof and barracks-type rooms on both sides, with showers and a kitchen in the middle.  Each room held three people, and up to 96 people could reside there.  Outside the building there was also a sink for washing clothes and other items.

As soon as Pierre finished his paperwork around 4 p.m. or 5 p.m. on June 5, 2003, the crew leader drove Pierre to the housing supplied by Seaside Farms at Land’s End.  Pierre was scheduled to begin work the next morning.  Transportation of the workers from the housing area to the packing facility and back each day was the responsibility of the crew leader as the workers did not own vehicles and it enabled the entire packing crew to arrive simultaneously to start the production line.

Pierre put his clothing in his room and decided to walk outside to look around.  Just after 6:00 p.m., Pierre was exiting the building when he fell on a wet sidewalk as he walked out the door.  Pierre noticed a woman was using the outside sink and water was flowing down the sidewalk in front of the building at the time he fell.  Pierre was taken to a hospital, where it was determined he had fractured his right ankle.

Seaside Farms thereafter terminated Pierre’s employment, and he was not immediately able to obtain other employment due to his fractured ankle. Pierre filed a claim for workers’ compensation benefits, alleging he suffered his injury in the course and scope of his employment at Seaside Farms.  Pierre asserted the accident took place in an employer-owned labor camp, the employer benefited from Pierre living at nearby housing, he was required by necessity to live there, and the accident occurred in the context of his reasonable use of the housing facility as contemplated by the employer.  Pierre sought temporary total disability compensation from June 5, 2003 to January 31, 2004; causally-related medical treatment to date; and future medical treatment, including surgery.

The hearing commissioner determined Pierre had not sustained a compensable injury because he was not injured during the course and scope of his employment.  Specifically, the hearing commissioner found Pierre “was under no requirement to live in the employer provided housing pursuant to his contract for employment” and his work did not require that he be on continuous call.  In addition, he was not engaged in any activities that were calculated to further, either directly or indirectly, the business of his employer.  Finally, the wet sidewalk where Pierre fell was not different in character or design from other sidewalks, and the risk associated with slipping on the sidewalk was not one uniquely associated with his employment; rather, it was one he would have been equally exposed to apart from his employment.

The Commission’s Appellate Panel upheld the hearing commissioner’s order and incorporated it by reference.  However, one member separately wrote to state that, although he agreed with the hearing commissioner’s refusal to adopt the “bunkhouse rule,” he disagreed with the hearing commissioner’s conclusion that Pierre’s accident did not arise out of his employment because the sidewalk in question was no different in character or design from any other sidewalk.  The member stated this was too narrow a reading of the requirement that the accident “arise out of” the claimant’s employment.

Pierre appealed to the circuit court, arguing his accident did arise out of and in the course of his employment and that Seaside Farms furnished the labor camp housing as part of his compensation.  He alleged he “was functionally required to live in the . . . labor camp housing for lack of [a] reasonable alternative, in view of the distance of the work from residential facilities and the lack of availability of accommodations elsewhere.”  Additionally, “[t]he erratic work schedule described by [the] employment contract and in respondent’s [Seaside Farm’s] deposition testimony, indicates that [he] may have been summoned from [the] labor camp housing to work in [the] tomato packinghouse facility at odd and irregular hours.”  Pierre also alleged the wet sidewalk where he fell was a peculiar hazard to which he was exposed only as a result of his employment with Seaside Farms.

The circuit court affirmed.  The court noted the parties had stipulated that Pierre was an employee under the South Carolina Workers’ Compensation Act at the time of his injury.  The court concluded Pierre’s accident did not arise out of and in the course of his employment with Seaside Farms because he was not performing any duties for his employer when the accident occurred.  The court stated Pierre’s proposed common-law theory of the “bunkhouse rule” was not applicable, in any event, as it does not apply when the employee is not required to reside in the employer-supplied housing.  Pierre appeals.

STANDARD OF REVIEW

The Administrative Procedures Act (APA) provides the standard for judicial review of decisions by the Commission.  Geathers v. 3V, Inc., 371 S.C. 570, 641 S.E.2d 29 (2007); Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  An appellate court can reverse or modify the Commission’s decision if it is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record.  Fishburne v. ATI Sys. Int’l, 384 S.C. 76, 84, 681 S.E.2d 595, 599-600 (Ct. App. 2009) (citing S.C. Code Ann. § 1-23-380).

In workers’ compensation cases, the Commission is the ultimate fact- finder.  Jordan v. Kelly Co., 381 S.C. 483, 674 S.E.2d 166 (2009).  “This Court must affirm the findings of fact made by the full commission if they are supported by substantial evidence.” Tennant v. Beaufort County Sch. Dist., 381 S.C. 617, 620, 674 S.E.2d 488, 490 (2009) (citing Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981)).  “Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.”  Id.

Under the APA, a reviewing court determines whether the circuit court properly determined if the Commission’s findings of fact are supported by substantial evidence in the record and whether the Hearing Panel’s decision is affected by an error of law.  Geathers, 371 S.C. at 576, 641 S.E.2d at 32.[1]

LAW/ANALYSIS

A claimant may recover workers’ compensation benefits if he sustains an “injury by accident arising out of and in the course of employment.”  S.C. Code Ann. § 42-1-160(A) (Supp. 2009).  “Arising out of” refers to the origin and cause of the accident; the phrase “in the course of” refers to the time, place, and circumstances under which the accident occurred.  Hall v. Desert Aire, Inc., 376 S.C. 338, 349, 656 S.E.2d 753, 758 (Ct. App. 2007).  An accident arises out of the employment when the accident happens because of the employment, as when the employment is a contributing proximate cause.  Sola v. Sunny Slope Farms, 244 S.C. 6, 135 S.E.2d 321 (1964).

“In determining if an accident arose out of and in the course of employment, each case must be decided with reference to its own attendant circumstances.”  Hall, 376 S.C. at 349, 656 S.E.2d at 759.   “The general policy in South Carolina is to construe the Workers’ Compensation Act in favor of coverage, and any reasonable doubts as to construction should be resolved in favor of the claimant.”  Id. at 350, 656 S.E.2d at 759.

“Where employer and employee are subject to the compensation act, . . . an injured employee should not be excluded from the benefits of the law upon the ground that the accident did not arise out of and in the course of his employment when there is substantial doubt (arising from the proven facts) of the propriety of such conclusion.”  Pelfrey v. Oconee County, 207 S.C. 433, 440, 36 S.E.2d 297, 300 (1945).  “These words are construed broadly and should continue to be so construed.”  Id. (citation omitted).  “Common sense indicates that a compensation law passed to increase workers’ rights (because their common law rights were too narrow) should not thereafter be narrowly construed.”  Id. (citation omitted).

In finding Pierre’s claim was not compensable, the circuit court relied in large part upon a North Carolina[2] case, Jauregui v. Carolina Vegetables, 436 S.E.2d 268 (N.C. Ct. App. 1993).  In Jauregui, the North Carolina Court of Appeals considered a claim by a migrant worker who was injured when he slipped and fell on a piece of soap as he walked down the steps outside a shower at the labor camp where he resided.  Id. at 270.  The worker testified he would not have taken the job if housing had not been provided by the employer.  Id.  The court considered the application of the “bunkhouse rule,” and cited one version of the rule from Professor Larson:

When an employee is required to live on the premises, either by his contract of employment or by the nature of his employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment.  However, if the employee has fixed hours outside of which he is not on call, compensation is awarded usually only if the course of the injury was a risk associated with the conditions under which claimant lived because of the requirement of remaining on the premises.

Id. (quoting 1A Arthur Larson, The Law of Workmen’s Compensation, § 24.00, at 5-234 (1993)).[3]

The court found that, “although the nature of his employment arguably required that he live on the premises,” Jauregui was not continuously on call and at the time of his injury was not engaged in a duty that was calculated to further, directly or indirectly, the employer’s business.  Id. at 271.  The court noted there was no precedent in that jurisdiction for it to follow the bunkhouse rule, in any event, and without it the employee could not prevail.  Id. at 271-72.

Initially, we note that, although South Carolina courts frequently look to North Carolina’s rulings since our workers’ compensation code is very similar, there is no requirement that we abide by North Carolina’s determination for our own law, particularly since it was decided by an intermediate appellate court.  See Parrott v. Barfield Used Parts, 206 S.C. 381, 34 S.E.2d 802 (1945) (stating North Carolina workers’ compensation decisions, while generally persuasive, are not binding on this Court).

Further, we do not find Jauregui persuasive.  The decision does not comport with emerging developments in workers’ compensation law, as courts have become more cognizant of the realities of the particularized conditions under which migrant workers are employed.  For example, although the North Carolina court ostensibly determined that Jauregui was not “required” to live at the labor camp, presumably because he was not contractually required to do so, this ignores the reality that virtually all of the migrant workers lived on the employer’s premises as there was no real housing alternative, and their presence on the employer’s premises benefited not only the workers, but also the employer, since the workers could be transported each day to begin work without delay.  The employer could not have found workers if it had not provided housing since the wages earned by the workers did not enable them to afford housing in the area.  Thus, the first premise in its analysis, i.e., that Jauregui was not required to live at the labor camp, is inaccurate.

The North Carolina court, despite its holding, acknowledged this fact when it observed that “the nature of his [Jauregui’s] employment arguably required that he live on the premises.”  Id. at 271 (emphasis added).  Therefore, in rejecting the bunkhouse rule, the North Carolina court failed to consider the full import of the definition that it quoted from Professor Larson, i.e., that the rule applies when the employee is required to live on the employer’s premises either by the employment contract or by the nature of the work involved.

In addition, North Carolina lacks a consistent rule in resident-employee cases, which is illustrated by the fact that compensation was awarded in another North Carolina decision, in which the employee was required by the nature of his work to live at the employer’s remote work site in a foreign country.  See Chandler v. Nello L. Teer Co., 281 S.E.2d 718 (N.C. Ct. App. 1981) (allowing benefits where the employee was stationed at a remote work camp for a road building project in Africa and the accident occurred as he was traveling back to his employer’s camp after an off-duty excursion with friends; the court found the employee was killed in an automobile accident arising out of and in the course of his employment, even though he was returning after a personal frolic, because he was still within the confines of the employer’s road project and was returning to his employer-provided sleeping quarters at the time of the accident).

In Chandler the court stated that “[i]t is clear that if [the employee] had been injured while sleeping in the camp, walking to the dining hall, inspecting one of Teer’s completed roads, or participating in a Teer-organized softball game, his injuries would be compensable.”  Id. at 720.  The court held that in such situations where the employer provided its employees with sleeping, eating, and recreational facilities within the project area, employees are “continuously in an employment situation” and are “protected by the provisions of the Workers’ Compensation Act” while they are within the confines of the employer’s premises.  Id. at 721.

The Chandler decision was affirmed by the North Carolina Supreme Court, which stated it had “carefully examined the Court of Appeals’ opinion” and found “that the result reached by the Court of Appeals, its reasoning, and the legal principles enunciated by it to be altogether correct” and that it would “adopt that opinion as [its] own.”  Chandler v. Nello L. Teer Co., 287 S.E.2d 890, 891 (N.C. 1982).  Based on this fact and the reasonableness of the result, we find Chandler to be more persuasive here.[4]

Other jurisdictions have applied the bunkhouse rule under similar circumstances and found the injuries arose out of and in the course of employment where the employee was required, either by contract or by the nature of the work, to reside on the employer’s premises, such as migrant workers, logging employees, and others who live at remote work sites.  In such cases, the premises are considered an extension of the employer’s primary work site.  For the rule to apply, the injuries must have occurred during the employee’s reasonable use of the premises and does include activities for personal comfort.

The Court of Appeals of Oregon analyzed the bunkhouse rule as a matter of first impression in the case of Hernandez v. Leo Polehn Orchards, 857 P.2d 213 (Or. Ct. App. 1993).  In Hernandez, the claimant, a migrant worker at a cherry orchard, sustained injuries at the employer’s labor camp where she resided when she slipped and fell in a mud puddle as she walked from the housing area to an outdoor bathroom facility to empty her spouse’s bedpan.  Id. at 214.

The court remarked that there are a variety of specialized situations where the activities of the employee have been categorized to determine if there is a sufficient work connection to make them compensable.  Id. at 215.  One example is the personal comfort line of cases, which provide that such activities are compensable if they are either undertaken at work or, if the employee was not at work, if the employee was required to reside on the premises and was continuously on-call.  Id.  “The basic underpinning of those cases is that it is the obligation of employment to be on the premises that creates the risk of injury to the employee; when the employee is free to leave when he or she pleases, that employment connection does not exist.”  Id.  “The bunkhouse rule represents an incremental extension of that line of cases.”  Id.  “It is the obligation of employment to reside on the premises that subjects the employee to the risk that resulted in injury.”  Id. at 216.

The court observed that although Hernandez was not contractually required to live on the premises, there was no other practical alternative, as even the employer had acknowledged that housing was supplied only because there was no other place for the workers to stay.  Id. at 216-17.  The court noted:  “Larson observes that . . . the ‘better view’ upholds compensability when living on the premises is practically required.”  Id. at 217 (citing 1A Larson, Workmen’s Compensation Law 5-271, § 24.40 (1993)).  The court next found that the injury resulted from the condition of the premises where she lived.  In this case, Hernandez slipped in a mud puddle that was created by the employer’s act of hosing down the outhouse areas as part of its routine maintenance at the camp. Id.

In another case involving migrant workers, the Supreme Court of Florida held an accident by an employee recruited from Jamaica to work for a sugar company in Florida was covered under workers’ compensation law, applying the bunkhouse rule.  Carr v. United States Sugar Corp., 136 So. 2d 638 (Fla. 1962).  The worker was injured when he slipped and fell on the stairs to his barracks as he was leaving to visit a worker in another barracks.  Id. at 639.  The court stated an injury may be compensable when either the contract or the nature of the work requires the worker’s presence and the worker is making reasonable use of the employer’s premises.  Id. at 641.

The court noted that “the employer maintained the barracks for the obvious purpose of furthering the business of producing sugar so that the employees would be readily available to report for work in the fields at 7 A.M.”  Id.  The court further noted that the employee was making reasonable use of the premises, as it must have been contemplated that the employees would be free to visit each other “rather than be confined when off duty exclusively to the particular barracks where the employee was required to live.”  Id.

The court observed that migrant farm workers, by the nature of their jobs, must travel to follow the harvesting of produce and thus they do not establish residences, so often their housing is supplied as part of their employment;[5] additionally, their proximity to the farms benefits their employers since the products they are dealing with are perishable and providing housing “is an assurance that the workers are readily available at any time within a short distance from the work area.”  Id. (quoting Dupree v. Barney, 163 A.2d 901, 906-07 (Penn. 1960)).

In a case involving a logging employee, the New Mexico Court of Appeals also recognized the unique employment circumstances of workers who must live at remote work sites.  Lujan v. Payroll Express, Inc., 837 P.2d 451 (N.M. Ct. App. 1992), cert. denied (N.M. 1992).  In Lujan, the employee died of carbon monoxide poisoning while residing in a van at a logging site that was accessible only by rough roads.  Id. at 452.

The court, applying the bunkhouse rule and citing the preferred view, i.e., that “even in the absence of a requirement in the employment contract, residence should be deemed ‘required’ whenever there is no reasonable alternative, in view of the distance of the work from residential facilities or the lack of availability of accommodations elsewhere,” found Lujan’s death was the result of a compensable accident arising out of and in the course of his employment.  Id. at 454 (quoting 1A Arthur Larson, Workmen’s Compensation Law § 24.40 at 5-270 (1990)).  The court stated “Lujan’s presence at the job site was necessary because no other accommodations were available within a reasonable distance . . . .”  Id. at 454.  The court remarked, “It seems particularly unreasonable to suggest that the worker in this case had viable alternative sleeping arrangements” where the nearest motels were thirty miles away and would have cost Lujan almost half of his daily wages to obtain.  Id.

We find the reasoning in these cases persuasive and that they represent the modern view in employee-residence jurisprudence.  Applying this reasoning, we conclude in the current appeal that the Commission’s findings that Pierre was not required to live on his employer’s premises and that his presence did not further, either directly or indirectly, the interest of his employer are not supported by substantial evidence.  The president and part-owner of Seaside Farms stated that up to 96 people are allowed to reside in the Land’s End camp, where most of the packers stayed.  At peak operation, over 100 people were employed, and approximately 10 people (mostly locals who had their own housing) were retained year-round.  Essentially, the crew leader would bring enough people to fill the housing.  The company president testified that he provided housing to the workers as a cost of doing business because the workers had no other place to stay and his business could not operate if he did not provide the housing.  The migrant workers did not earn enough to obtain housing, and short-term rentals that coincided with the time they would be in the area did not exist.

It is clear from the record that Pierre was required, not by contract, but by the nature of his employment, to live on-site near the packing facility as there was no reasonable alternative and virtually all of the workers at Seaside Farms lived in the housing provided by their employer.  The employer absorbed the expense of housing the workers as the cost of doing business and to further its business, as it was convenient to have all of the workers ready to begin work at the same time, particularly those such as Pierre who were working in the packing house, which operates on an assembly-line basis.

In addition, we conclude the Commission’s finding that the risk was not associated with Pierre’s employment because the sidewalk was no different in character from other sidewalks is not supported by substantial evidence in the record.  Pierre’s accident occurred as a result of a hazard that existed on the employer’s premises, i.e., Pierre slipped and fell on a wet sidewalk just outside the employees’ housing facility.  The sidewalk was wet because another person was using the outside sink and the water ran down the sidewalk.  The employer’s placement of the sink and the apparent lack of drainage created the wet conditions that caused Pierre to fall.  Thus, the source of the injury was a risk associated with the conditions under which the employees were required to live.  But for the fact that Pierre’s work essentially required him to live on his employer’s premises near the farm, he would not have been exposed to the risk that caused his injury.  Further, it is undisputed that Pierre was making a reasonable use of the premises at the time of his injury.  Cf. Hernandez, 857 P.2d at 214 (stating the basic underpinning of cases finding compensability is that it is the obligation to reside on the employer’s premises that subjects the employee to the risk that resulted in injury and creates the employment connection that does not exist when the employee is free to leave).

Although merely being on an employer’s premises, without more, does not automatically confer compensability for an injury, we believe the circumstances of Pierre’s accident—including the facts that he was required by the nature of his work to live on the employer’s premises and such residence furthered the interests of the employer, the injury arose from a hazard existing on the employer’s premises, and he was making reasonable use of the premises—establish the requisite work connection and compel a finding that Pierre’s injury arose out of and in the course of his employment at Seaside Farms.

CONCLUSION

Based on the foregoing, we hold Pierre’s accidental injury arose out of and in the course of his employment and is compensable under our workers’ compensation law.  Pierre was essentially required to live on the employer’s premises by the nature of his employment, and he was making a reasonable use of the employer-provided premises at the time of his accident.  Moreover, his injury is causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building.  Consequently, the decision of the circuit court is reversed and the matter is remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

TOAL, C.J., WALLER and KITTREDGE, JJ., concur. PLEICONES, J., concurring in result only.

[1]  The South Carolina Legislature has since changed the review procedure for workers’ compensation matters to eliminate review by the circuit court, but the change does not affect the procedure applicable to this case.  See generally S.C. Code Ann. § 1-23-380 (Supp. 2009) (regarding judicial review of administrative decisions); id. § 42-17-60 (concerning appeals of Commission awards).

[2]  Both Pierre and Seaside Farms acknowledge that South Carolina has not had occasion to consider the application of the “bunkhouse rule” per se, although we have had cases where an employee has been injured while residing on the employer’s premises or going to the employer’s work camp.  See, e.g., Sola v. Sunny Slope Farms, 244 S.C. 6, 135 S.E.2d 321 (1964) (holding an employee’s death while traveling from a packing shed to a labor camp where he resided and performed additional duties arose out of and in the course of his employment); Jolly v. S.C. Indus. Sch. for Boys, 219 S.C. 155, 64 S.E. 252 (1951) (holding an employee’s injury that occurred while he was off-duty and painting the hallway in the apartment supplied by his employer rent-free arose out of and in the course of his employment as a hog foreman and general utility worker at an industrial school).

[3]  Identical language on this general rule applied to resident employees now appears in 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, Scope & § 24.01 (2009).

[4]  Cf. Ramsey v. S. Indus. Constructors, Inc., 630 S.E.2d 681, 685-86 (N.C. Ct. App. 2006) (holding North Carolina has recognized that employees whose work requires travel away from their employers’ premises are continuously within the course of their employment during such travel except when there is a distinct departure for a personal errand; the rationale for this rule is that while on a business trip, the employee must eat and sleep in various places in order to further the business of his employer).

[5]  See George L. Blum, Annotation, Injury to Employee as Arising Out Of or In the Course of Employment for Purposes of State Workers’ Compensation Statute—Effect of Employer-Provided Living Quarters, Room and Board, or the Like,  42 A.L.R.6th 61, 93 (2009) (“The bunkhouse rule is considered to be an extension of the general rule that, where an employee is injured while on the employer’s premises as contemplated by the employment contract or the necessity of work, the employee will be compensated. One rationale behind the bunkhouse rule is that an employee’s reasonable use of the employer’s premises constitutes a portion of the employee’s compensation.”).

SC Workers’ Compensation – Statutory Employer Liability

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

In this recent SC Court of Appeals case, the Court provides an extensive discussion of statutory employer liability. In these difficult economic times, alot of businesses are having to make adjustments in their budgets just to survive. Unfortunately, despite the law, insurance costs are often the first to be cut. In reviewing new workers’ compensation cases, one of the first issues is does an employer have coverage. If not, your attorney will need to investigate and determine whether other businesses may be liable for your injuries as a “statutory employer.” Without insurance coverage, you would be left to try and collect a worthless judgment against an individual or “business.” If you are injured while working for an illegally uninsured employer, it is critical that your attorney quickly determine “statutory employer” liability or even a claim against the SC Uninsured Employer Fund. Better make sure your lawyer knows what to do if there is no immediate insurance coverage. There is simply too much at stake to risk an inexperienced attorney.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Danny R. Pilgrim, Respondent,

v.

Billy Eaton and Rufus Revis,  and S.C. Workers Compensation Uninsured Employers’ Fund, Defendants,

Of Whom  Billy Eaton and Rufus Revis are Appellants,

And S.C. Workers Compensation Uninsured Employers’ Fund is also Respondent.

Appeal From Anderson County
J. C. Buddy Nicholson, Jr., Circuit Court Judge

Opinion No. 4767
Heard May 19, 2010 – Filed December 15, 2010

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Thomas Bailey Smith, of Mt. Pleasant, for Appellants.

Amy V. Cofield, of Lexington; Ernest Caskey Trammell, of Anderson, for Respondents.

FEW, C.J.:  This appeal presents two questions related to workers’ compensation.  The first is the factual question of whether Rufus Revis is the statutory employer of the claimant, Danny Pilgrim. The answer to this question determines the jurisdiction of the workers’ compensation commission.  The second is whether the commission committed an error of law in its method of calculating Pilgrim’s average weekly wage.  We affirm the commission on the first question, but reverse and remand on the second.

I.  Facts and Procedural History

Danny Pilgrim worked for years as a maintenance worker at an apartment complex but lost that job in January, 2005.  On January 25, 2005, Pilgrim began working for Sean Kern. Kern had contracted with Billy Eaton to provide carpenters for Eaton’s unincorporated business Just Garages Plus.  Pilgrim’s first job assignment for Kern was to work on the roof of a garage Eaton was building for a customer.[1]  On January 28, Pilgrim fell from the roof and seriously injured his back.  The commission determined that Pilgrim sustained a work-related injury and awarded him temporary total disability benefits.

The commission found that both Eaton and Rufus Revis were Pilgrim’s statutory employers.  Revis had been the sole owner and operator of the garage business until selling an interest in it to Eaton in 2002.  Revis contends that he sold the entire business to Eaton, and therefore he is insulated from workers’ compensation liability.  The commission found that Eaton and Revis continued to operate the business together as a “joint effort,” and that both are liable to Pilgrim as his statutory employers.  Revis appeals this finding.  As to the second question, both Eaton and Revis argue the commission erred in its calculation of Pilgrim’s average weekly wage.  The circuit court affirmed the commission on both issues.  We affirm the finding that Revis was Pilgrim’s statutory employer.  We reverse the determination of average weekly wage, and remand to the commission.  On remand, the commission shall calculate Pilgrim’s average weekly wage in compliance with section 42-1-40 of the South Carolina Code (Supp. 2009), and set the compensation rate for his benefits accordingly.

II.  Statutory Employer Determination

The question of whether Revis is Pilgrim’s statutory employer is considered “jurisdictional” because its answer determines the jurisdiction of the commission under the Workers’ Compensation Act.  See Glass v. Dow Chem. Co., 325 S.C. 198, 201-02, 482 S.E.2d 49, 51 (1997).  The commission’s finding that Revis is a statutory employer means that Pilgrim’s claim against him is subject to the exclusivity provision of the Act.  See Glass, 325 S.C. at 201, 482 S.E.2d at 50, n.1.[2]  As to these jurisdictional facts, an appellate court must make its own findings according to the preponderance of the evidence after a thorough review of the entire record.  Glass, 325 S.C. at 202, 482 S.E.2d at 51.

The parties do not dispute that Just Garages Plus qualifies as Pilgrim’s statutory employer under section 42-1-410 of the South Carolina Code (1985).  Eaton concedes that he is an owner[3] and operator of the business, and is thus liable for benefits as determined by the commission.  We agree with the commission that Revis is also liable to Pilgrim.  We find that Revis remained an owner and operator of Just Garages Plus at least until the time of Pilgrim’s injury, and is therefore jointly liable with Eaton to Pilgrim as his statutory employer.

Revis was the sole owner and operator of Just Garages until 2002 when he sold an interest in the business to Eaton, and the name was changed to Just Garages Plus.  Because Revis was a licensed contractor, and Eaton was not licensed, Revis was required to stay involved in the business.  South Carolina law requires that contracting work, such as the work performed by Just Garages Plus, be performed only by licensed contractors.  S.C. Code Ann. § 40-11-30 (2001).  A person who is not a licensed contractor may not even obtain a building permit for such work.  See S.C. Code Ann. § 40-11-370(A)- (B) (2001 & Supp. 2009).  It would have been unlawful for any person other than Revis to do the work of Just Garages Plus.  S.C. Code Ann. § 40-11-370(B) (Supp. 2009) (“It is unlawful to engage in construction under a name other than the exact name which appears on the license issued pursuant to this chapter.”).  Therefore, in order for the business to function after Eaton became involved, Revis had to continue to act as the general contractor.

Moreover, Revis’s financial interest in the sale to Eaton was the monthly installment payments he received from Eaton.  Eaton was unable to make those payments without income from jobs for which Revis acted as the contractor and obtained the required permits.  Thus, both Revis and Eaton depended on Revis’s integral participation in the work of Just Garages Plus. Further, at least as late as April 2, 2003, Revis admitted he still operated the business. On that date, he signed an agreement with the commission under the name “Rufus Revis d/b/a Just Garages, Respondent.”  The agreement states “from June 22, 2002 . . . , the Respondent was operating and continues to operate . . . .” Finally, when Revis eventually quit obtaining building permits for Just Garages Plus, Eaton stopped building garages.

Eaton, doing business as Just Garages Plus, contracted to build a garage in January, 2005.  The building permit required for the job bears the name “Rufus Revis” as “Contractor.”  While there is some uncertainty about whether Revis actually obtained this particular permit, we find that he did.[4] Revis was therefore the general contractor for the job.  S.C. Code Ann. §§ 40-11-30, 40-11-20(8)-(9) (2001).  On January 28, 2005, Pilgrim fell from the roof of the garage and was injured.  As the general contractor and the only person allowed under the law to “engage in construction” on that job, Revis was doing business as Just Garages Plus.  We affirm the commission’s decision that Revis was Pilgrim’s statutory employer.

Our holding in this case has no impact on the liability of a seller of a business for workers’ compensation benefits owed to employees of the business injured after the sale.  On these unique facts, we hold that Revis did not sell the business.  Rather, he remained one of its owners and operators.  Just like Eaton, Revis was acting in his individual capacity, doing business as Just Garages Plus.

III.  Average Weekly Wage Calculation

In making its award of temporary total disability benefits to Pilgrim, the commission set a compensation rate based on its calculation that Pilgrim’s average weekly wage was $720.  Eaton and Pilgrim appeal this calculation. As to this calculation, an appellate court may not reverse the commission’s decision unless substantial rights of the appellant have been prejudiced because the decision is affected by an error of law, or because the factual findings are clearly erroneous in view of the reliable, probative, and substantial evidence.  S.C. Code Ann. § 1-23-380(5) (Supp. 2009).  See Forrest v. A.S. Price Mech., 373 S.C. 303, 306, 644 S.E.2d 784, 785-86 (Ct. App. 2007).

When Pilgrim was injured on January 28, 2005, he had worked only 29.5 hours for Kern, all on the job for Eaton and Revis.  He was paid for this time at the rate of $18 an hour.  Other than this, neither party presented any direct evidence for the commission to use in calculating average weekly wage.  The commission calculated Pilgrim’s average weekly wage by multiplying $18 by a forty-hour week.  We believe the commission’s calculation of average weekly wage amounts to an error of law and resulted in an average weekly wage that is clearly erroneous.  Because we find these errors have prejudiced substantial rights of the appellant, we reverse.

The Workers’ Compensation Act defines average weekly wages precisely: “‘Average weekly wages’ means the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury . . . .”  S.C. Code Ann. § 42-1-40 (Supp. 2009).  The section sets forth four alternative methods for the commission to use to calculate the average wage.  Forrest, 373 S.C. at 308, 644 S.E.2d at 786.  The primary method of calculation requires that “‘[a]verage weekly wage’ must be calculated by taking the total wages paid for the last four quarters . . . divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.”  S.C. Code Ann. § 42-1-40.  The commission must use this method unless “the employment, prior to the injury, extended over a period of less than fifty-two weeks,” or unless “for exceptional reasons” it would be unfair to do so.  Id.[5]

In this case, the record shows that Pilgrim had been working at the job for Kern for less than one week.  Therefore, it was not permissible for the commission to use the primary method of calculating Pilgrim’s average weekly wage.  Under this circumstance, the commission is required to consider which of the alternative methods for calculating average weekly wage it will use.  Each alternative is preceded by a description of the conditions under which the commission may use the alternative.  Id.  Before the commission may use any one of these alternatives, the commission must find, or the record must clearly show, that the necessary conditions exist.

The commission failed to comply with section 42-1-40 in two important respects.  First, it failed to make any factual findings showing which of the alternatives in the section was appropriate to use for calculating Pilgrim’s average weekly wage.  Second, it used a method of calculation which is not permitted under any scenario.[6]  The commission found:

At the time of the accident, Claimant was earning $18 an hour.  . . .  The amount yields an average weekly wage of $720.00 per week and a compensation rate of $480.24.  Although he worked for only a short period of time, several days, it is reasonable to conclude that is the amount he would be earning were it not for the accident.

To illustrate that this calculation is an error of law, we consider each of the alternatives available under the section in light of the facts of this case.  The first alternative to the primary method is to be used “[w]hen the employment . . . extended over a period of less than fifty-two weeks . . . .”  Id.  In such a situation, the commission must use “the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages . . . .”  Id.  Section 42-1-40 states that “the method . . . shall be followed, as long as results fair and just to both parties will be obtained.”  Id.  The section also contains a requirement that this particular method be “practicable.”  Id.[7]

Therefore, in order for the commission to use the first alternative to the primary method, two predicate conditions must exist.  First, it must be “practicable” to use the first alternative method.  Second, the calculation must yield a result which is “fair and just to both parties.”  Ordinarily, the commission should make factual findings of these two predicate conditions.  In some situations, however, it may be clear from the record that both of the two predicate conditions exist.  In this case, neither of them exists.

The “practicable” requirement is not met simply because 29.5 hours of wage data cannot yield a reasonably accurate calculation of an average that is designed to be based on a year of data.  The “fair and just” requirement is not met for the same reason, and because Pilgrim’s own testimony establishes that the commission’s calculation is clearly erroneous.  On cross-examination, Pilgrim testified that he earned $29 in 2005.  Assuming the $29 was earned in a week separate from the week of his injury, in which he earned $531, his average weekly wage for January 2005 would have been $280.[8]  Neither side offered any other direct evidence of previous or subsequent earnings.  The circumstantial evidence that was offered would have reduced the calculation of Pilgrim’s average weekly wage even lower.  When asked how much he earned in 2004 and in 2003, Pilgrim responded “I don’t know.”  He also testified that since at least 1997 he filed no income tax returns and he paid no social security taxes.

Because the primary and first alternative methods of calculating average weekly wage were not available to the commission, it should have considered using the second alternative method.[9]  This second alternative requires the commission to consider “the average weekly amount which . . . was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.”  Id.  Because neither of the parties mentioned the possibility of presenting such evidence, and the commission did not inquire of its availability, we cannot determine whether this would have been the appropriate way to calculate the average weekly wage.

The final alternative for calculating average weekly wage is to be employed when “exceptional reasons” exist that make it “unfair, either to the employer or the employee,” to use the alternatives set forth above.  Id.  In that event, section 42-1-40 provides that “such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”  Id.  This alternative may be used by the commission when it makes factual findings that explain the “exceptional reasons” it finds the other methods are “unfair.”  Id.  See Forrest, 373 S.C. at 308-11, 644 S.E.2d at 786-88 (affirming the commission’s use of the “exceptional reasons” alternative based on specific findings which “justified deviation from the usual statutory method of . . .  computation”).  In this case, the commission did not make any findings to justify using the “exceptional reasons” alternative.

Appellants contend that this appeal should be resolved based on the burden of proof.  Appellants argue that Pilgrim has the burden to prove average weekly wage, and thus compensation rate.  They argue the lack of sufficient evidence of wages should penalize Pilgrim.  We believe, however, that the question of which side bears the burden of proof as to this specific issue is not properly before us.  First, neither party raised the burden of proof to the commission; and the commission did not rule on it.  Second, we need not reach the question of the burden of proof because our ruling already requires the commission to recalculate the average on remand.  Third, it is not clear that there is a burden of proof on the issue of average weekly wage.  We address the existence of a burden of proof on the question of average weekly wage.  However, we do not answer the question.

Our courts have frequently stated that the burden of proof is on the claimant to prove facts which will bring the injury under the coverage of the Workers’ Compensation Act.  See, e.g., Clade v. Champion Labs., 330 S.C. 8, 11, 496 S.E.2d 856, 857 (1998);Bartley v. Allendale County Sch. Dist., 381 S.C. 262, 272, 672 S.E.2d 809, 814 (Ct. App. 2009).  These cases generally place the burden on a claimant to prove the injury is compensable.  For example, in Clade, the supreme court placed the burden of proof on the claimant to prove her injury arose out of the scope and course of her employment.  330 S.C. at 11, 496 S.E.2d at 857.  Similarly, our courts have held that the burden of proving causation is on the claimant.  See Shealy v. Algernon Blair, Inc., 250 S.C. 106, 113, 156 S.E.2d 646, 649 (1967) (“The burden of proving causation rested upon claimant.”).[10]  However, the Act does not place the burden of proof on the claimant as to all issues.  For example, S.C. Code Ann. § 42-9-60 (Supp. 2009) specifically places the burden on the employer when asserting the defenses of intoxication or willful injury.  On jurisdictional questions, our courts have stated the burden is on the claimant, and have made statements indicating the burden of proof as to jurisdictional facts may not be on the claimant.[11]  Compare Marlow v. E.L. Jones & Son, Inc., 248 S.C. 568, 570, 151 S.E.2d 747, 748 (1966) (“[T]he burden of proving the relationship of employer and employee is upon the claimants.”); with Chavis v. Watkins, 256 S.C. 30, 34, 180 S.E.2d 648, 650 (1971) (“The burden rested upon the [employer] to show that a change in the identity of his employer was made known to [the employee].”)[12] and Shuler v. Tri-County Elec. Co-op., Inc., 385 S.C. 470, 473, 684 S.E.2d 765, 767 (2009) (“It is South Carolina’s policy to resolve jurisdictional doubts in favor of inclusion rather than exclusion.”); Hill v. Eagle Motor Lines, 373 S.C. 422, 429, 645 S.E.2d 424, 427 (2007) (“In determining jurisdictional questions, doubts of jurisdiction will be resolved in favor of inclusion of employees within workers’ compensation coverage rather than exclusion.”).  Therefore, the burden of proof may vary depending on the issue before the commission.

On the question of a burden of proof for the amount of compensation due for a compensable injury, the Workers’ Compensation Act is silent, and our courts have hardly spoken.  In one case, however, this court cited the regulations of the commission and stated “the claimant has the burden of proving wages earned from jobs other than the one where the accident occurred.”  Steele v. Self Serve, Inc., 335 S.C. 323, 327, 516 S.E.2d 674, 676 (Ct. App. 1999).  The reasoning of Steele, if applicable here, would actually place the burden of proving the average weekly wage from a single employer on the employer, not the claimant.  Steele cited former regulation 67-1603(B),[13] which required a claimant to file a completed Form 20 for “each additional job” other than the one for whom the claimant was working at the moment of injury.  335 S.C. at 327, 516 S.E.2d at 676.  From the requirement of filing a completed Form 20, this court imposed the burden of proof on the claimant as to that issue.  Id.  As to a single employer, however, the same regulation places the requirement of filing a Form 20 on the employer:  “The employer’s representative shall calculate the claimant’s compensation rate by completing a Form 20, Statement of Earnings of Injured Employee.”  S.C. Code Ann. Regs. § 67-1603 A (Supp. 2009).  The regulation goes on to require that “[w]age information shall be provided by the employer.”  Id. § 67-1603 B.  The regulation also addresses what the commission may do if the employer fails to file a proper Form 20.  “Failure to file and/or serve the Form 20 as set forth above may result in . . .  the commissioner . . . determining the average weekly wage and compensation rate from information in the Commission’s file and statements or evidence presented at the hearing . . . .”  Id. § 67-1603 G.[14]  Thus, applying the reasoning of Steele, the burden of proof as to the average weekly wage would be on the employer.

The overriding goal of the Workers’ Compensation Act “is to compensate workers for reductions in their earning power caused by work-related injuries . . . .”  Stephenson v. Rice Servs., Inc., 323 S.C. 113, 116, 473 S.E.2d 699, 700 (1996).  This statement fromStephenson was made in the context of explaining the “economic,” or “earning impairment theory” of workers’ compensation law in South Carolina.  323 S.C. at 116, 473 S.E.2d  at 701.  The starting point for determining compensation under this earning impairment theory is the commission’s calculation of the average weekly wage under section 42-1-40.  The specific goal of section 42-1-40 is for the commission to calculate an average weekly wage that is fair to both the worker and the employer.  Applying an older version of the section, our supreme court stated “[t]he objective of wage calculation is to arrive at a fair approximation of the claimant’s probable future earning capacity.”  Bennett v. Gary Smith Builders, 271 S.C. 94, 98, 245 S.E.2d 129, 131 (1978).  CitingBennett, this court has stated that section 42-1-40 “provides an elasticity or flexibility with a view toward always achieving the ultimate objective of reflecting fairly a claimant’s probable future earning loss.”  Sellers v. Pinedale Residential Ctr., 350 S.C. 183, 191, 564 S.E.2d 694, 698 (Ct. App. 2002). With these general objectives in mind, however, we note the Workers’ Compensation Act sets forth a framework of statutory requirements which must be specifically followed.  We hold the commission’s failure to correctly apply section 42-1-40 was an error of law that prejudiced substantial rights of Appellants.  We reverse the calculation of average weekly wage and remand to the commission.

On remand, the commission must determine whether to allow the parties to present additional evidence, or to make the calculation based on the evidence already in the record.  The commission must then comply with section 42-1-40 of the South Carolina Code.  The commission must first determine which method to use in calculating Pilgrim’s average weekly wage, and make factual findings on the existence of the conditions that warrant the use of the method chosen.  The commission must then apply the method to the wage data before it.  If the commission makes its decision on remand pursuant to regulation 67-1603, it must make that clear in its written decision.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

THOMAS and PIEPER, JJ., concur.

[1] Kern is not a party to this claim.  The commission found he was not subject to liability under the Workers’ Compensation Act.

[2] The exclusivity provision of the Act is found in section 42-1-540 of the South Carolina Code (1985).  The statutory employer liability of “contractors” such as Eaton and Revis is governed by section 42-1-410 (1985).  When the commission determines that a “contractor” qualifies as a statutory employer pursuant to section 42-1-410, the exclusivity provision of section 42-1-540 applies to claims made against that contractor.

[3] The use of the term “owner” here refers only to Eaton’s status as owner of Just Garages Plus, and not to his status as a statutory employer.  Eaton is a statutory employer as a “contractor” under section 42-1-410. The statute relating to the statutory employer status of an “owner” is section 42-1-400 of the South Carolina Code (1985), and is not at issue in this appeal.

[4] Eaton testified that Revis was the only person to obtain permits for Just Garages Plus at the time of Pilgrim’s injury.  Revis was equivocal on the subject. We find his testimony is evasive and not credible.  At one point Revis testified he did not obtain the permit. He later testified he did not know whether he did and that he would “have to go back . . . to the courthouse and find that out.”  He admitted the permit “shows [his] name printed by someone.”

[5] The “exceptional reasons” alternative, which is discussed below, is based on the following paragraph from section 42-1-40:

When for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.

[6] It is conceivable that the method used by the commission could have been employed under the “exceptional reasons” alternative, but only if the commission made the requisite factual findings.

[7] This requirement is found in the provision that the third alternative method of calculation may not be used unless the first or second methods are “impracticable.”  Id.

[8] Making the calculation using only two work weeks results in the highest possible average.  Total January earnings of $560 divided by two weeks yields an average of $280 per week.  We use this calculation merely to illustrate the commission’s error, not to suggest the outcome of the calculation the commission must make on remand.

[9] Section 42-1-40 provides this method is to be used “[w]here, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impracticable to compute the average weekly wages as defined in this section . . . .”  Id.

[10] But see Tiller v. Nat’l. Health Care Ctr. of Sumter, 334 S.C. 333, 513 S.E.2d 843 (1999) (arguably calls the burden of proof on causation into question).

[11] We need not decide this question either, as our factual findings on the jurisdictional facts in this case would be the same regardless of who bears the burden.

[12] The Chavis court specifically stated the issue was jurisdictional.  256 S.C. at 32, 180 S.E.2d at 649.

[13] S.C. Code Ann. Regs. § 67-1603(B) (1990).  The regulation was amended in 1997, and a modified version of the same requirement now is found at S.C. Code Ann. Regs. § 67-1603 H (Supp. 2009).

[14] The commission might have applied this regulation in making its decision as to Pilgrim’s average weekly wage.  However, the commission’s written decision says nothing about doing so, or even about the regulation.  The Record on Appeal does not contain a Form 20, and there no indication as to whether a Form 20 was filed by the employer.  Neither party addressed a Form 20 or this regulation in their briefs.

SC Workers’ Compensation – Impairment Ratings – Which Body Part Affected

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case demonstrates the importance of which body part is affected in terms of seeking maximum compensation for an injured worker. Here, there was the distinction between the shoulder and upper extremity (arm). In other cases, the exact body part can make a huge difference in the ultimate award. For example, an injury to the wrist can arguably affect the hand (185 weeks) or the upper extremity (220 weeks). Better make sure your attorney  knows how to best argue which body part(s) are now limited in order to secure the best award possible.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Debra M. Therrell, Appellant,

v.

Jerry’s Inc. d/b/a Jerry’s Travel Center, Employer, and American Alternative Insurance Company, Carrier, Respondents.

Appeal From Clarendon County
 Thomas W. Cooper, Jr., Circuit Court Judge

Opinion No. 3843
Heard June 9, 2004 – Filed July 12, 2004

AFFIRMED

Robert David McKissick, and William P. Hatfield, both of Florence, for Appellant. 

Paul Linwood Hendrix, of Spartanburg, for Respondents.

STILWELL, J.:  In this workers’ compensation case, Debra M. Therrell appeals the circuit court’s order affirming the full commission’s determination that the injuries to her right upper extremity are compensable as an injury to her arm rather than to her shoulder.  We affirm. 

While employed as a waitress at Jerry’s Travel Stop in Clarendon County, Therrell slipped and fell, injuring her right arm and shoulder. 

At the hearing before the single commissioner, Therrell described the condition of her right arm and shoulder following the accident.  She testified she had difficulty performing everyday tasks such as washing clothes, operating a vacuum cleaner, or getting dressed.  She was unable to lift things above her shoulder level, requiring her to rely upon her co-workers to assist her in doing the heavier parts of her job.  Therrell described experiencing “burning,” “grinding,” and “popping” sensations in her right shoulder that were aggravated by repetitive activities.  She also testified she has reduced strength in her right hand.  Even though she was right-hand dominant prior to the accident, she testified her injury required her to rely primarily on her left hand and arm for tasks associated with her job. 

The single commissioner concluded Therrell’s injury to her right upper extremity resulted in permanent partial disability of twenty percent pursuant to S.C. Code Ann. § 42-9-30 (Supp. 2003), the section prescribing compensation for specific, scheduled body parts.  Therrell appealed the award to the full commission, arguing inter alia the commissioner erred in concluding the injury was to her arm rather than her shoulder.  The full commission affirmed the award of the single commissioner, adopting her findings of fact, but increasing Therrell’s permanent disability rating from twenty percent to thirty percent.  The circuit court affirmed the full commission’s findings. 

Our review of a decision of the workers’ compensation commission is governed by the Administrative Procedures Act.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 133, 276 S.E.2d 304, 305 (1981).  Although this court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact, we may reverse where the decision is affected by an error of law.  S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003).

The question before us is whether the commission properly classified Therrell’s injury compensable as a scheduled body member pursuant to South Carolina Code section 42-9-30 (Supp. 2003).[1] The answer is in the affirmative. 

Section 42-9-30 sets forth a schedule prescribing the amount of compensation to be awarded for loss of various, specifically enumerated body parts and organs.  Compensation for injuries to body parts not covered by the statute has been prescribed by the workers’compensation commission under Regulation 67-1101.  For all other unscheduled injuries, section 42-9-30(20) provides:  “For the total or partial loss of, or loss of use of, a member, organ or part of the body not covered herein and not covered under §§ 42-9-10 or 42-9-20, sixty-six and two thirds of the average weekly wages not to exceed five hundred weeks.” 

In this case, the single commissioner awarded compensation to Therrell under section 42-9-30(13), which provides: “For the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks.”  Therrell claims this was error.  She asserts the injury was to her shoulder, not to her arm.  Therefore, because the shoulder is not among the body parts listed in section 42-9-30, Therrell argues her disability was instead governed by the catch-all provision of 42-9-30(20) which would potentially allow for a longer period of compensation—up to 500 weeks rather than the maximum of 220 weeks scheduled for the loss of an arm. 

Therrell asserts that the cases of Gilliam v. Woodside Mills, 312 S.C. 523, 435 S.E.2d 872 (Ct. App. 1993), overruled on other grounds, 319 S.C. 385, 461 S.E.2d 818 (1995), and Roper v. Kimbrell’s of Greenville, Inc., 231 S.C. 453, 99 S.E.2d 52 (1957), lend support to her position.  Her reliance on these cases is misplaced.  In Gilliam, the issue before the court was whether the claimant suffered injuries to more than one part of the body.  The compensable accident damaged Gilliam’s right knee and hip, requiring a total hip replacement.  The court determined these were multiple injuries justifying an award for permanent and total disability pursuant to section 42-9-10 (Supp. 2003).  In contrast, Therrell offered no evidence that she sustained more than one injury. 

The Roper court affirmed an award of loss of use to both arms, even though there was no direct injury to the arms themselves.  The Roper court held the determination was an issue of fact, stating nothing “in the statute relating to workmen’s compensation suggests restriction of their meaning to such total or partial loss of use as has resulted from a direct injury to the member itself.”  Roper, 231 S.C. at 456, 99 S.E.2d at 54. 

In deciding whether to award compensation as for a scheduled injury as opposed to a non-scheduled general disability, our supreme court has held:

The commission may award compensation to a claimant under the scheduled loss statute rather than the general disability statutes so long as there is substantial evidence to support such an award.

An award under the scheduled loss statute, however, is premised upon the threshold requirement that the claimant prove a loss, or loss of use of, a specific “member, organ, or part of the body.”

Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555-56, 393 S.E.2d 172, 173 (1990) (citation omitted).

Based on our review of the record, we conclude there is substantial evidence to support the commission’s finding that Therrell’s injury was properly compensable under section 49-2-30 as a scheduled loss to an arm.  Therrell’s own testimony indicates her injury affected the use of her right arm, not her shoulder alone.  She described her injury as curtailing her ability to use her right hand and arm—essentially requiring her to become left-hand dominant rather than right-hand dominant as she had been before.  Moreover, we note Therrell’s treating physician rated her injury as an impairment of the “right upper extremity.” 

For these reasons, we find Therrell’s injury was properly classified as the “loss of use of an arm” under section 42-9-30(13).  The ruling of the circuit court affirming the commission is therefore

AFFIRMED.

HEARN, C.J., and CURETON, A.J., concur.