Jan 7, 2014 | Uncategorized, Workers' Compensation
The Plaintiff Rodriguez was employed to perform labor for Defendant Romero, who was a subcontractor. During the installation of a new roof (June 27, 2000), Rodriguez fell through a skylight opening, suffering serious 
injuries. What is undisputed is the fact that Mr. Rodriguez is entitled to workers compensation.
However, the question still exists as to what insurance carrier is responsible. The subcontractor, in this case, had purchased insurance, but it was cancelled for non-payment. Another policy, with INSCORP, was issued on June 22, 2000 with an effective date to May 19, 2000. However, in the meantime, the company obtained an assigned risk insurer (ARI) policy under S.C. Code Ann. 38-73-540 from appellee, Capital City Ins Co., effective June 24, 2000.
Capital City was not apprised of the information that INSCORP had provided voluntary coverage, but nevertheless ruled that Capital City was responsible due to a most recent effective date of June 24, 2000. The circuit court reversed and found INSCORP was the responsible carrier.
On appeal, the court held that since Capital City’s policy was never effective, the dual coverage provisions of 25A S.C. Code Ann. Regs. 67-409 were not applicable. That left INSCORP as the solely responsible carrier on the claim.
If you have been injured in a work accident, it is important to ensure who the carrier, who will pay your claim, who is responsible. This is something that could potentially cause some dispute (in this case, the dispute), and can cost unnecessary money if not taken care of properly. If you or a loved one has been involved in a workers compensation claim, contact the law offices of Reeves, Aiken & Hightower at 803-548-4444, for a confidential consultation.
Apr 8, 2013 | Uncategorized, Workers' Compensation
Chapter 11 of the Workers’ Compensation Act addresses the various occupational diseases. An “occupational disease” is defined as the following:
“a disease arising out of and in the course of employment which is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of continuous exposure to the normal working conditions of that particular trade, process, occupation, or employment.”
Often, there is no single incident to attribute the injury to; consequently, the South Carolina Legislature distinguished occupational diseases from injuries by accident, and has dedicated a chapter in the code to such diseases. In many respects, occupational diseases resemble injuries by accident.
The six elements of occupational disease claims are as follows:
- A disease;
- The disease must arise out of and in the course of the claimant’s employment;
- The disease must be due to hazards in excess of those hazards that are ordinarily incident to employment;
- The disease must be peculiar to the occupation in which the claimant was engaged;
- The hazard causing the disease must be one recognized as peculiar to a particular trade, process, occupation, or employment; and
- The disease must directly result from the claimant’s continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment.
Next, there are certain impairments that are not categorized under occupational diseases. A disease will not be considered an occupational disease when:
- It does not result directly and naturally from exposure in this State to the hazards of peculiar to the particular employment;
- It results from exposure to outside climatic conditions;
- It is a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside his employment;
- It is one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and natural incident of an occupational disease or unless there is a constant exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation;
- It is any disease of the cardiac, pulmonary or circulatory system not resulting directly from abnormal external gaseous pressure exerted upon the body or the natural entrance into the body through skin or natural orifices thereof or foreign organic or inorganic matter under the circumstances peculiar to the employment and the processes utilized therein; or
- It is any chronic disease of the skeletal joints.
Because it is so easy to confuse what constitutes an occupational disease, it is important to retain competent representation to help define what your condition is under South Carolina law. At Reeves, Aiken & Hightower, LLP, we have handled many workers compensation cases, and we understand how these conditions are to be defined. For a consultation, visit us at our Baxter Village office in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999. We will be happy to assist you.
Apr 2, 2013 | Uncategorized, Workers' Compensation
One man has died, and two have been injured in a York County, South Carolina paper plant accident which occurred around 1:30 a.m. last Tuesday at the Resolute Forest Products plant in Catawba. The men were doing maintenance on an old decommissioned tank outside of the main production area.
Investigators think that a chemical leaked into a tank that the men were working on. Two of the men were barely able to escape, and the third man died in the tank. One of the injured men were taken to the hospital and treated for his injuries. A further investigation will take place with the Occupational Safety and Health Administration (OSHA), and York County will assist with the investigation.
This is not the first time the paper mill has experienced an accident as a result of a chemical leak. Last May, one man was seriously burned, and three others were injured in a chemical leak. Resolute Forest Products employs about 700 people and makes commercial printing papers and market pulp.
If you or a loved one has been injured in a work-related accident, make sure that your employer is compensating you sufficiently. For a consultation, call the law offices of Reeves, Aiken & Hightower, LLP at 803-548-4444, or toll free at 877-374-5999.
Apr 1, 2013 | Uncategorized, Workers' Compensation
A South Carolina worker has been killed as a result of a workplace accident which caused him to fall into a stamping machine, at a manufacturing plant. The 60-year-old man was working on the machine in Williamston, SC when he lost control of where he was standing, falling into the machine.
According to the Stanco Metal Products plant manager, the machine did have safety features attached. However, it is unknown whether the mechanics were working at the time of the accident. The question is why the safety features did not activate when the man was so close to the machine. OSHA will make the determination as to whether the safety features were operating properly.
This is not the first accident at the South Carolina plant. In 2007, a worker fell from a scissor lift as he was working on the power lines. The company was fined for this circumstance.
In South Carolina, workers’ compensation is contained in the insurance policy your employer must carry in order to ensure that the employees injured at work can obtain necessary medical treatment and needed financial help in the time after an injury has occurred. Further, by law, every South Carolina employer with four or more full-time employees must have workers compensation insurance.
If you or a loved one has suffered a work related injury, contact the law offices of Reeves, Aiken & Hightower, LLP. To schedule a consultation, call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Mar 12, 2013 | Uncategorized, Workers' Compensation
FACTS:
Palmetto Hardwood, Inc. is a South Carolina corporation that employed the Petitioner. Through his employment with Palmetto Hardwood, Inc, the Petitioner had suffered three work related injuries: the first two incidents involved an injury to the man’s back, and the third involved a shard of metal flying from a gang saw and striking the man in the head. The Workers’ Compensation Commission found that the man had suffered an injury that was compensable, and found him to be totally and permanently disabled.
The Commission found that the man was to receive five hundred weeks of compensation as a result of his total disability, and metal expenses related to the three injuries. The case went up for appeal, and they asked the Commission to (1) explain whether the physical brain injury it found bordered on the frivolous was intended to be the same as or different from physical brain damage as used in S.C. Code Ann. § 42-9-10(C) and (2). They argued that it was contradictory for the court to find the man suffered a “compensable injury to the head” with a finding of “no physical brain injury.” Further, on remand, the Commission clarified that the claimant has failed to carry his burden of proof to establish physical brain damage as contemplated by S.C. Code Ann. § 42-9-10. However, on appeal the circuit court affirmed the Commission’s order. Petitioner then appealed to the Court of Appeals.
DISCUSSION AND HOLDING:
The interpretation of a statute is a question of law. So, if the construction of a statute by the agency that whose duty it is to carry out it’s administration, that agency will be afforded the most respectful consideration. However, if the agency’s reading of the statute conflicts with the plain language thereof, it must be rejected. CFRE, LLC v. Greenville County Assessor, 395 S.C. 67, 74.
The idea behind the rule of statutory construction is to “ascertain and effectuate the intent of the Legislature.” Gilstrap v. South Carolina Budget and Control Bd., 310 S.C. 210, 213. Further, “a statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers. When interpreting a statute, the language must be read in a sense that harmonizes with its subject matter and accords with its general purpose.” Id.
S.C. Code Ann. § 42-9-10(C) reads as follows:
“Notwithstanding the five-hundred-week limitation prescribed in this section or elsewhere in this title, 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 term physical brain damage is the term at issue here. The term suggests that the General Assembly intended a more restrictive meaning than the most literal interpretation as proposed by the Petitioner here. The Statute awards lifetime benefits for someone who is “totally disabled;” they must be permanent physical impairments. So, the General Assembly intends to give the statute consistent meaning. S.C. Code Ann. § 42-9-400(d) (Supp. 2011) used the term “brain damage” in a list of “permanent physical impairments.” This code is a bit more clearly defined than in S.C. Code Ann. 42-9-110 (d). Therefore, the court found that the General Assembly intended “physical brain damage” to have meaning consistent with 42-9-400(d); and, this interpretation is consistent with that of the Commission and thus affords proper deference to the agency.
Section 42-9-10(c) also requires that the injury be “physical,” which means “of or pertaining to the body, as distinguished from the mind or spirit; bodily” and “of or pertaining to material things.” American Heritage Dictionary 935 (2nd College Ed. 1991). There is nothing in the statute that suggests that this word should be interpreted otherwise, so in this case there is no dispute that Petitioner suffered at lease a mild concussion, by definition a physical injury to the brain.
Petitioner also argues that the General Assembly’s use of the verb phrase “has suffered” indicates that the injury need not result in permanent damage, since this form of the verb requires no more than that the action. The court, however, disagreed with this interpretation. They suppose that the term must signify that the action occurred in the past but has continuing effects in the present.
Therefore, the court concluded that the term “physical brain damage” as used in § 42-9-10(C) is physical brain damage that is both permanent and severe. And, the statute does not require total and permanent disability, but does require that the claimant suffer physical brain damage as a result of the compensable injury. So, it must be more than a mere concussion, which by definition does not have lasting effects. If it does have lasting effects, it may be considered compensable. The judgment of the Court of Appeals is Affirmed.
If you or someone you know has suffered a work related injury and may be permanently disabled as a result, call the law offices of Reeves, Aiken & Hightower, LLP for a consultation. If you have questions feel free to call our Baxter Village office in Fort Mill, South Carolina at 803-548-4444, or toll free at 877-374-5999.
Mar 7, 2013 | Uncategorized, Workers' Compensation
Worker’s Compensation has been a hot topic in recent South Carolina cases due to ever-changing laws constantly altering how an injured employee may be compensated when injured “on the job.”
Take, for example, Simmons v. SC STRONG, in which the Appellant is arguing that the South Carolina’s Worker’s Compensation Commission (hereafter referred to as “Appellate Panel”) erred when it failed to find that Simmons was an employee of the SC STRONG.
The SC STRONG program is a residential, non-profit South Carolina program, in which “former substance abusers, homeless adults, and ex-convicts” are afforded educational and vocational opportunities to “get back in their feet.” Simmons became a member of SC STRONG in May of 2012, whereby he signed what is referred to as a “Resident Statement” which contained in pertinent part the following:
(1)Any remuneration which was, or in the future will be, due because of work which I have performed, or will perform, for South Carolina STRONG, I donate to South Carolina STRONG. This donation is done freely, and without duress.
(2)Any work, which I have done, or will do, for South Carolina STRONG, is done as a volunteer without any expectation of remuneration.
(3)Not withstanding paragraphs (1) and (2) above, if any governmental body determines that I am not a volunteer or cannot donate to South Carolina STRONG any remuneration which might be due to me from South Carolina STRONG, then I state that I was more than adequately paid by room, board, and services that I received from South Carolina STRONG including counseling, vocational training, entertainment, clothing, medical and dental services, education, rehabilitation, transportation, recreational and legal services, which have, and will be, provided to me by South Carolina STRONG free of charge for the duration of my time as a resident of South Carolina STRONG.” See Simmons v. SC STRONG
As a member of the SC STRONG program, Simmons was provided the opportunity to work at various construction and landscaping projects with advisers from SC STRONG. Things seemed to be looking up for Simmons until January 14, 2011, where Simmons slipped on an ice patch and fell thirty feet from the roof at the SC STRONG job-site. Simmons had multiple medical issues from the fall, specifically, a C-5 anterior superior end plate fracture and some soft tissue laceration/hematoma. The following day, Simmons was rushed back to the ER when he was complaining of foot pain and facial swelling. Simmons was provided with a type of “collar” to wear around his neck as the fractures healed, and was told that the injury was “not serious.”
A month later, on February 17, 2011, Simmons filled out a Form 50, stating his injuries while on the SC STRONG job site. He requested temporary disability benefits based on rates of the employees in similar situations.
On March 2, Hartford Underwrites Insurance Company (Hartford), SC STRONG’s insurance carrier, in turn filed a Form 51 whereby they denied Simmons as ever being one of SC STRONG’s employees. Subsequently, on March 16, Hartford amended its Form stating that Simmons did not sustain an injury that was “compensable” during the course of the alleged employment. The Respondents then filed an additional amendment further denying Simmons employment with SC STRONG.
A hearing was held on May 25, where Simmons alleged that he was provided room, board, and daily work schedules and instructions by SC STRONG; that he was in fact an employee; and that he was working for SC STRONG on January 14, when he fell from the roof. After the accident, Simmons contacted an attorney whereby he was subsequently “forced to leave SC STRONG.”
The President of SC STRONG rebutted Simmons allegations stating that “SC STRONG receives compensation for the construction services provided by its participants.” He further stated the SC STRONG model “involves a sustainable concept whereby the work training that we do for our residents is utilized as an enterprise to help generate funds that run the organization.” The President then testified that the room, board, and food provided to Simmons as an SC STRONG participant was not in lieu of wages. The employees apparently are not allowed to seek independent work while enrolled in the program; yet they are not permitted to have an expectation of wages.
Thus, the conclusion of the hearing held that Simmons was not entitled to worker’s compensation benefits because he was considered a “volunteer” worker and not an “employee of SC STRONG.”
Accordingly, if Simmons had been considered an employee of SC STRONG, he would have been entitled to the temporary disability he requested. Simmons then appealed the decision. Ultimately, the case turned on the standard of review that the Commissioners are required to use.
The standard used was found in Schuler v. Tri-County Elec. Co-op, Inc.and found that “The existence of an employer-employee relationship is a factual question that determines the jurisdiction of the Workers’ Compensation Commission.” Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007), “When an issue involves jurisdiction, the appellate court can take its own view of the preponderance of the evidence.” Id. “In determining jurisdictional questions, doubts of jurisdiction will be resolved in favor of inclusion of employees within workers’ compensation coverage rather than exclusion.” Id.
Moreover, under the Worker’s Compensation Act, an employee is defined as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, . . . whether lawfully or unlawfully employed…”S.C. Code Ann. § 42-1-130 (Supp. 2012).
Under Schuler the court held that if a person is found to be an employee, then they have a right to payment for the services they provide. Shuler v. Tri-County Elec. Co-op, Inc., 385 S.C. 470, 473, 684 S.E.2d 765, 767 (2009)
The Court of Appeals went back and forth using the aforementioned language to determine whether or not Simmons was considered an employee or a “volunteer.” Pursuant to the Resident Agreement, Simmons agreed that he was a volunteer and thus owed no compensation for his work aside for the room and board discussed above. The court found that the “working experience” Simmons enjoyed was not for expected compensation, but rather Simmons was “performing services as a volunteer in a rehabilitative program to improve his skills and avoid incarceration.”
Simmons attempted to use Wilson v. Georgetown County to support his position that South Carolina does not require a particular form of payment to establish an employee/employer relationship. Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994). In Wilson¸ the court held that Wilson was an employee of the County because his work was specifically for the benefit of that county, and Wilson was under the control and direction of the Clerk of Court.
However, the Court of Appeals finds the Wilson case distinguishable because Simmons has admitted that he chose to enroll in SC STRONG in lieu of incarceration, and Wilson was simply asking to not sit as a juror due to religious beliefs.
Thus, due to Simmons admittance of the foregoing facts, the Appellant Panel’s finding that Simmons is not an employee of SC STRONG is affirmed and Simmons is denied all workers’ compensation coverage.
After being injured at work, many of our clients are initially afraid of losing their jobs and are not sure if they even want to pursue a claim. In these difficult times, these are good people in tough financial situations that need help. Attorney Robert J. Reeves has practiced workers’ compensation law for over 23 years and knows how to protect your rights as well as your job. As a former workers’ compensation insurance defense lawyer, he knows what a carrier needs to quickly evaluate your claim and get your benefits started. Contact us today at 803-548-4444, or toll free at 877-374-5999
