SC Workers’ Compensation – Contested Hearings – Game On

Jan 28, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court decision amply illustrates just how contested workers’ compensation hearings can be. Less experienced attorneys who merely advertise for workers’ compensation cases wrongly believe that such cases are “easy” or “informal.” On the contrary, these cases can quickly become full litigation matters. The only difference between workers’ compensation cases and other civil cases is there is no “closing arguments.” All other elements (interrogatories, requests to produce documents, depositions of both fact and expert witnesses, including treating physicians) are part of the process. A mistake at any level can turn an otherwise winable case into a losing one. Better make sure your attorney is an experienced litigator, preferrably one who does both workers’ compensation and regular civil cases.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Melenia Trotter, Employee, Petitioner,

v.

Trane Coil Facility, Employer, and Phoenix Insurance Company, Carrier, Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Richland County
James E. Lockemy, Circuit Court Judge

Opinion No. 27024
Heard June 22, 2011 – Filed August 15, 2011

REVERSED

Ann McCrowey Mickle, of Mickle & Bass, of Rock Hill, and Stephen Benjamin Samuels, of Samuels Law Firm, L.L.C., of Columbia, for Petitioner.

Rebecca Anne Roberts and Byron P. Roberts, both of Roberts Law Group, L.L.C., of Chapin, for Respondents.

JUSTICE BEATTY:  Melenia Trotter (“Trotter”) was awarded workers’ compensation benefits for a back injury by the South Carolina Workers’ Compensation Commission (“Commission”).  The circuit court affirmed.  The Court of Appeals reversed in part, vacated in part, and remanded, finding the Commission abused its discretion in denying requests made by the employer and its carrier, Trane Coil Facility and Phoenix Insurance Co. (collectively, “Trane”), for a continuance or to hold the record open for the depositions of two witnesses to be taken.  Trotter v. Trane Coil Facility, 384 S.C. 109, 681 S.E.2d 36 (Ct. App. 2009).  This Court granted Trotter’s petition for a writ of certiorari to review the opinion of the Court of Appeals.  We reverse.

I.  FACTS

Trotter was employed by Spherion, a temporary agency, in August 2004.  At that time, she was sent to work for a 90-day trial period with Trane, a manufacturer of industrial air-conditioners in Blythewood, South Carolina.

After completing the probationary period, Trotter was hired by Trane for a permanent position in November 2004.  Trotter worked at “the turb and trim station,” which consisted of using an “air driver” (a screwdriver with a blade) to trim down tubes to the same length, and then “turbulating” the tubes by putting a spring into each tube.  Trotter was on her feet most of the day and had to “push” into the tubes and move her lower body, particularly her hips, back and forth to perform her work.  She spent approximately ninety percent of each workday, from 5:30 a.m. to 4:00 p.m., engaged in this activity.

According to Trotter, she began having spasms and some lower back pain that extended down her legs in December 2004, which she mentioned to her Team Leader, Darryl Cloud, and to Duane DeBoo,^[1] Trane’s Safety Coordinator.  Trotter continued to work with increasing discomfort in December 2004 and January 2005.

On Monday, January 31, 2005, Trotter was “turbulating the coil” when she felt “like something popped in [her] back” and experienced “excruciating pain.”  Trotter stated she reported this incident to Cloud, her Team Leader.

Trotter worked all that week with worsening pain and “really bad” back spasms.  On Friday, February 4, 2005, she reportedly told Cloud and her supervisor, Pat Charleston, that she had hurt her back while turbulating and that she was in pain and needed to have something done.  Trotter stated Charleston advised her that he would get DeBoo to come over and talk to her, but she did not see DeBoo before her shift ended and she went home.

That same Friday, Trotter made an appointment for the following Monday to see Dr. W. Scott James, III, a physician with Carolina Orthopaedic Surgery Associates.  However, on Saturday, February 5th, Trotter had “[t]errible pain,” so she went to the emergency room at Piedmont Medical Center in Rock Hill.

Trotter was seen by Dr. James on Monday, February 7, 2005.  She told him that she had been having pain at work for the past “several months.”  He scheduled an MRI and gave her a doctor’s note to stay off work.  Trotter called Trane’s personnel office and spoke to Carlos Mays, who told her to bring in the doctor’s slip.  She did so and allegedly showed it to her Supervisor, Charleston, who made a copy of it.  Trotter did not return to work after February 4, 2005.

The MRI revealed Trotter had a large, herniated disc at L5-S1 with marked compression of the right S1 nerve root.  Following Dr. James’s recommendation, Trotter underwent surgery on February 21, 2005.^[2]  Dr. James indicated in his notes that Trotter likely had a bad disc in her back that was aggravated by her job change.

Within a week after her surgery, Trotter called DeBoo and left a message regarding her work injury, but he did not return her call.  Trotter called the personnel office and spoke to Adrian Barnhill, Trane’s Human Resources Manager, who arranged a conference call on February 28, 2005 with Barnhill, DeBoo, Charleston, Mays, and Trotter.  Trotter told them that she had had a work-related accident and that the turbulator had caused her to suffer a back injury.  Trotter had never filed a workers’ compensation claim before, so she asked them what she needed to do.  They asked her to submit a written statement providing details of the accident, which she did on April 14, 2005.

On May 11, 2005, Trotter filed a Form 50 alleging an injury by accident to her back. Trane denied the claim, maintaining it did not receive notice of the injury until after Trotter’s surgery and that there was insufficient proof of a work-related injury.

A hearing was held on September 20, 2005 before a single commissioner.^[3]  By order filed May 5, 2006, the commissioner found Trotter had established a compensable claim for her back and that Trane was responsible for all causally-related medical treatment, both past and future as directed by Dr. James, and “temporary total benefits from Mrs. Trotter’s last day of work and continuing.”

The commissioner noted that she had denied Trane’s motions for a continuance or to leave the record open in order to take the depositions of Dr. James and Charleston and to add Spherion as a party.  The commissioner stated Trane had the opportunity to depose Dr. James prior to the hearing, but it chose not to do so at that time for strategic reasons.  Further, Charleston was scheduled to appear at the hearing, but he became incapacitated suddenly due to illness.  She twice granted motions to hold the record open for Charleston’s deposition to be taken, but no deposition was ever scheduled due to Charleston’s continuing incapacity, so she closed the record.  Finally, as to adding Spherion as a defendant, the commissioner found Trotter was employed with Trane, not Spherion, at the time of her injury.

An Appellate Panel of the Commission unanimously upheld the commissioner’s order and adopted the findings of fact and conclusions of law contained therein in full.  The circuit court affirmed.

Trane appealed to the Court of Appeals, which reversed in part, vacated in part, and remanded.  Trotter v. Trane Coil Facility, 384 S.C. 109, 681 S.E.2d 36 (Ct. App. 2009).  The Court of Appeals found the Commission abused its discretion in denying Trane’s motions for a continuance or to hold the record open for the depositions of Dr. James and Charleston to be taken.  Id. at 118, 681 S.E.2d at 41.  It found Trane had exercised due diligence to obtain the depositions and the testimony was necessary to the case. Id. at 117-19, 681 S.E.2d at 41.  The Court of Appeals vacated the remainder of the circuit court’s order and remanded “all issues” to the Commission for reconsideration following the taking of the additional testimony.  Id. at 119, 681 S.E.2d at 42.  This Court has granted Trotter’s petition for a writ of certiorari.

II.  STANDARD OF REVIEW

The Administrative Procedures Act (APA) establishes the standard for judicial review of workers’ compensation decisions.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 689 S.E.2d 615 (2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  Under the APA, this Court can reverse or modify the decision of the Commission where the substantial rights of the appellant have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence considering the record as a whole.  Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 699 S.E.2d 687 (2010); Pierre, 386 S.C. at 540, 689 S.E.2d at 618.

III.  LAW/ANALYSIS

A.  Requests for Continuance & to Leave Record Open

On appeal, Trotter contends the Court of Appeals erred in finding the denial of Trane’s requests for a continuance or to leave the record open to depose Pat Charleston and Dr. James constituted an abuse of discretion.

A commissioner has the authority to postpone a scheduled hearing in a workers’ compensation matter for “good cause,” which includes such reasons as illness and the need for additional discovery.  S.C. Code Ann. Regs. 67-613(B) (Supp. 2010); see also id.67-215(A)(5) (motions).

The granting or refusal of a request for a continuance rests in the sound discretion of the hearing commissioner, whose ruling will not be disturbed unless a clear abuse of discretion is shown.  Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745 (1954); see alsoWilliams v. Bordon’s, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980) (“It has long been the rule in this State that motions for a continuance are addressed to the sound discretion of the trial judge, and his ruling will not be upset unless it clearly appears that there was an abuse of discretion to the prejudice of appellant.”).

For appellate purposes, an abuse of discretion occurs where the ruling is based on an error of law or, where the ruling is grounded upon factual findings, is without evidentiary support.  Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 681 S.E.2d 885 (2009); Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000); Bartlett v. Rachels, 375 S.C. 348, 652 S.E.2d 432 (Ct. App. 2007);Burroughs v. Worsham, 352 S.C. 382, 574 S.E.2d 218 (Ct. App. 2002).

“Of necessity it must be left to the commission to determine whether or not a case shall proceed to trial or be continued.”  Gurley, 225 S.C. at 51-52, 80 S.E.2d at 747.  Where a party is not prejudiced by the denial of a motion for a continuance, reversal is not required.  Wright v. Hiester Constr. Co., 389 S.C. 504, 698 S.E.2d 822 (Ct. App. 2010).

(1)  Pat Charleston

As to Charleston, he was supposed to testify at the September 20th hearing, and his unavailability was sudden.  He was hospitalized on the weekend before the hearing and had surgery the day of the hearing.  The commissioner granted Trane’s request to hold the record open for 14 days from the hearing date and, when Charleston was still incapacitated at the end of that time, the commissioner granted Trane’s October 4, 2005 request for a two-week extension and agreed to hold the record open until October 20, 2005.[4]  No deposition was ever scheduled, and the commissioner closed the record on October 20, 2005.  Based on everything in the record, we find the commissioner did not commit a clear abuse of discretion in closing the record.

We agree with Trane that it was not “at fault” in failing to obtain Charleston’s deposition, as Charleston was ill.  However, the Court of Appeals specifically acknowledged that “the exact date on which Charleston would become available for a deposition was unknown[.]”  Trotter, 384 S.C. at 117, 681 S.E.2d at 41.  The only medical information submitted to the commissioner by Trane at that time came from Charleston’s treating physician, who indicated Charleston was still hospitalized, that he was unable to participate in a deposition, and that his prognosis was “poor.”  Charleston was suffering from a life-threatening illness (cancer) with no certain recovery date.  After a month, during which time no deposition was scheduled and no update had been received from Trane, the commissioner closed the record.

Although the Court of Appeals states Trane did not ask the commissioner to leave the record open “indefinitely,” that is, in effect, what is being urged on appeal as there is no indication in the record that Charleston would have been available for a deposition at any time prior to the issuance of the commissioner’s order in May 2006.  Trane did maintain at the appeal before the circuit court that Charleston was then well enough to provide a deposition, but that was in 2007, well after the 2005 hearing in this matter and the issuance of the commissioner’s order in 2006.  To further delay the resolution of Trotter’s claim due to the continuing illness of a witness, however unfortunate the circumstances, would not serve the interests of justice, and was a factor necessarily considered by the commissioner in making her decision to close the record.

Moreover, Trane has shown no prejudice on appeal.  Charleston’s e-mail of February 28, 2005 to DeBoo was admitted into evidence.  The e-mail set forth the essence of Charleston’s expected testimony, i.e., that Trotter reported a back injury to him on Friday, February 4, 2005, but she did not report it as being work-related.  Charleston further stated in his e-mail that Trotter went home on Friday, February 4th, and the next time she called, Trotter reported that she had undergone surgery and would be out of work for a few months.  Thus, Charleston’s account of events was in the record for consideration by the commissioner, and Trane has not shown any other material information that Charleston would have been able to contribute.^[5]  No error of law has been alleged or shown, and the commissioner’s factual findings in this regard are fully supported by the record.

(2)  Dr. James

As for Dr. James, we agree with Trotter that the Court of Appeals mischaracterized the evidence when it stated Trane “sought to depose Dr. James prior to the hearing, but due to scheduling difficulties, the deposition was scheduled for a date after the hearing.” Trotter, 384 S.C. at 118-19, 681 S.E.2d at 41 (emphasis added).  Upon reviewing the record, we find there is evidentiary support for the commissioner’s finding that Trane had the opportunity to depose Dr. James on the agreed-upon date of September 7, 2005; however, it chose to cancel the deposition for strategic reasons.

On August 5, 2005, the Commission sent all parties a “Notice of Hearing” advising them that the hearing on Trotter’s claim would be held on September 20, 2005.  The parties initially scheduled the depositions of both Trotter and Dr. James for August 23, 2005, but when other, unrelated hearings arose for that date, the parties agreed to take both depositions on September 7, 2005.  On August 11, 2005, Trane formally noticed the depositions of both Trotter and Dr. James for the agreed-upon date of September 7th.  Both Trotter and Dr. James confirmed their availability.

Subsequently, on August 29, 2005, Trane told Trotter’s counsel that it wanted to postpone Dr. James’s deposition so it could have the transcript of Trotter’s deposition in hand before deposing Dr. James.  Trotter’s counsel opposed the rescheduling, stating she did not believe this was a legitimate reason to postpone the proceedings.  Counsel stated that Dr. James would be available on September 7th unless the Commission ordered otherwise.

Trane filed a motion for a continuance with the Commission on August 31, 2005.  On September 1, 2005, before a ruling had been made on the motion, Trane sent Trotter’s counsel a letter informing her that it was changing Dr. James’s deposition date from September 7th to September 14th.  Trane apparently contacted Dr. James’s office directly and reset the date without consulting Trotter’s counsel.  Trotter’s counsel again opposed the rescheduling, stating she already had three other depositions set for September 14th. Therefore, she planned to remain available for the deposition to proceed on September 7th as previously agreed.

On September 7th, Trane took Trotter’s deposition as noticed.  Dr. James was available, but Trane cancelled his deposition and chose not to depose him at that time.  The commissioner thereafter denied Trane’s motion for a continuance of the hearing, finding Trane had the opportunity to depose Dr. James, but had elected not to proceed on the agreed-upon date of September 7th for strategic reasons.  Trane’s motion to hold the record open for Dr. James’s deposition to be taken on a date after the hearing was likewise denied.

We conclude the commissioner did not abuse her discretion in denying Trane’s motions for a continuance or to hold the record open for the taking of Dr. James’s deposition.  Trane could have attempted to schedule the depositions sequentially in the beginning in order to achieve its goal of having the transcript of Trotter’s deposition before deposing Dr. James.  However, once all parties had consented to taking the depositions on September 7th and Trane had formally noticed the depositions for that date, its options became more limited.  Contrary to Trane’s assertion, it does not have an unfettered right to postpone the hearing simply to implement a better strategy for itself.  Trane assumed the risk that its motion would be denied, which was not prudent since a continuance is not a matter of right, but of discretion.  See 17 C.J.S. Continuances § 4 (2011) (observing continuances are not favored and “[a] party has no absolute right to a continuance as a matter of law” (footnote omitted)).

In addition, Trane has not demonstrated any prejudice.  Dr. James’s medical notes were submitted to the commissioner and considered as part of the record, and on appeal Trane has shown no material information that Dr. James would have provided that is not already included in the record.  Dr. James’s notes fully address his diagnosis and treatment of Trotter’s medical condition, and he specifically conceded in his notes that he had no direct knowledge of the circumstances surrounding Trotter’s injury.  Consequently, we hold the commissioner did not abuse her discretion in denying the requests for a continuance or to hold the record open for the deposition of Dr. James to be taken.

Lastly, we discern nothing “inconsistent” in the commissioner’s rulings to initially leave the record open for the deposition of Charleston to be taken, but not Dr. James, as found by the Court of Appeals.  Trotter, 384 S.C. at 119 n. 2, 681 S.E.2d at 42 n.2.  Trane’s request pertaining to Charleston was based on medical necessity and arose suddenly, and the request as to Dr. James was based on Trane’s desire to obtain a strategic advantage.  The circumstances were not similar and need not have been treated in the same manner by the commissioner.

A tribunal necessarily exercises wide discretion in managing a case, and decisions denying a request for a continuance are “rarely” overturned.  Morris v. State, 371 S.C. 278, 283, 639 S.E.2d 53, 56 (2006) (citing State v. Lytchfield, 230 S.C. 405, 95 S.E.2d 857 (1957)); M & M Group, Inc. v. Holmes, 379 S.C. 468, 475, 666 S.E.2d 262, 265 (Ct. App. 2008).  “Every reasonable presumption in favor of a proper exercise of the trial court’s discretion will be made.”  17 C.J.S. Continuances § 5 (2011).  Based on the foregoing, we reverse the decision of the Court of Appeals and reinstate the order of the Commission, which had adopted the single commissioner’s findings and conclusions in full.

B.  Scrivener’s Error Regarding Date of Accident

Trotter next contends the Court of Appeals repeated a scrivener’s error made by the commissioner regarding the date of the accident and asks this Court to correct the error or to grant her leave to petition the Commission for correction of the date.

In her order, the commissioner stated in her “Findings of Fact” that (1) Trotter first experienced back pain in December 2004, (2) Trotter felt a “pop” in her back and had “excruciating pain” while “turbulating” at work on January 31, 2005, and (3) Trotter’s injury occurred “in 2005.”  All of these findings are supported by the evidence.

Trotter points out, however, that in the “Conclusions of Law” portion of her order, the commissioner incorrectly states:  “That on or about December 31, 2004 Mrs. Trotter felt a pop in her back while working.”  Trotter asserts the December 31, 2004 date is incorrect as all parties concede Trotter was not even working that day, so it is obviously a scrivener’s error.

The Court of Appeals stated in its recitation of the facts that Trotter felt a “pop” in her back on January 31, 2005 while she was working.  Trotter, 384 S.C. at 112, 681 S.E.2d at 38.  It later quoted a passage from the commissioner’s order that contained the December 31, 2004 date that Trotter contends is a scrivener’s error.  Id. at 115, 681 S.E.2d at 39-40.

In response, Trane contends the issue whether the December 31, 2004 reference is a scrivener’s error is not preserved as Trotter did not attempt to resolve this question at the Commission or in the circuit court.  Trane further argues the Court of Appeals noted the inconsistencies in the dates in its opinion.  Trane states Trotter cannot now argue that the inconsistency was merely a scrivener’s error, and it “requests that this date, along with the date[s] of January 31, 2005 and February 4, 2005, [the date on the Form 50] remain in the record to be resolved on remand.”

Contrary to Trane’s assertion, the Court of Appeals did not discuss the discrepancies in the commissioner’s order.  Trotter did raise the issue in her petition for rehearing to the Court of Appeals, but rehearing was denied.  In addition, we find Trotter’s request is not barred by principles of error preservation.  Cf. Rule 60(a), SCRCP (stating no explicit time limit for the correction of clerical errors).

Trane acknowledged during oral argument that the commissioner’s order also contains a second reference to the December 31, 2004 date in the “Conclusions of Law,” wherein she stated Trane’s workers’ compensation carrier “shall reimburse Mrs. Trotter’s private insurance carrier for all causally related medical treatment incurred since the accident date of December 31, 2004.”  Because all parties concede that Trotter was not working on December 31, 2004 and since linking the date for reimbursing medical expenses to this 2004 date could cause confusion, we grant Trotter’s request that this Court correct what are clearly scrivener’s errors.  We additionally direct the Commission to correct its records to change the December 31, 2004 references to January 31, 2005.

IV.  CONCLUSION

We conclude the Court of Appeals erred in finding the Commission abused its discretion in denying Trane’s motions for a continuance or to keep the record open for the depositions of Charleston and Dr. James to be taken.  Consequently, we reverse the opinion of the Court of Appeals and reinstate the order of the Commission.^[6]  However, we grant Trotter’s request to correct the scrivener’s errors regarding the date of Trotter’s accident and additionally direct the Commission to correct its records to reflect this change.

REVERSED.

TOAL, C.J., PLEICONES, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1]  Several versions of DeBoo’s name appear in the decisions of this case, but the spelling above is supported by the record.

[2]  Dr. James’s medical notes of April 22, 2005 indicate that due to her significant pain and the fact there could be a delay in obtaining approval of a workers’ compensation claim, he discussed with Trotter the option of going under her regular insurance, but told her that it was her decision and he would be willing to treat her, either way.  Trotter decided to proceed under her regular insurance rather than delay her surgery.

[3]  DeBoo, Charleston, Cloud, and Mays were not present at the hearing.  Trane had terminated Cloud for misconduct, including not following procedures, not showing up for work, and taking part in inappropriate conversations, and his whereabouts were unknown.  Charleston was hospitalized and scheduled to have surgery the day of the hearing.  Barnhill  was the only Trane employee to appear and testify for the employer.  No explanation was given for Trane’s failure to call DeBoo and Mays as witnesses.

[4]  Trane contends it was not notified of the second extension until the date the extension period expired.  However, the question of notice was not addressed by the Court of Appeals and, thus, is not properly before this Court.

[5]  Trane need not have relied only upon Charleston regarding notice.  For example, Trotter testified that she had called the personnel office and spoke to Mays about her work injury prior to her surgery, but we note Trane did not call Mays as a witness to refute this testimony.  Additionally, Trotter and Trane note in their briefs that Charleston is now deceased.  Thus, we find granting an order of remand for his testimony would serve no purpose.

[6]  Based on our decision, we need not address Trotter’s remaining issue, in which she argued the Court of Appeals erred in vacating the remainder of the circuit court’s order and remanding all issues to the Commission.

SC Workers’ Compensation – Permanent and Total Disability – SSDI Offset

Jan 28, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This very important recent SC Supreme Court decision finally settles the question of whether the Workers’ Compensation Commission has the authority to order Social Security Disability Income offset language. Previously, such language was only put in Clincher settlement agreements. Without such offset language, a lump sum award of money might actually harm an injured worker when they applied for disability. Under this case, the Commission can now order offset which allows a claimant to receive a lump sum payment but, as a matter of legal fiction, “spread it out” over the course of his/her expected lifetime. In this way, the claimant gets the money now, but the practical effect is that their Social Security disability award is not affected (i.e. lowered). This provision highlights the  interplay between workers’ compensation claims and other areas of the law (third-party actions, unauthorized medical care liens, SSDI, etc.) Better make sure your attorney understands these issues and how they relate to one another.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Allie James, Claimant, Appellant,

v.

Anne’s Inc., Employer, and Villanova Insurance Company, in liquidation through the South Carolina Property & Casualty Insurance Guaranty Association, Carrier, Respondents.

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No.  26762
Re-Heard June 24, 2010 – Re-Filed October 25, 2010

REVERSED AND REMANDED

Jody Vann McKnight, of the Reisen Law Firm, of Charleston, for Appellant.

Mark D. Cauthen, T. Jeff Goodwyn, Jr., and Peter P. Leventis, IV, all of McKay, Cauthen, Settana & Stubley, of Columbia, for Respondents.

Andrew Nathan Safran, of Columbia, Ronald J. Jebaily and Suzanne H. Jebaily, both of the Jebaily Law Firm, of Florence, and Stephen B. Samuels, of Columbia, all for Amicus Curiae South Carolina Injured Workers’ Advocates; William Hughes Nicholson, III, of Nicholson & Anderson, of Greenwood, for Amicus Curiae South Carolina Association for Justice; Susan Berkowitz and Stephen Suggs, both of the South Carolina Appleseed Legal Justice Center, of Columbia, for Amicus Curiae South Carolina Appleseed Legal Justice Center; and John S. Nichols and Blake A. Hewitt, both of Bluestein, Nichols & Thompson, of Columbia, for the three foregoing Amici; and Samuel F. Painter, of Nexsen Pruet, of Columbia, for Amicus Curiae South Carolina Self-Insurers Association, Inc.

JUSTICE BEATTY:  The South Carolina Workers’ Compensation Commission found Allie James (“James”) was totally and permanently disabled from a work accident and that she was entitled to a lump sum award of benefits.  The Commission denied James’s request to include language in the order prorating the lump sum award over her life expectancy after her employer and its carrier (“Respondents”) objected.  The circuit court affirmed.  James appealed, arguing the Commission has the authority to include language in the order prorating the lump sum award over her life expectancy and should have done so.  We affirmed the circuit court in James v. Anne’s Inc., 386 S.C. 326, 688 S.E.2d 562 (2010).  Subsequently, we granted James’s petition for rehearing.[1]  We now withdraw that opinion and substitute the current opinion reversing the circuit court’s order and remanding the matter in accordance with this decision.

I.  FACTS

On May 10, 2002, James sustained injuries to her back, neck, and head when she slipped and fell down some stairs while working at Anne’s Dress Shop in Charleston County. James worked for this employer for approximately twenty years before being terminated in 2003.

James sought workers’ compensation benefits for her injuries.  In 2005, the hearing commissioner found James was totally and permanently disabled as a result of the accident and that she was entitled to 500 weeks of compensation benefits, with a credit allowed for the weeks of compensation already paid.  The hearing commissioner further found it was appropriate for the award to be made in a lump sum.

The hearing commissioner denied James’s request to include language in the order prorating the lump sum award over her life expectancy using the life expectancy table provided by section 19-1-150 of the South Carolina Code[2] after Respondents objected.  The hearing commissioner concluded she did not have the authority to include proration language in the order in the absence of consent from Respondents.

James sought review from the full Commission.  In a two-to-one decision, the Commission upheld the hearing commissioner.  The dissenting commissioner found the Commission does have the authority to include proration language in an order, but that there was no error in failing to include such language in the current case.

James appealed to the circuit court, which affirmed the Commission in a form order.  James moved for reconsideration, which the circuit court denied in a formal order filed November 15, 2006.

James appealed to this Court, which affirmed in a split decision.   James v. Anne’s Inc., 386 S.C. 326, 688 S.E.2d 562 (2010).  The majority held that, without an express grant of authority from the South Carolina General Assembly, the Commission did not have the authority to include language prorating a lump sum award over a claimant’s life expectancy without the consent of all parties.  The dissent found that authority to include proration language existed by virtue of the statute conferring a general grant of authority to the Commission to decide all questions arising under the act, citing S.C. Code Ann. § 42-3-180 (1985).

II.  LAW/ANALYSIS

James asserts the circuit court erred in holding the Commission lacks the authority to include language in workers’ compensation orders prorating a lump sum award over a claimant’s life expectancy in the absence of consent from all parties, and in refusing to include such language in her case.  We agree.

(A) Standard of Review

An appellate court has the power upon review to reverse or modify a decision of an administrative agency if the findings and conclusions of the agency are (1) affected by an error of law, (2) clearly erroneous in view of the reliable and substantial evidence on the whole record, or (3) arbitrary or capricious or characterized by abuse of discretion or a clearly unwarranted exercise of discretion.  Gray v. Club Group, Ltd., 339 S.C. 173, 182, 528 S.E.2d 435, 440 (Ct. App. 2000).

(B) Justiciability

As an initial matter, we note the three amici participating in the oral argument of this case have filed a joint brief regarding the merits of the appeal and asserting as a threshold issue that this matter is not justiciable.  The amici specifically assert Respondents lack standing because they cannot show any injury from allocating the lump sum award as it is merely a mathematical calculation that will have no effect on their liability for compensation.  We conclude the amici’s allegation regarding justiciability, and more particularly standing, is not properly before the Court in the current procedural posture.

“Before any action can be maintained, there must exist a justiciable controversy.”  Byrd v. Irmo High Sch., 321 S.C. 426, 430, 468 S.E.2d 861, 864 (1996).  “A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.”  Pee Dee Elec. Coop. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983).  Justiciability encompasses several doctrines, including ripeness, mootness, and standing.  Jackson v. State, 331 S.C. 486, 489 S.E.2d 915 (1997).

Rule 213 of the South Carolina Appellate Court Rules, governing Amicus Curiae Briefs, states an amicus brief is limited to the issues raised by the parties:  “The brief shall be limited to argument of the issues on appeal as presented by the parties and shall comply with the requirements of Rules 208(b) and 211.”  Rule 213, SCACR.

Although James did argue that proration would not have any effect upon Respondents because it would not change the actual amount of the monetary award, it was in the context of responding to Respondents’ argument that proration over a claimant’s lifetime was not authorized because our workers’ compensation statutes limit a claimant to a maximum of 500 weeks of compensation in most instances.  Thus, justiciability and standing were not raised by the parties.

This Court has the inherent authority to consider justiciability.  However, when a party belatedly attempts to raise the issue of standing, our courts have applied error preservation principles and held that the matter was not preserved for review where the trial court was not given an opportunity to first rule on the issue.[3]

In the current appeal, it is not a party, but the amici who are attempting to belatedly raise standing, but we find they are similarly precluded from asserting the issue on error preservation grounds because the amici can argue only the issues that were raised by the parties.  See Rule 213, SCACR.

(C) Social Security Offset

In this case, James sought a proration of her lump sum award using the life expectancy table found at S.C. Code Ann. § 19-1-150.  As noted by the circuit court, James’s “concern is that her Social Security Disability benefits will be offset by the workers’ compensation benefits she receives.  [James] argues that the proration language is required to maximize her workers’ compensation award . . . .”

Under federal law, when a person is deemed disabled and is entitled to monthly disability payments under the Social Security Act, the disability payments must be reduced when the combined amount of the person’s monthly Social Security disability payments and any monthly workers’ compensation benefits exceeds eighty percent of the person’s pre-disability earnings.  See 42 U.S.C.A. § 424a(a) (2003) (providing for the reduction of disability benefits).  When the workers’ compensation benefits are “payable on other than a monthly basis (excluding a benefit payable as a lump sum except to the extent that it is a commutation of, or a substitute for, periodic payments), the reduction under this section shall be made . . . in such amounts as the Commissioner of Social Security finds will approximate as nearly as practicable the reduction prescribed by subsection (a) of this section.”  Id. § 424a(b) (emphasis added).  Thus, lump sum awards generally necessitate a reduction in Social Security disability benefits in instances where they result from a commutation of periodic payments.

The Social Security Administration does not apply a reduction or an offset, however, where a state has enacted a reduction of their workers’ compensation benefits in these circumstances by February 18, 1981.  This reduction (by the individual states) is known as a “reverse-offset” provision.  Tommy W. Rogers & Willie L. Rose, Workers’ Compensation and Public Disability Benefits Offset from Social Security Disability Benefits, 29 S.U. L. Rev. 57, 60 (2001).

South Carolina did not legislatively enact a reverse-offset provision.  Grady L. Beard et al., The Law of Workers’ Compensation Insurance in South Carolina, 567 (5th ed. 2008); see also 70B Am. Jur. 2d Social Security and Medicare § 1490 (2000) (listing states that the Social Security Administration has recognized as having met the legal criteria for reverse-offset plans; South Carolina is not included in this list).

In order to minimize the reduction of her Social Security benefits, James seeks to prorate her lump sum, workers’ compensation award for a  permanent disability over her lifetime using the life expectancy table set forth in section 19-1-150.  James asserts the Social Security Administration expressly accepts the monthly amount derived from using a life expectancy table as one of the bases for calculating the offset to be made to Social Security benefits.

The Social Security Administration will use the prorated time frame stated in an order awarding a lump sum benefit if a time frame is provided; otherwise, it will use an alternative basis for this computation:

According to SSA policy, a lump sum award of workers’ compensation benefits . . . will be prorated at an established weekly rate.  The priority for establishing a weekly rate of payment is as follows:

(1) the rate specified in the lump sum award, including a rate based on life expectancy;

(2) the periodic rate paid prior to the lump sum award if no rate was specified in the lump sum award; or

(3) the state workers’ compensation maximum rate in effect on the date of injury, which is the periodic rate that, in almost every case, would have been payable had periodic payments been made instead of a lump sum, if a workers’ compensation claim is involved and if no rate was specified in the lump sum award and no prior periodic payments had been made.

2A Soc. Sec. Law & Prac. § 26:72 (2006) (footnotes omitted); see also United States Dep’t of Health & Human Servs., 979 F.2d 1082, 1084 (5th Cir. 1992) (noting the Social Security Program Operations Manual specifically sets forth this method for prorating lump sum awards).

(D) Authority of the Commission

In the current appeal, the circuit court concluded that it was “constrained to agree with the decision of the Commission that no authority exists in our Workers’ Compensation laws for allocation of a lump sum award over the claimant’s life expectancy in the absence of consent of the parties.”

(1) Utica-Mohawk Mills v. Orr

James initially cited Utica-Mohawk Mills v. Orr, 227 S.C. 226, 87 S.E.2d 589 (1955), in addition to the general authority of the Commission under statutory law, for support of the Commission’s use of proration language.  Although Utica-Mohawk Mills is often cited in the Commission’s orders along with statutory law when prorating lump sum awards, the circuit court concluded Utica-Mohawk Mills is not applicable here because that case involves “construing a permanent partial disability award of the Commission.”  The circuit court stated this case essentially stands for the proposition that, “in the absence of the consent of the parties” the Commission and the Courts are without authority to “increase the amount of the weekly installments above the sum [allowed by law] or [to] reduce the length of the statutory period.”

Utica-Mohawk Mills interpreted a statute concerning partial disability and held that the weekly compensation (not to exceed 300 weeks) for a claimant who sustained a thirty percent permanent disability should be calculated by taking a percentage of the difference between the average weekly wages he was earning before the injury and the average weekly wages that the employee was able to earn after the injury.  Id. at 230, 87 S.E.2d at 591.

As the parties concede on appeal, although the Commission, the Social Security Administration, and the courts have referred to theUtica-Mohawk Mills case in this context, it does not actually address the lifetime proration issue presently before us.  Further, reliance on this case is misplaced because Utica-Mohawk Mills was issued in 1955, but the first offset provision in the Social Security Act was not added until 1956, which “conclusively shows that Utica-Mohawk’s authority for a reduction in workers’ compensation benefits before social security disability insurance benefits are reduced is unfounded.”  Grady L. Beard et al., The Law of Workers’ Compensation Insurance in South Carolina, 568 (5th ed. 2008).  “Nonetheless, due to its history of accepting the priority of workers’ compensation reductions under South Carolina law, the Social Security Administration accepts this case as authority that workers’ compensation benefits can be reduced to maximize a claimant’s entitlement to Social Security disability insurance benefits.”  Id.

For the reasons noted above, we agree with the circuit court that the Utica-Mohawk Mills case has no application here.  However, we turn now to consideration of the Commission’s authority under statutory law.

(2) Statutory Authority

Section 42-3-180 of the South Carolina Code confers a general grant of authority on the Commission to decide all questions arising under the Workers’ Compensation Act:  “All questions arising under this Title, if not settled by agreement of the parties interested therein with the approval of the Commission, shall be determined by the Commission, except as otherwise provided in this Title.”  S.C. Code Ann. § 42-3-180 (1985) (emphasis added).

The circuit court found section 42-3-180 did not specifically address the Commission’s authority to allocate lump sum awards over the employee’s life expectancy.  The circuit court further found that, because “workers’ compensation statutes provide an exclusive compensatory system in derogation of common law rights, we must strictly construe such statutes, leaving it to the legislature to amend and define any ambiguities,” citing Cox v. BellSouth Telecommunications, 356 S.C. 468, 472, 589 S.E.2d 766, 768 (Ct. App. 2003).

In Cox, the Court of Appeals held that the workers’ compensation statute prohibiting total lump sum awards in lifetime benefits cases should be strictly construed and not expanded to prohibit partial lump sum awards in lifetime benefits cases.  The court stated, as a matter of first impression, that the Commission erred as a matter of law in ruling that it was not empowered to award a partial lump sum.  Id. at 473, 589 S.E.2d at 769.  The court explained that “[p]ermitting partial lump sum payments provides the [C]ommission needed flexibility in lifetime benefits cases, flexibility it regularly exercises with respect to all other compensation awards, to ensure the best interests of the injured worker are protected.”  Id. at 472-73, 589 S.E.2d at 768-69 (emphasis added).

Cox involved the strict construction of a statute prohibiting certain awards.  In contrast, there is nothing in the Act that prohibits, either expressly or impliedly, the proration language at issue here.  Cf. Geathers v. 3V, Inc., 371 S.C. 570, 641 S.E.2d 29 (2007) (finding where South Carolina had not  adopted the last injurious exposure rule, but there was both statutory and case law that favored adoption of this rule rather than an apportionment rule, South Carolina would adopt the last injurious exposure rule; thus, the Commission erred in using the apportionment rule to apportion liability between two carriers when an employee is injured after working for successive employers).

Cox confirms that the Commission regularly exercises its flexibility in making compensation awards to ensure the best interests of the workers are protected to the extent the award is not otherwise prohibited by the Workers’ Compensation Act.  This is consistent with the general rule that workers’ compensation law is to be liberally construed in favor of coverage in order to serve the beneficent purpose of the Act; only exceptions and restrictions on coverage are to be strictly construed.  See Peay v. U.S. Silica Co., 313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993) (“[W]orkers’ compensation statutes are construed liberally in favor of coverage.  It follows that any exception to workers’ compensation coverage must be narrowly construed.” (internal citation omitted)); Cross v. Concrete Materials, 236 S.C. 440, 114 S.E.2d 828 (1960) (stating workers’ compensation law will be construed liberally to effect its beneficent purpose);Olmstead v. Shakespeare, 348 S.C. 436, 559 S.E.2d 370 (Ct. App. 2002) (noting the law is liberally construed to apply coverage, while exceptions are strictly construed).  Therefore, Cox does not require the strict construction of the Act’s provisions in this case.

Respondents argue the proration provision is typically part of a negotiated settlement, whereby the employee agrees to give up certain benefits to which they are entitled in exchange for inclusion of this proration language.  We find Respondents’ admitted desire to use proration language as a “bargaining chip” in these circumstances is inappropriate.  This is particularly true since the South Carolina legislature did not choose to enact a reverse-offset provision. Moreover, if, as Respondents argue, the Commission has not been authorized by the General Assembly to include proration language, then the Commission would not have the authority to include such language in cases where the employers and carriers give their “permission,” as the Commission’s authority is defined by law, not by consent.

Respondents further argue that, because the maximum period for benefits is generally 500 weeks, this is the maximum period that can be used for proration.  See S.C. Code Ann. § 42-9-10(A) (Supp. 2009) (“In no case may the period covered by the compensation exceed five hundred weeks except as provided in subsection (C).”); id. § 42-9-10(C) (stating “any person determined to be totally and permanently disabled who as a result of a compensable injury is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the five-hundred-week limitation and shall receive the benefits for life”).

The 500 weeks limitation, however, represents the limit of the monetary amount of compensation that may be recovered.  It has no relation to the duration or the extent of the injury.  A permanent impairment, by definition, lasts for a lifetime.  Thus, the proration of compensation over the claimant’s lifetime is a reasonable method of accounting for this compensation.  Proration of the lump sum award does not affect the amount of the award in any manner.  Rather, it affects only the allocation of the award; it is purely an accounting mechanism specifically approved of by the Social Security Administration in determining the amount of a Social Security offset.  The amount of the award is still limited to the value of 500 weeks of compensation and it has absolutely no effect on the liability of Respondents.

There is no reason for Respondents to object to this proration, except as a means of giving them the power to either positively or negatively impact a claimant’s receipt of Social Security disability benefits based on whether they confer or withhold their consent to proration language.  This kind of arbitrary outcome is not in accord with the purpose of our Workers’ Compensation Act.  SeeCase v. Hermitage Cotton Mills, 236 S.C. 515, 115 S.E.2d 57 (1960) (observing the courts of this country have universally viewed workers’ compensation law as being enacted for the benefit of employees and that the law is to be liberally construed for the employees’ protection; further, one of the primary purposes of the Act is to help prevent employees from becoming charges upon society for support).

We do not believe that simply prorating benefits for the maximum period of weekly benefits available under state law is a rational solution to the problem of how to account for workers’ compensation benefits.  Such a method assumes the award is intended as compensation only for that period of time, when in reality the award is intended as compensation for a lasting disability.  A permanent disability does not end after 500 weeks, and it thwarts the authority of the Commission to prohibit it from apportioning the award in the manner it deems appropriate.  See 70B Am. Jur. 2d Social Security and Medicare § 1501 (2000) (observing proration for the maximum period of benefits under state law is inconsistent with the purpose of the Social Security Act as it improperly assumes the state lump sum workers’ compensation award represents the maximum benefit over the shortest period of time, thus guaranteeing application of the Social Security offset); see also 1 Harvey L. McCormick, Social Security Claims and Procedures§ 8:32 (5th ed. 1998) (noting at least one federal Circuit Court of Appeals has held that the Social Security Administration was required to prorate a lump-sum award or settlement over the remainder of an individual’s working life (citing Hodge v. Shalala, 27 F.3d 430 (9th Cir. 1994))).

The purpose of allocating a lump sum disability award over the claimant’s lifetime is to make sure a claimant is not being economically penalized by the Social Security Administration’s calculation of an offset.  The Social Security Administration expressly recognizes and accepts such allocations as a matter of routine practice.  See 2A Soc. Sec. Law & Prac. § 26:72 (2006) (noting a state’s proration based on life expectancy in the workers’ compensation order is the Social Security Administration’s first choice to use when calculating any offset).

Section 42-3-180 of the South Carolina Code confers a general grant of authority on the Commission to address all issues arising under the Workers’ Compensation Act that are not otherwise provided for under South Carolina law.  S.C. Code Ann. § 42-3-180 (1985).  Further, section 42-9-301 authorizes the Commission to establish and award lump sum payments.  Id. § 42-9-301.

The Commission is empowered to interpret its provisions and to issue regulations governing the administration of awards.  See id.§ 42-3-30 (“The Commission shall promulgate all regulations relating to the administration of the workers’ compensation laws of this State necessary to implement the provisions of this title and consistent therewith.”); see also 100 C.J.S. Workers’ Compensation § 718 (2000) (“Workers’ compensation boards or commissions are generally empowered to make and enforce rules and regulations to enable the board or commission to carry out . . . its duties, and such rules and regulations have the force and effect of law if reasonable and not inconsistent with pertinent statutory provisions.”).

We hold the Commission has the authority to prorate a lump sum award over a claimant’s expected lifetime pursuant to its general authority under section 42-3-180 to address all issues arising under the Act and its statutory authority to fix lump sum awards.  It is undisputed that the Commission is responsible for making factual findings and addressing matters pertinent to the questions and issues before it.  S.C. Code Ann. § 42-17-40(A) (Supp. 2009); S.C. Code Ann. Regs. 67-709 (1990 & Supp. 2009).  Using the life expectancy table provided by South Carolina law to prorate a lump sum award given for a life-long disability is simply a mathematical calculation and, as such, a statement regarding this amount is a factual finding that is within the Commission’s purview.  This proration is specifically accepted under the procedures established for administering Social Security benefits and it does not affect the amount of, or the liability for, the workers’ compensation award in any way.

“A state workers’ compensation commission or board is, in the first instance, responsible for effectuating the purposes of the workers’ compensation act by administering, enforcing, and construing its provisions in order to secure its humane objectives.”  100 C.J.S. Workers’ Compensation § 706 (2000).  “Such commission, board, or bureau is vested with the authority to formulate policies and standards for administering the workers’ compensation act.”  Id.

The Commission has a long-standing practice of including proration language in the orders it issues.  Despite the result reached in the current case, the Commission has since expressly concluded in subsequent cases that it has the authority to prorate lump sum awards in order to serve the purposes of the Workers’ Compensation Act, and it has done so over the objection of the employer and its carrier.[4]  We find Respondents’ contention that use of the proration language cannot be used without its consent is untenable and is not a proper interpretation of our Workers’ Compensation Act.

In our view, the Commission’s proration of lump sum awards over an employee’s life expectancy is clearly within the purview of the Commission’s authority and serves to further the Act’s humane objectives.  This is particularly true in light of the fact that the Social Security Administration itself specifically provides for and accepts such proration language from state workers’ compensation commissions all over the country when calculating the applicable offset. To deny proration in these circumstances to the employees of our state would be inconsistent with the recognized purpose of our Workers’ Compensation Act.

III.  CONCLUSION

Based on the foregoing, we hold the Commission has the authority to prorate a lump sum award over a claimant’s life expectancy using the life expectancy table provided by South Carolina law.  Consequently, we return this case to the circuit court for it to remand it forthwith to the Commission so it can rule on James’s proration request.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.

[1] Three organizations, the South Carolina Association for Justice, the South Carolina Injured Workers’ Advocates, and the South Carolina Appleseed Legal Justice Center, filed a joint Brief of Amici Curiae in support of the petition for rehearing, and we granted their motion to participate in oral argument.  An Amicus Brief opposing the petition was filed by the South Carolina Self-Insurers Association, Inc.

[2]  See S.C. Code Ann. § 19-1-150 (Supp. 2009) (stating this table must be used to establish the life expectancy of a person in a civil action or other litigation and must be received by all courts and all persons having the power to determine evidence, along with other evidence as to the person’s health, constitution, and habits).

[3] See generally Kolle v. State, 386 S.C. 578, 690 S.E.2d 73 (2010) (finding the State’s argument regarding standing was not preserved where it was not raised at the PCR hearing, but was raised in a motion for reconsideration); Michael P. v. Greenville County Dep’t of Soc. Servs., 385 S.C. 407, 413 n.4, 684 S.E.2d 211, 214 n.4 (Ct. App. 2009) (noting some of the appellants’ arguments in support of standing were not preserved for consideration on appeal because they were not raised to and ruled upon by the family court); A Fast Photo Express, Inc. v. First Nat’l Bank of Chicago, 369 S.C. 80, 630 S.E.2d 285 (Ct. App. 2006) (discussing whether the issue of standing was properly preserved for appeal and concluding the issue was preserved because it was both raised to and ruled upon by the master-in-equity).

[4]  See Pressley v. REA Constr. Co., 374 S.C. 283, 288, 648 S.E.2d 301, 303 (Ct. App. 2007) (stating “ordinarily, the construction of a statute by an agency charged with its administration will be accorded the most respectful deference and will not be overruled absent compelling reasons”).

SC Workers’ Compensation – Medical Causation Opinions

Jan 26, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court case illustrates the required elements for medical causation opinions in workers’ compensation cases. Not only must a treating or consulting physician state a resulting condition is causally related to an accident but also must state that opinion “to a reasonable degree of medical certainty.” If those magical words are not used, a claim can be lost. And, the burden of proof is always on the claimant. Better be sure your attorney is experienced in workers’ compensation cases and knows what they are doing.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Alexander Michau, Employee, Claimant, Appellant,

v.

Georgetown County, Self-Insured Employer, through, South Carolina Counties Workers Compensation Trust, Defendants, Respondents.

Appeal from the South Carolina
Workers Compensation Commission

Opinion No. 27064
Heard October 6, 2011 – Filed November 21, 2011

REVERSED AND REMANDED

Raymond C. Fischer and William Stuart Duncan, both of Georgetown, for Appellant.

Kirsten L. Barr and Jamie C. Guerrero, both of Mt. Pleasant, for Respondents.

CHIEF JUSTICE TOAL: Appellant, Alexander Michau (Employee), appeals a ruling by the Appellate Panel of the South Carolina Workers’ Compensation Commission (Commission) denying Employee’s claim for repetitive trauma injuries to his shoulders.  Specifically, Employee challenges the Commission’s interpretation and application of section 42-1-172 of the South Carolina Code.  Because the Commission erred in admitting a medical opinion that was not stated to a reasonable degree of medical certainty, as required under section 42-1-172, we reverse and remand.

FACTS/ PROCEDURAL HISTORY

Employee alleges he sustained a compensable repetitive trauma injury to both of his shoulders on September 29, 2008, and reported it to his supervisor that same day.  Prior to this date, Employee did not report any work-related problems with his arms to Georgetown County (Employer) although he sought outside treatment.  Employee seeks reimbursement for medical expenses and an award of temporary total disability benefits.

Employee is in his sixties and has twice worked for Employer.  When he returned to work for Employer in 1988, he was initially employed as a truck driver, but eventually switched to operating a motor grader, a device used to grade and smooth dirt and gravel on roads.  Employee usually worked ten hours per day, spending about eight hours actually operating the motor grader.

Employee testified he operated two types of motor graders during his tenure with Employer.  The original motor graders had manual levers while newer models were equipped with hydraulics.  After Employer purchased the newer model, Employee operated it for approximately three years without any incident, admitting that “it was a good machine.”[1]  Employee did not file a workers’ compensation claim until he began operating the new, non-vibrating machine, but he testified that the old machine did vibrate.

In 1997, Employee first sought medical treatment with Dr. Benjamin Lawless for problems relating to his arms and shoulders. Dr. Lawless’s medical reports indicate that Employee complained of arthritis-related symptoms involving pain and swelling in his hands and redness in his joints.[2]  In August 2005, Dr. Lawless referred Employee for a total body bone scan, which also found evidence of rheumatoid arthritis.  Consequently, he referred Employee to a rheumatologist, Dr. Mitch Twinning, who examined Employee on May 24, 2006, and diagnosed him with rheumatoid arthritis.  Employee continued treatment with Dr. Lawless for this disease until June 2006.

On December 1, 2006, Dr. Michael Bohan, an orthopaedic specialist, began treating Employee and reported that x-ray data of the left shoulder “show[ed] rather significant degenerative arthritis of the glenohumeral joint as well as the AC joint.”  Employee eventually underwent surgery on his left shoulder, and on November 21, 2008, Dr. Bohan issued a letter to Employee’s attorney stating:

I do believe within a reasonable degree of medical certainty that these repetitive work activities over the years of his shoulders [sic] have resulted in his severe osteoarthritis of both shoulders.

(emphasis added).

Seeking independent verification of Employee’s claim, Employer engaged Dr. Chris Tountas, a specialist in the treatment of arthritis, to perform a medical evaluation of Employee.  Dr. Tountas opined:

Based on the history, physical examination, objective findings, and review of available records, it is my opinion that [Employee] has had a long history of arthritis involving multiple joints with diagnosis of rheumatoid arthritis . . . . There is no indication from the job description or his employment that would relate any of his shoulder problems to his work driving a road grader.  In my opinion this is a natural progression of a preexisting condition.  The preexisting condition in my opinion would ultimately result in a need for treatment and the recent surgery.

(emphasis added).

The Commission denied Employee’s claim on the grounds that “the greater weight of the medical evidence reflects [Employee’s] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County.”  In reaching this conclusion, the Commission considered all of the medical evidence including Dr. Tountas’s report.  Employee disputes the admissibility of Dr. Tountas’s report under South Carolina Code section 42-1-172 because it was not stated “to a reasonable degree of medical certainty.”  Employee argues that without this evidence, the remaining competent evidence would support Employee’s claim of sustaining a compensable repetitive trauma injury.

ISSUES

I.   Whether section 42-1-172(C) governs the admissibility of evidence in a workers’ compensation claim.

II.  Whether the Commission properly construed and applied section 42-1-172 in admitting Dr. Tountas’s statement.

STANDARD OF REVIEW

The South Carolina Administrative Procedure Act (APA) governs appeals from the decisions of the Commission.  S.C. Code Ann. § 1-23-380 (Supp. 2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 134–35, 276 S.E.2d 304, 306 (1981).  Under the APA, an appellate court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but it may reverse when the decision is affected by an error of law.  S.C. Code Ann. § 1-23-380(5).

ANALYSIS

                           I.  Admissibility of Evidence under section 42-1-172

Employer contends that South Carolina Code section 42-1-172 does not govern the admissibility of evidence in a workers’ compensation claim involving a repetitive trauma injury.  S.C. Code Ann. § 42-1-172 (Supp. 2010).  We disagree.

Specifically, Employer argues that admissibility of evidence in this case is governed solely by section 1-23-330, which provides that “in contested cases . . . [i]rrelevant, immaterial or unduly repetitious evidence shall be excluded.”  S.C. Code Ann. § 1-23-330 (2005).  However, Employer cites no supporting authorities for this interpretation.

In our view, section 1-23-330 establishes a minimum standard that applies generally, but not exclusively.  On the other hand, section 42-1-172(C) expressly creates an additional heightened standard for repetitive trauma injury cases.  Specifically, it requires “medical evidence,” in the form of “expert opinion or testimony [to be] stated to a reasonable degree of medical certainty.”  S.C. Code Ann. § 42-1-172(C).  Indeed, section 42-1-172(C) commands that the “[c]ompensability of a repetitive trauma injury must be determined only under the provisions of this statute.”  Id. (emphasis added); see also Murphy v. Corning, 393 S.C. 77, 84, 710 S.E.2d 454, 458 (Ct. App. 2011) (“[T]he compensability of a repetitive trauma injury must be determined by the Commission under the provisions of [section] 42-1-172 . . . . [and] the Commission erred by failing to address [section] 42-1-172.”).

Thus, in repetitive trauma injury cases such as this, section 42-1-172 governs the admissibility of medical evidence.

   II.  Commission’s Construction and Application of section 42-1-172

Employee argues that the Commission incorrectly construed section 42-1-172 by admitting Dr. Tountas’s medical evidence, as it was not stated “to a reasonable degree of medical certainty.”[3]  We agree.

Section 42-1-172 provides:

An injury is not considered a compensable repetitive trauma injury unless a commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection that is established by medical evidence . . . . As used in this section, “medical evidence” means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.

S.C. Code Ann. § 42-1-172.

It is clear the plain reading of the statute requires that “opinion or testimony” must be “stated to a reasonable degree of medical certainty.”  Id.  In contrast, “documents, records, or other material” is not similarly modified.  Id.  As this Court has recognized, the “use of the word ‘or’ in a statute ‘is a disjunctive particle that marks an alternative.'”  K & A Acquisition Group, LLC v. Island Pointe, LLC, 383 S.C. 563, 580, 682 S.E.2d 252, 261 (2009).  Here, the legislature intentionally used “or” after a series of commas to expand the definition of “medical evidence” beyond “opinion or testimony.”  S.C. Code Ann. § 42-1-172.  This Court has said that words should be given “their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.”  State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (citation omitted).  Because the statute does not require that “documents, records, or other material” be “stated to a reasonable degree of medical certainty,” we will not expand its plain meaning or interpolate this requirement.[4]  Id. 

Consequently, we must address whether Dr. Tountas’s statement constitutes an “opinion or testimony” that must be “stated to a reasonable degree of medical certainty.”  S.C. Code Ann. § 42-1-172.  Employer contends that Dr. Tountas’s letter represents “documents, records, or other material” that need not be stated to a reasonable degree of medical certainty. The Commission agreed with Employer and pointed out that a contrary interpretation and application of the statute would require this Court to ignore eleven years of Employee’s prior medical history and reports merely because they do not contain the magic phrase “within a reasonable degree of medical certainty.”  We note that Employee does not challenge the other admitted medical evidence, and therefore the only issue we decide here is the admissibility of Dr. Tountas’s statement.

While we recognize that medical “records” will often also contain physicians’ opinions, in this instance, Dr. Tountas was not Employee’s treating physician, and Employer specially sought out Dr. Tountas to evaluate Employee and issue a medical “opinion” to decide the compensability of Employee’s claim.  Under these facts, Dr. Tountas’s letter does not constitute “documents, records, or other material,” but is an “opinion or testimony” that must be “stated to a reasonable degree of medical certainty.”  Id. § 42-1-172.

In the alternative, Employer also argues that if Dr. Tountas’s statement constitutes an “opinion or testimony,” the requirement of section 42-1-172 applies only to claimants and not defendants.  The statutory language makes no such distinction, so we decline to adopt this forced construction.  See Sweat, 386 S.C. at 350, 688 S.E.2d at 575 (finding words should be given “their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.”) (citation omitted).

Thus, we reverse the Commission’s decision to admit Dr. Tountas’s medical opinion.

CONCLUSION

For the foregoing reasons, we reverse and remand the case to the Commission to decide whether the remaining competent evidence supports Employee’s claim of sustaining a compensable, repetitive trauma injury.

REVERSED AND REMANDED.

PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.

[1] Employee elaborated further, “I mean, it was good.  I mean, I had a steering wheel that, that I pulled to me, and I had my levers on each side.  It was right there.  I mean, it was just—it was just easy as—almost as eating ice cream.”

[2] In June 2001, Employee complained of arthritic symptoms in his arms, and Dr. Lawless’s medical report indicates he suspected Employee suffered from carpal tunnel syndrome.  In July and November 2001, Employee followed up with Dr. Lawless, again complaining of pain in his arms and hands.

[3] Specifically, the Commission concluded:

Subsection (C) merely defines what medical evidence is necessary to establish causation of a repetitive trauma claim.  This provision of the Act could not have been intended to require every medical report submitted by the parties be stated within a reasonable degree of medical certainty.

[4] Legislative history also supports this interpretation of section 42-1-172.  Had the General Assembly intended to require “documents, records, or other material” be “stated to a reasonable degree of medical certainty,” it would have left the April 4, 2007 amended and adopted Senate version of this section intact.  This version unambiguously provides:

As used in this title, “medical evidence” means expert opinion, expert testimony, documents, or other material that is offered or stated to a reasonable degree of medical certainty by a licensed health care provider.

S. 332, reprinted in 4 Senate Journal, South Carolina Regular Session, 2007, at 1662.  However, the legislature did not adopt this language.

SC Workers’ Compensation – Mandatory Mediation Update

Jan 26, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

Commission Moving Forward With Proposed Mediation Mandate

Last week, the South Carolina Workers’ Compensation Commission confirmed they will propose regulations to mandate mediation in some cases with the purpose of establishing a defined mechanism to resolve disputes without the necessity of a hearing. This measure also allows a commissioner to order the same of any disputed claim The idea was first introduced in Fall 2011 during meetings of the Mediation Committee October 28 and December 2.  To view the Proposed Mediation Regulation (Reg. 67-1801) and Forms 21, 50, 51 and 70, click here.
A related article recently published by Work Comp Central can be viewed by clicking here.
The timeline for the proposed regulations is as follows:

February 24, 2012 Regulation will be published in the State Register
March 26, 2012Deadline for any comments
March 26, 2012Called meeting of Full Commission for approval of regulation language
May 29, 2012Public hearing on regulation
May 29, 2012Called meeting of full Commission for approval
May 30, 2012Submission to General Assembly

This update provided by SC Workers’ Compensation Educational Association website posting. We acknowledge and thank the Association for their service.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former 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 how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully 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 particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private, confidential consultation. www.rjrlaw.com

SC Workers’ Compensation – Employee or Independent Contractor

Jan 26, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court case further illustrates the distinction between an “employee” as opposed to an “independent contractor.” The importance of the distinction is whether or not workers’ compensation benefits would apply. Oftentimes, employers will try to characterize an employee as an independent contractor in an attempt to avoid paying benefits. This is where an experienced workers’ compensation lawyer will have to fight to first establish jurisdiction and then pursue other benefits available under the Workers’ Compensation Act. Better be sure your lawyer knows what they are doing.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Robert Pikaart, Respondent,

v.

A & A Taxi, Inc. and South Carolina Uninsured Employers’ Fund, Appellants.

Appeal From Horry County
Larry B. Hyman, Jr., Circuit Court Judge

Opinion No. 27003
Heard April 6, 2011 – Filed July 11, 2011

AFFIRMED

Brown W. Johnson, of Clarke, Johnson, Peterson & McLean, and Samuel Thompson Brunson, both of Florence, for Appellants.

Charles Vance Leonard, of Harris & Leonard, P.A., of Myrtle Beach, for Respondent.

JUSTICE BEATTY:  A & A Taxi, Inc. and the South Carolina Workers’ Compensation Uninsured Employers’ Fund (collectively, Appellants) appeal from a circuit court order finding Robert A. Pikaart was an employee of A & A Taxi, Inc. at the time he was injured in two automobile accidents and that he was entitled to certain workers’ compensation benefits.  Appellants contend Pikaart was an independent contractor, not an employee; therefore, the South Carolina Workers’ Compensation Commission has no jurisdiction in this matter.  They further argue the circuit court improperly made findings of fact that did not bear on the limited issue of jurisdiction that was before it.  We affirm.

I.  FACTS

A & A Taxi, Inc. is a taxi company located in Myrtle Beach, South Carolina.  It was formed by Romeo A. Liriani, the company’s owner and president.

Pikaart had over twenty years of experience in the taxi business at the time this action arose.  Pikaart was involved in two unrelated automobile accidents in Horry County on October 23, 2004 and January 2, 2005 while performing errands for A & A Taxi.[1]  In April of 2005, Liriani and Pikaart parted ways.  According to Pikaart, he was terminated after he advised Liriani that he would need surgery as a result of his injuries.

Pikaart sought workers’ compensation coverage for alleged injuries he sustained to his neck, back, arms, hands, and fingers.  A & A Taxi denied responsibility for Pikaart’s claims on the basis Pikaart was an independent contractor, not an employee.  A & A Taxi did not carry workers’ compensation coverage, so the South Carolina Workers’ Compensation Uninsured Employers’ Fund was made a party to the action.

A hearing was held before a commissioner of the Workers’ Compensation Commission.  Pikaart testified that he had been employed by Liriani as A & A Taxi’s office manager at the time of his accidents.  He outlined his duties, which included the following:  making a schedule for all of the taxis; implementing a $10 dispatch fee all drivers were required to pay A & A Taxi for dispatch services, which saved the company some overhead costs; processing the trip vouchers that were submitted for every taxi; implementing a rotation system for high-paying fares and a method for selling accounts receivable to provide immediate cash flow; hiring and firing drivers for Liriani; finding independent cabs to take calls whenever A & A Taxi was fully booked; overseeing vehicle maintenance for the taxis; filling in as a dispatcher and a driver whenever needed; and communicating with insurance companies, City Hall, and others on behalf of A & A Taxi.

In contrast, Liriani testified Pikaart was “never” the manager of A & A Taxi.  Liriani stated Pikaart leased five cabs and three certificates (or medallions) from him, and that Pikaart leased two medallions from other individuals and operated all five of those cabs as his own business.  He stated Pikaart never performed any duties for him; rather, he just controlled the five cabs he leased.

The commissioner found Pikaart was not an employee of A & A Taxi, but was instead operating his own taxi business.  The commissioner concluded the Commission did not have jurisdiction over this case because no employer-employee relationship existed.  An Appellate Panel of the Commission upheld the commissioner’s order.

Upon review, the circuit court, noting it could take its own view of the preponderance of the evidence on jurisdictional matters, determined Pikaart was the manager of A & A Taxi and therefore an employee.  The circuit court stated Pikaart “ran the entire [A & A Taxi] operation and was present every day” and that his “managerial duties [were] extensive.”  The circuit court noted “it is clear [Pikaart’s] overall task was to increase revenue for the company,” and “[h]is injuries occurred when furthering the business of [A & A Taxi].”  Citing Nelson v. Yellow Cab Co., 349 S.C. 589, 564 S.E.2d 110 (2002), the circuit court found A & A Taxi exercised extensive control over Pikaart as well as the other workers.  The circuit court additionally found Pikaart was entitled to certain workers’ compensation benefits.

Appellants appealed.  Pursuant to Rule 204(b), SCACR, we certified this case from the Court of Appeals.

II.  STANDARD OF REVIEW

The Administrative Procedures Act (APA) establishes the standard for judicial review of workers’ compensation decisions.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 689 S.E.2d 615 (2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  Under the APA, this Court can reverse or modify the decision of the Commission where the substantial rights of the appellant have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence considering the record as a whole.  Pierre, 386 S.C. at 540, 689 S.E.2d at  618; Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010) (citing S.C. Code Ann. § 1-23-380(5)(d), (e) (Supp. 2009)).

An award under workers’ compensation law is not authorized unless an employer-employee relationship existed at the time of the injury for which a claim is made.  Crim v. Decorator’s Supply, 291 S.C. 193, 352 S.E.2d 520 (Ct. App. 1987); McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct. App. 1984); see also S.C. Code Ann. § 42-1-130 (Supp. 2010) (defining “employee” under workers’ compensation law to include “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written . . . .”).

The question whether a claimant is an employee or an independent contractor is a jurisdictional issue.  Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 676 S.E.2d 700 (2009); Vines v. Champion Bldg. Prods., 315 S.C. 13, 431 S.E.2d 585 (1993).  Where the disputed issue concerns jurisdiction, this Court may take its own view of the preponderance of the facts upon which jurisdiction is dependent.  Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994); Spivey v. D.G. Constr. Co., 321 S.C. 19, 467 S.E.2d 117 (Ct. App. 1996).

It is South Carolina’s policy to resolve jurisdictional questions in favor of inclusion of employees within workers’ compensation coverage rather than exclusion.  Shuler v. Tri-County Elec. Co-op, 385 S.C. 470, 684 S.E.2d 765 (2009); Hill v. Eagle Motor Lines, 373 S.C. 422, 645 S.E.2d 424 (2007); Pilgrim v. Eaton, 391 S.C. 38, 703 S.E.2d 241 (Ct. App. 2010).

Although we may take our own view of the preponderance of the evidence on matters affecting jurisdiction, this broader scope of review does not require this Court to ignore the findings of the Commission, which was in a better position to evaluate the credibility of the witnesses.  Paschal v. Price, Op. No. 26958 (S.C. Sup. Ct. filed Apr. 4, 2011) (Shearouse Adv. Sh. No. 12 at 44); Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000).

III.  LAW/ANALYSIS

On appeal, Appellants contend the circuit court erred in (1) finding Pikaart was an employee of A & A Taxi, rather than an independent contractor, and (2) making findings of fact numbered one through nine because they do not relate to the limited issue of jurisdiction that was before the court.

A.      Employee Versus Independent Contractor    

Under South Carolina law, the primary consideration in determining whether an employer-employee relationship exists is whether the purported employer has the right to control the employee in the performance of the work and the manner in which it is done. Kilgore Group, Inc. v. South Carolina Employment Sec. Comm’n, 313 S.C. 65, 437 S.E.2d 48 (1993).  “The test is not the actual control exercised, but whether there exists the right and authority to control and direct the particular work or undertaking.”  Id. at 68, 437 S.E.2d at 49.[2]

The four principal factors indicating the right of control are (1) direct evidence of the right to, or exercise of, control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire.  South Carolina Workers’ Comp. Comm’n v. Ray Covington Realtors, Inc., 318 S.C. 546, 459 S.E.2d 302 (1995); Chavis v. Watkins, 256 S.C. 30, 180 S.E.2d 648 (1971).

In Wilkinson, this Court announced a return to our jurisprudence that evaluates the four factors with equal force in both directions to provide an even-handed and balanced approach.  Wilkinson, 382 S.C. at 300, 676 S.E.2d at 702.  This overruled the analytical framework previously set forth in Dawkins v. Jordan, 341 S.C. 434, 534 S.E.2d 700 (2000) on the basis it unduly weighted the factors in a manner that favored a finding of employment by providing the existence of any single factor was virtually proof of an employment relationship, while contrary evidence as to any one factor was only mildly persuasive evidence of contractorship.  Id.

In the current matter, the circuit court found the case of Nelson v. Yellow Cab Co., 349 S.C. 589, 564 S.E.2d 110 (2002) to be controlling.  In Nelson, we considered the jurisdictional question whether a taxi driver, who had been murdered while driving his cab, was an employee or an independent contractor of Yellow Cab.  We noted there was a split of authority as to the status of a taxi driver who leases a taxi under a per diem payment agreement and keeps his fares and tips as compensation, but observed that the majority of cases hold that under such circumstances the taxi driver is an employee by virtue of the cab company’s exercise of control.  Id. at 595, 564 S.E.2d at 113.

Wilkinson expressly overruled Nelson to the extent it applied the Dawkins test, but this does not alter the fundamental principle established in Nelson regarding the taxi driver’s employment status.  Although the Nelson Court recited the Dawkins test, as a practical matter, it did not rely upon the presence of only one factor as being determinative of an employment relationship.  Rather, it considered in detail all four factors and found by a preponderance of the evidence that these factors, on balance, were indicative of an employment relationship.  Therefore, the result in Nelson would be the same under the approach announced in Wilkinson.

Similarly, in the current appeal, the circuit court recited the Dawkins test in passing,[3] but it did not rely upon the presence of only one factor.  Instead, the court evaluated all four factors before finding, by a preponderance of the evidence, that an employment relationship existed between Pikaart and A & A Taxi.

Pikaart maintains that “[i]t is clear when considering the Nelson factors, even when using the approach approved in [Wilkinson], that [he] was an employee of [A & A Taxi] and the decision of the Circuit Court should be affirmed.”  We agree.

Appellants note in their brief that a number of former drivers testified that Pikaart was the general manager of A & A Taxi and also testified about the degree of control A & A Taxi exerted over them.  Appellants concede:  “If one of those drivers had been injured, it is clear that under the Nelson case, they would have been considered employees.”  Nevertheless, Appellants argue “those drivers’ positions at A & A Taxi, Inc. differed from that of the Claimant, Robert Pikaart.”

Appellants deny that Pikaart was ever A & A Taxi’s manager, but argue that, even if he was the manager, “he was not injured in that role.  He was allegedly injured while driving a cab.”  The fact that Pikaart was employed as the company’s manager (which included duties such as driving a taxi and performing dispatching services when needed), as opposed to being employed solely as a taxi driver, does not negate his status as an employee, and Appellants have pointed to no specific evidence to support its assertion that being a manager somehow invalidated his employment status.

Appellants further contend Pikaart was merely leasing five cabs from Liriani and operated those cabs for his own independent business.  As in Nelson, the fact that Pikaart leased his cabs from A & A Taxi and split the fares with A & A Taxi to receive compensation is typical for the industry and is not determinative that he ran his own taxi company within Liriani’s taxi company.  As noted in Nelson, the majority of jurisdictions considering the question have held that such an arrangement constitutes an employment, not an independent contractor, arrangement.  It is clear from the record, and Appellants conceded as much at oral argument, that Pikaart did perform tasks for the benefit of, and on behalf of, A & A Taxi, not strictly for himself.  Further, Pikaart took nothing with him when he parted ways with A & A Taxi, and there is no evidence he operated his own independent business.

Appellants next assert that Pikaart has started his own cab company, Red Top Cabs, since parting ways with A & A Taxi.  However, Pikaart’s activities after leaving A & A Taxi are not relevant to Pikaart’s employment status at the time of the accidents at issue here.

Appellants also state Pikaart has been in the taxi business for over twenty years and during that time he never purchased workers’ compensation insurance for his drivers, but he now wants compensation for himself.  This point likewise is not relevant to the jurisdictional question of whether Pikaart was an employee or an independent contractor with A & A Taxi at the time of his accidents.  Appellants contend this information goes to credibility.  But by the same token, Liriani admittedly has never provided workers’ compensation coverage to anyone working for him, either, so he is in the same position as Pikaart in this regard.

Although Appellants did not individually address the four factors, we now examine some of the pertinent evidence as it relates to the four individual factors in evaluating the right of control.

(1)  Direct Evidence of the Right to Control

The circuit court noted the workers at A & A Taxi needed advance permission to be taken off of the work schedule, they were not allowed to give out their own phone numbers for business, and all calls were required to go through the dispatcher.

Pikaart, in particular, testified that Liriani required all calls to go through the dispatcher, and he was not allowed to give out his own cell phone number, name, or business card.  Liriani controlled the advertising and provided business cards for the workers to use.  Further, workers were expected to respond to the dispatcher when called and to make trips as directed.  Pikaart said that he would call the dispatcher if he were out of the cab for any reason, such as to get something to eat or use the restroom.

Pikaart primarily performed managerial tasks for Liriani and A & A Taxi, but he also filled in as a dispatcher and he drove cabs when needed.   In fact, both of the accidents he is seeking compensation for occurred while he was driving vehicles owned by A & A Taxi and running errands on behalf of the company.  Although Pikaart had some discretion as manager and, in fact, came up with several business concepts for the company, such as the $10 dispatch fee, it is clear from the record that these were all in furtherance of A & A Taxi’s business, and Pikaart did not implement any substantial changes without Liriani’s consent.  We find this factor weighs in favor of an employment relationship.

(2)  Furnishing of Equipment

The circuit court found A & A Taxi furnished the cabs, provided maintenance, and also procured insurance and permits for all cars.  It also advertised the company’s services and provided business cards and dispatching services, as well as a common paint scheme with the “A & A Taxi” name on all of the cabs.  The circuit court noted A & A Taxi also provided a phone number, customers, vouchers, and rules to abide by, and drivers were not allowed to give out personal business cards or contact numbers.

These findings are all supported by the record, as the former workers with A & A Taxi testified that the company provided most of the necessary equipment and services.  As to Pikaart in particular, he testified that he did not own the dispatch service and equipment, phone numbers, cabs, or anything else while he was working for A & A Taxi, and he took nothing with him when he left.  He further testified that Liriani purchased the city business license.  We find this factor weighs heavily in favor of finding an employment relationship.

(3)  Method of Payment

The circuit court found the drivers in this case were allowed to keep fifty percent of their fares, which was similar to the situation inNelson.  The circuit court noted Pikaart received payment much the same as the employee in Nelson, except that he derived his income from five cabs, rather than from one, and he paid a weekly rate to the employer instead of a daily rate.  The circuit court specifically found that Pikaart was not operating his own business within the A & A Taxi business.

Pikaart testified that he was never given a W-2 form or a Form 1099 when he worked at A & A Taxi.  However, he said he listed A & A Taxi as his employer on his tax returns.  Further, Pikaart testified that he “derived all of [his] living from A&A Taxi.”  Liriani confirmed that he never provided Pikaart with either a W-2 form or a Form 1099.

The parties operated primarily on a cash basis, and it appears this was intended to avoid reporting requirements on both sides.  Due to the lack of records in this regard, the evidence does not preponderate in favor of either party and we consider this a neutral factor.

(4)  Right to Fire

As noted by the circuit court, several of the witnesses testified that those working at A & A Taxi could be fired for a variety of reasons.  For example, Charles Michael Clark, a former driver and dispatcher for A & A Taxi, testified that he had been terminated by Liriani.  Clark stated workers could be terminated for a variety of reasons, including failing to pick up a customer or not showing up, drinking on the job, having too many wrecks, making a false application, carrying a weapon, stealing, or cheating on trip sheets, etc.

Pikaart testified that he was fired after he told Liriani that he would need surgery as a result of his accidents.  Pikaart stated Liriani would sometimes fire people, but would on occasion direct him or a dispatcher to do the firing.

Upon questioning, Liriani adamantly denied that he could terminate any of the workers at A & A Taxi.  He was asked if he could terminate them under various extreme scenarios, such as if they didn’t show up for work ten days in a row, or if they had ten wrecks in a row, and he said “absolutely not.”  Liriani even stated that if one of the drivers “blows up the Myrtle Beach Convention Center” (his example), he still could not fire them, but would “report them to the police department.”  This testimony reflects adversely upon Liriani’s credibility.  We find this factor also weighs heavily in favor of finding an employment relationship existed.

Based on the foregoing, we hold the circuit court correctly considered the jurisdictional facts and found, by a preponderance of the evidence, that Pikaart was the general manager of A & A Taxi and thus, its employee.  Accordingly, the circuit court’s determination in this regard is affirmed.

B.      Additional Findings of Fact

Appellants next contend that, even if this Court agrees with the circuit court’s determination that Pikaart was an employee, the circuit court committed “obvious error” by making additional findings of fact regarding the benefits to which Pikaart is entitled.  Appellants state these findings encompassed such matters as the compensability of Pikaart’s claims, his average weekly wage, the dates for which he was to receive benefits, and his entitlement to additional medical care.

Appellants state the Commission never reached the issue of benefits because it found it had no jurisdiction.  Appellants assert these findings go beyond the limited jurisdictional issue presented on appeal, i.e., whether an employer-employee relationship existed, and the circuit court lacks the authority to make its own findings of fact on issues not related to jurisdiction.  Instead, such issues should have been remanded to the Commission.

Although the circuit court committed error for the reasons stated by Appellants, there is no indication in the record that Appellants ever presented this argument to the circuit court to allow it the opportunity to amend its ruling.  Thus, any error was not preserved and it is not properly before this Court.

A matter may not be presented for the first time on appeal; rather, it must have been both raised to and ruled upon by the court below.  Wilder Corp. v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998).

Although Rule 59(e), SCRCP motions are not applicable in matters before the Commission itself,^[4] such motions are applicable when the circuit court sits in an appellate capacity, and they are required to preserve an issue for review by the Court of Appeals or this Court.  See Shealy, 341 S.C. at 460, 535 S.E.2d at 444 (holding, in a workers’ compensation case, that the alleged error was not preserved for appellate review where the circuit court did not rule on the issue and no Rule 59(e), SCRCP motion was made);Leviner v. Sonoco Prods. Co., 339 S.C. 492, 530 S.E.2d 127 (2000) (observing neither party filed a timely motion under Rule 59(e), SCRCP seeking clarification of the circuit court’s order in an appeal from the Commission); see also Hill v. South Carolina Dep’t. of Health & Envt’l Control, 389 S.C. 1, 698 S.E.2d 612 (2010) (stating Rule 59(e), SCRCP motions are necessary to preserve issues not ruled upon for review when the circuit court sits in an appellate capacity (citing City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007)).

IV.  CONCLUSION

Because the issue on appeal concerns jurisdiction, i.e., whether an employer-employee relationship existed, this Court may take its own view of the preponderance of the evidence.  We hold the facts in this case preponderate in favor of a finding that Pikaart was the general manager of A & A Taxi and, thus, was an employee subject to the jurisdiction of the Commission.  To the extent Appellants contend the circuit court erred in making additional findings of fact that were not related to jurisdiction, we hold this issue is not properly before this Court on appeal as it was not preserved.  Consequently, we affirm the circuit court’s order in full.

AFFIRMED.

TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.

[1]  The first accident occurred when Pikaart used a taxi to pick up a driver who had no transportation to work.  The taxi was struck from behind while waiting at a red light.  The second accident occurred after Pikaart had driven to a repair shop to check on the status of a mechanical problem with another taxi.  Before leaving the shop, Pikaart called a dispatcher to inquire whether they needed any assistance, and he was directed to pick up a paying passenger in Socastee.  Pikaart was on his way to pick up the fare when a driver in another car ran a stop sign, and the two collided.  A & A Taxi owned the taxis involved in both accidents.

[2]  In Kilgore, we observed that “[u]nder the South Carolina Employment Security Law, employment is defined to include ‘any service performed by any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee . . . .'”  Kilgore, 313 S.C. at 68, 437 S.E.2d at 49 (quoting S.C. Code Ann. § 41-27-230(1)(b) (1986)).  In this case, the Employment Security Commission ruled Pikaart was an employee of A & A Taxi.

[3]  Wilkinson was published only a couple of days prior to the date the circuit court’s order was signed.

[4]  Stone v. Roadway Express, 367 S.C. 575, 582, 627 S.E.2d 695, 699 (2006) (“Rule 59(e) is not applicable in proceedings before the commission.”); Nettles v. Spartanburg Sch. Dist. #7, 341 S.C. 580, 535 S.E.2d 146 (Ct. App. 2000) (stating workers’ compensation law does not contain a motion to reconsider; rather, a party must appeal).