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).

SC Workers’ Compensation – Occupational Disease Claims

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

This recent SC Supreme Court case discusses the interplay between the three (3) permanent disability statutes. Once released from care, a treating physician will assign an “impairment rating.” These ratings, in conjunction with a claimant’s age, education, prior work history, future medical care, and/or  permanent work restrictions, will be considered by the Workers’ Compensation Commission to determine “disability.” If a particular body part is affected, Section 42-9-30 will be used to assess an award. If more than one body part is affected or, in this case, an “occupational disease” claim, the general disability statutes would apply. However, a claimant must be able to show “wage loss.” As you can see, these statutes can be rather confusing, and the burden of proof for all elements is always on the claimant. Better make sure your attorney is experienced in workers’ compensation cases and knows what he/she is doing.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Thomas E. Skinner, Employee, Respondent,

v.

Westinghouse Electric Corporation, Employer, and Viacom, Carrier, Defendants,

Of Whom Westinghouse Electric Corporation is, Appellant.

Appeal From Richland County
Walter H. Sanders, Jr., Special Referee

Opinion No. 27037
Heard May 25, 2011 – Filed September 6, 2011

REVERSED

R. Daniel Addison, Hedrick Gardner Kincheloe & Garofalo, L.L.P., of Columbia, Shay Dvoretzky and Craig I. Chosiad, of Jones Day, of Washington, D.C. for Appellant.

Jeffrey T. Eddy, of Charleston, for Respondent.

JUSTICE HEARN: Thomas Skinner received an award of benefits from the Workers’ Compensation Commission for his asbestosis under the scheduled loss provisions of Section 42-9-30 of the South Carolina Code (1976 & Supp. 2009).  Westinghouse Electric Corporation, Skinner’s former employer, appeals that decision, arguing Skinner cannot recover for a scheduled loss and must proceed under the “general disability” statutes found in Sections 42-9-10 and 42-9-20 of the South Carolina Code (1976 & Supp. 2009).  We agree and reverse.

FACTUAL/PROCEDURAL BACKGROUND

Skinner began working for Westinghouse in 1968 and spent nearly fifteen years performing several different jobs in its Hampton, South Carolina plant.  During the course of his employment, Skinner was regularly exposed to and breathed in asbestos dust contained in the insulation products produced at the plant as well as other toxic chemicals.  In addition to his work with Westinghouse, Skinner joined the South Carolina Army National Guard as a reservist in 1969, attending one drill weekend a month and two drill weeks in the summer each year.  Furthermore, he worked in the “property book” section of the National Guard, keeping accounting records of government-owned property.

In 1983, Skinner left Westinghouse on his own accord, not because of any condition, medical or otherwise, and began working full-time with the National Guard.  His salary with the National Guard was over $44,000 per year, which was more than he was making at Westinghouse.  He held that position until 1990, when he became a unit administrator for the Bamberg unit.  As of 2005, he was still working full-time with the National Guard as an administrator for the Hampton unit.[1]

Skinner began having noticeable breathing problems while he was employed at Westinghouse.  His breathing problems became more pronounced in the early 1990s, when he was working full-time with the National Guard.  At that time, an army doctor diagnosed him with chronic obstructive pulmonary disease (COPD).  Skinner continued to have breathing problems, and a pulmonary function test performed in 1998 showed a worsening of his lung function.  Dr. Cary E. Fechter, a board-certified pulmonary and critical care medicine specialist, evaluated Skinner in 2003 and diagnosed him with asbestosis, occupational bronchitis, severe sleep apnea, and sinusitis.  Additionally, medical records for the hospital where Skinner received his general medical care stated he had COPD and asbestosis in both lungs.

Skinner filed a claim against Westinghouse with the South Carolina Workers’ Compensation Commission in 2004, alleging he suffered an accidental injury to his lungs and whole body in 2003, caused by chronic inhalation of asbestos fibers, chemical fumes, and other injurious airborne contaminants.  Skinner claimed this injury led to partial general disability and partial specific disability.  Although Skinner was the only witness to testify at the hearing, the parties submitted the depositions of several doctors, including Dr. Fechter who claimed Skinner had a combined impairment of 64% of the whole person.

The Commissioner found Skinner suffered from an occupational disease and an injury by accident, was partially disabled, and was able to recover under section 42-9-30.  Accordingly, the Commissioner awarded Skinner a lump sum amount of $119,159.66.  Westinghouse appealed this decision to the Appellate Panel of the Commission, which affirmed the Commissioner’s order.  Westinghouse then appealed to the circuit court, which dismissed the appeal for lack of subject matter jurisdiction.  This Court reversed that decision and remanded the appeal back to the circuit court. See Skinner v. Westinghouse Elec. Corp., 380 S.C. 91, 97, 668 S.E.2d 795, 798 (2008).  The circuit court referred the matter to a special referee, who held a hearing and summarily affirmed the Commission’s findings.  This appeal followed.

ISSUES PRESENTED

Westinghouse raises two issues on appeal:

LAW/ANALYSIS

Westinghouse’s arguments on appeal concern the impact of section 42-11-60 on Skinner’s right to recover for his pulmonary disease.  In particular, it argues Skinner can only recover for total or partial disability under sections 42-9-10 and 42-9-20, respectively.  Westinghouse therefore contends the Commissioner erred in finding Skinner’s injuries to be compensable as a scheduled loss under section 42-9-30.  Our review is limited to deciding whether the Commission’s decision is unsupported by substantial evidence or is controlled by some error of law. See S.C. Code Ann. § 1-23-380(5)(d) (Supp. 2010); Rodriguez v. Romero, 363 S.C. 80, 84, 610 S.E.2d 488, 490 (2005).  We agree with Westinghouse.

Section 42-11-10(D) of the South Carolina Code (1985) generally allows for compensation to be paid to an employee with an occupational disease who suffers from a disability under sections 42-9-10, 42-9-20, or 42-9-30.  Section 42-11-10(B)(5) of the South Carolina Code (Supp. 2010) exempts from the definition of occupational disease “any disease of the cardiac, pulmonary, or circulatory system.”  However, this subsection also contains an exception to this exception applicable to Skinner’s claim: if the pulmonary disease results from “the natural entrance into the body through the skin or natural orifices thereof of foreign organic or inorganic matter under circumstances peculiar to the employment and the processes utilized therein,” then it is an occupational disease. Id. (emphasis added).  In Skinner’s case, his asbestosis was caused by the inhalation of asbestos dust.  It is undisputed that asbestos dust was prevalent in his work conditions at Westinghouse due to the particular products it manufactured, and thus, it was peculiar to his employment.  Therefore, Skinner’s asbestosis is an occupational disease under the statute.

However, “[n]o compensation shall be payable for any pulmonary disease arising out of the inhalation of organic or inorganic dust or fumes unless the claimant suffers disability as described in § 42-9-10 or § 42-9-20 and shall not be compensable under § 42-9-30.” Id. § 42-11-60 (1985).  Because section 42-11-60 is the specific statute governing compensability for pulmonary disease, it controls over the more general language of 42-11-10(D). See Langley v. Pierce, 313 S.C. 401, 403, 438 S.E.2d 242, 243 (1993) (citing Lloyd v. Lloyd, 295 S.C. 55, 57-58, 367 S.E.2d 153, 155 (1988)) (“Generally, specific laws prevail over general laws and later legislation takes precedence over earlier legislation.”).  It is uncontested that COPD and asbestosis are pulmonary diseases.  Therefore, in order for Skinner to be compensated, he must proceed under sections 42-9-10 or 42-9-20, not section 42-9-30.

Sections 42-9-10 and 42-9-20 are commonly known as the “general disability statutes,” with section 42-9-10 governing total disability and section 42-9-20 governing partial disability.  Both parties concede that Skinner’s claim falls under the partial disability statute.  Under section 42-9-20, lost wages must be shown in order to receive compensation. S.C. Code Ann. § 42-9-20 (1985) (stating that an employee with partial disability receives “a weekly compensation equal to sixty-six and two-thirds percent of thedifference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the average weekly wage in this State for the preceding fiscal year”) (emphasis added).  “It is well-settled that an award under the general disability statutes must be predicated upon a showing of a loss of earning capacity, whereas an award under the scheduled loss statute does not require such a showing.” Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990) (citing Roper v. Kimbrell’s of Greenville, Inc., 231 S.C. 453, 461, 99 S.E.2d 52, 56-57 (1957)).

Without question, Skinner has established that he suffers from an occupational disease.   However, because his asbestosis is a pulmonary disease, it is not compensable under section 42-9-30, and is only compensable under section 42-9-20, which requires a showing of lost wages.  Skinner’s workers compensation claim fails because he cannot establish any lost wages occasioned by his asbestosis.  In fact, the only evidence of Skinner’s wages established that he was making more money with the National Guard than he did when he was employed by Westinghouse.  Because he is unable to prove lost wages, we find that Skinner cannot recover under section 42-9-20, and as a result, does not have a compensable occupational disease.

CONCLUSION

We reverse the special referee’s affirmance of Skinner’s award based upon the clear language of section 42-11-60.  In that section, the General Assembly specified that recovery for a pulmonary disease such as Skinner’s hinges upon a showing of lost wages under section 42-9-10 and 42-9-20.  Because our resolution of this issue is dispositive of the appeal, it is not necessary for us to address the remaining issues raised by the parties. See Futch v. McAlister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (determining that once an appellate court has addressed an issue that is dispositive to the case, it is unnecessary to address any remaining issues).

REVERSED.                         

PLEICONES, ACTING CHIEF JUSTICE, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1]Under the National Guard’s rules, Skinner would reach his mandatory retirement age in September 2006.  We assume that he retired as planned at that time.