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
Mar 7, 2013 | Uncategorized, Workers' Compensation
In the workers’ compensation appeal, Williams v. Stafford Drywall, the South Carolina Supreme Court addressed questionable evidence of plaintiff’s compensation rate and medical causation testimony. The entire opinion can be downloaded here, Williams v. David Stafford Drywall.
Williams worked for Stafford Drywall as a drywall finisher in the Charleston area. While on the job, she was injured when she fell off a ladder, falling 12-14 feet. In her initial Form 50, she claimed injury to her left ankle bone, pelvis, right foot, left foot, right hip, and left hip. Six months later, she amended the form 50 to claim injury to her left hip, left leg, pelvis, right leg, back, brain, head, and left foot. Eighteen months later, she claimed injury to her left hip, left leg, pelvis, right leg, back, brain, head, left foot, and her bowels and bladder.
The single workers’ compensation commissioner found that she was totally and permanently disabled and awarded her lifetime medical treatment for the injuries to her back, left leg, and pelvis. Williams appealed to the Workers’ Compensation Appellate Panel. The Appellate Panel affirmed the single commissioner’s order in its entirety.
Williams then appealed to the South Carolina Court of Appeals claiming that the Appellate Panel erred in not finding a higher compensation rate, not finding that her neurogenic bladder issue related to her on the job injury, and not finding that she was not partially paraplegic.
The most interesting part of this appeal is the comp rate. Williams like many small construction business employees was not employed every day or every week. Section 42-1-40 of the South Carolina code provides:
[a]verage weekly wage’ must be calculated by taking the total wages paid for the last four quarters . . . divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.
It appears evidence was not presented on how many weeks Williams actually worked. The evidence presented on the compensation rate was limited to the employer’s Form 20 (here’s a blank form 20) and some testimony form both sides. Plaintiff did not submit documentary evidence, e.g. pay stubs, to prove the number of weeks worked. However, there was testimony from both employer and employee that Williams did not work every week.
The statute clearly provides that the usual method for calculating the comp rate is to divide the pay for the year before the injury by the lesser of 52 or the number of weeks worked, but the workers’ compensation commissioner rather than making a best guess as to the number of weeks worked, just divided by 52. While an argument could be made that dividing by 52 would provide the more reasonable approximation of future income earning potential, that was not what was being done explicitly. The Appellate Panel let the decision on how to calculate the comp rate stand without question, and the South Carolina Court of Appeals found substantial evidence to leave it alone.
The Court of Appeals also affirmed the finding that the plaintiff’s neurogenic bladder problems were not medically caused by the accident for the purposes of workers’ compensation. The bladder issue in this case was not raised until over a year after the accident and claim were filed, but there was medical testimony that the bladder condition was caused by the accident. The Court of Appeals recited that the single commissioner and Appellate Panel have discretion in weighing the evidence, and need not abide by expert testimony when there is other competent evidence on point. Potter v. Spartanburg Sch. Dist. 7, 395 S.C. 17, 23, 716 S.E.2d 123, 126 (Ct. App. 2011). This is another example of the wide latitude the Workers’ Compensation Commission has in deciding cases and the relative lack of court oversight.
If you, or someone you know has been involved in an accident on the job, contact the offices of Reeves, Aiken, and Hightower, LLP to have your South Carolina claim evaluated. With over 23 years experiences, Mr. Reeves has been exposed to numerous work-related cases in which Worker’s Compensation was to be applied and is competent to handle your case. Call today at 803-548-4444 or toll free at 877-374-5999
Feb 22, 2013 | Uncategorized, Workers' Compensation
The South Carolina Supreme Court has just adopted for the first time the dual persona doctrine in workers’ compensation in Mendenall v. Anderson Hardwood Floors. The Court did so in answering the following question certified to it by the Federal District Court for the District of South Carolina:
Does the “dual persona” doctrine allow an injured employee to bring an action in tort against his employer as a successor in interest who, through a corporate merger, received all liabilities of a predecessor corporation that never employed the injured person but allegedly performed the negligent acts that later caused the employee’s injuries, or is such action barred by the exclusivity provision of the South Carolina Workers’ Compensation Act?
While the SC Workers’ Compensation statute provides immunity for statutory employers under § 42-1-540 when an employee is injured in the course of their employment, it is well settled that employees can recovery against third-parties (i.e., anyone who caused their on-the-job injury other than their employer). Analogizing this principle to cases where the employer and employee may have separate relationships and obligations independent of the employer-employee relationship, some courts have adopted either or both the dual capacity doctrine and dual persona doctrine. The dual capacity doctrine allows an employee to sue an employer in tort when the employer has an obligation independent of those owed as an employer. South Carolina had rejected the dual capacity doctrine, Johnson v. Rental Uniform Serv. of Greenville, 316 S.C. 70, 70, 447 S.E.2d 184, 185 (1994), but had only discussed and not adopted the dual capacity doctrine. Tatum v. Med. Univ. of S.C., 346 S.C. 194, 205, 552 S.E.2d 18, 24 (2001).
The dual persona doctrine applies when:
[a]n employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.
Since the SC Supreme Court was answering a question certified to it by the federal district court on the motion of the plaintiff’s attorney, the Court left it to the District Court to apply the law to the facts, this case does provide a good of example of a case where the dual persona doctrine would apply. In this case, Mr. Mendenall was hired by Anderson Hardwood Floors to work in their Colleton County wood product manufacturing plant. The original owner of that Colleton County plant, Walterboro Veneer, had designed and built a cement vat for the purpose of soaking hardwood logs in a high-temperature solution. Years later all of the assets and liabilities of Walterboro Veneer ended up with Anderson Hardwood Floors. After four months of working with Anderson, Mr. Mendenall while attempting to access a pipe to repair a steam leak fell into the 190º F vat. Suffering serious burns on over 90% of his body, Mr. Mendenall soon died.
The dual persona doctrine should apply here because a separate legal entity from Anderson, that never employed Mr. Mendenall, built and designed the vat. If the vat had been built for Anderson by a contractor, the plaintiff would have been able to recover. To satisfy the doctrine, the second persona need only be so different that the law would treat them differently. In this case, they were actually separate legal persons, although Anderson was the successor to the third party.
Feb 21, 2013 | Uncategorized, Workers' Compensation
The South Carolina Workers’ Compensation system provides only for those injured while employees under the Workers’ Compensation statute. In Simmons v. SC STRONG, the South Carolina Court of Appeals found that Simmons was not a statutory employee, but rather a volunteer. South Carolina STRONG is a non-profit organization that seeks to rehabilitate those who have been convicted of crimes or suffered substance-abuse through a two-year program of structured work and job-training. SC STRONG is paid for the work the participants do, but the participants agree to not be paid for their work. SC STRONG gives the participants room, board, clothing, and job training.
Whether an individual is a statutory employee is a jurisdictional question determined by fact, and the standard of review for an appeals court is de novo. The Court of Appeals takes its own view of the preponderance of the evidence. Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007), aff’d, 385 S.C. 470, 472, 684 S.E.2d 765, 767 (2009).
The Appellate Panel of the Workers’ Compensation Commission relied on three cases finding volunteers not to be statutory employees:
Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994) (finding unpaid daughter of store owner not an employee)… Doe v. Greenville Hosp. Sys., 323 S.C. 33, 39-40, 448 S.E.2d 564, 567-68 (Ct. App. 1994) (holding an unpaid volunteer candy striper was not the employee of a hospital);
McCreery v. Covenant Presbyterian, 299 S.C. 218, 223-24, 383 S.E.2d 264, 267 (1989) (finding an unpaid church volunteer not an employee of the church for workers’ compensation purposes), rev’d on other grounds, 303 S.C. 271, 400 S.E.2d 130 (1990).
Simmons counted by citing Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994), for the proposition that statutory employees need not be paid in cash. In Wilson, the South Carolina Supreme Court disregarded the usual rule that jurors are not workers’ compensation employees, instead emphasizing that Wilson had worked at the direction of the clerk of court for the benefit of the county. The Court of Appeals distinguished Wilson from the Simmons case, reasoning:
The circuit court required Wilson to perform janitorial services in lieu of jury service. Simmons was an admitted volunteer who chose to participate in the SC STRONG program in lieu of serving his prison sentence.
It seems that the court is emphasizing the choice to volunteer, over the compulsion by the court, although it is not clear. In both cases, a person is working under the supervision of the court without cash pay. However, Wilson received nothing in exchange for his janitorial work, except excuse from jury duty (It is not clear how Wilson comes out ahead hear.). Simmons on the 0therhand received room and board, which unlike excuse from jury duty is available on the open market. Oddly, had Simmons been injured while working in prison, he would have been entitled to workers’ compensation.
The court does not consider whether Simmons was an apprentice, noting that Simmons waived the issue by raising it for the first time in his reply brief before the Court of Appeals and not raising it at all before the appellate panel. The case law generally provides that statutory employees must have some entitlement to pay, but the statute does specifically mention apprentices.
Simmons might have a separate remedy. Since Simmons is not a statutory employee of SC STRONG, it is possible that he could sue SC STRONG outside of workers’ compensation in ordinary negligence, or some other cause of action. However, outside of workers’ compensation, a plaintiff has to prove liability (e.g., the employers’ negligence), while being injured on the job is enough in workers’ compensation.
Feb 15, 2013 | Uncategorized, Workers' Compensation
In the opinion for a recent workers’ compensation appeal, Brown v. Peoplease, the South Carolina Court of Appeals gives us an opportunity to review both the lax standard of review that workers’ compensation cases receive upon review to the courts and the informal nature of appeals from the initial single commissioner Workers’ Compensation Commission to the Appellate Panel (of the Workers’ Compensation Commission).
Brown v. Peoplease involved a relatively common incident: a car accident on the job. Peoplease had arranged for Brown to drive a truck for the Bulldog trucking company when Brown’s truck was hit by a passenger car (Note that since this is a workers’ compensation case, Brown’s negligence, if any, is not at issue, as it would be in an ordinary car accident case).
Peoplease’s attorneys did not contest that the injuries suffered in the accident were compensable injuries under the workers’ compensation statute. The issues at the hearing were what Brown’s compensation rate should be and the extent if any of Brown’s permanent disabilities.
Compenstion rate
Compensation rates are usually determined by dividing the total wages paid over the last four quarters by the lesser of 52 or the actual number of weeks worked, except when this method would be unfair. S.C. Code Ann. §42-1-40. Since Brown had only been working for Peoplease for 16 weeks when the accident occurred, this method was inappropriate, and Brown and Peoplease presented evidence and testimony to establish the compensation rate. The testimony of Peoplease’s corporate lawyer, who relied on her review of similar Peoplease employee’s pay rates ($26,000 to $38,500), and Brown, who offered his recollection of what he was offered at the outset of his employment conflicted ($0.50 per mile). Peoplease offered no documentary evidence, and Brown offered only his paystubs, which were of limited use because his pay rate on the stubs was “$1/hour,” far outside of the range that either party was arguing. Given this evidence, the single commissioner, as fact-finder, set the compensation rate at the highest figure cited by Peoplease, below the $0.50 per mile, Brown said he was offered.
Causation of Specific Back Injuries
Employers in workers’ compensation are only liable for injuries caused by accident on the job. Throughout Brown’s case and in doctor’s letters and notes, references were made to his back and neck injuries generally. The only evidence specifying a particular portion of the back was evidence of what surgeries were done, which were on the cervical spine (except for vague reference of lumbar pain at the initial emergency room visit). Brown also claimed injury to his lumbar spine. The single commissioner cited that back injuries are complicated and that medical testimony must be offered to support specific back injuries and disabilities, and thus, he found that, since Brown offered no medical testimony establishing the cause of his lumbar issues was the accident, he was not entitled to lifetime medical expenses for his lumbar issues. Had the doctor been specifically asked separately about the cervical spine and the lumbar spine, the doctor might have said that the lumbar problems were caused by the accident. Since he wasn’t, the single commissioner denied claims based on Brown’s lumbar problems.
Standard of Review in Workers’ Compensation Appeals
As in all South Carolina workers’ compensation appeals to the South Carolina Court of Appeals, the standard of review is that the decision of the Appellate Panel of the Workers’ Compensation Commission will not be reversed unless there is an error of law or the decision is not supported by substantial evidence. S.C. Code Ann. § 1-23-380(5)(e). Substantial evidence means evidence that would allow a reasonable person to reach the same conclusion. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306. Since the evidence does not completely fly in the face of a finding that there was no causation evidence as to lumbar back injuries or the compensation rate determined by the commissioner, the Court of Appeals cannot reverse.
Appellate Panel’s Adoption of Proposed Order Drafted by Respondent Attorneys
Interestingly, Brown claims that the Appellate Panel erred in having the Respondents’ attorneys prepare a proposed order affirming the single commissioner’s decision, subject to specific instructions on what to write and the commissioners’ right to modify anything in it. The Court of Appeals found no issue with this practice and supported the propriety of the Appellate Panel’s decision by citing an opinion where no issue was found with an Appellate Panel adopting a single commissioner’s findings verbatim, Trotter v. Trane Coil Facility, 393 S.C. 637, 644, 714 S.E.2d 289, 292 (2011), and an opinion where a proposed order is merely mentioned, Matute v. Palmetto Health Baptist, 391 S.C. 291, 295, 705 S.E.2d 472, 474 (Ct. App. 2011).
Motion for Remand
Brown also claimed that the South Carolina Court of Appeals erred in denying a motion for leave to submit additional evidence under section 1-23-380(3) of the S.C. Administrative Procedures Act.
Brown had found a card he had been given before applying to work for Bulldog Trucking that offered 50¢ a mile and would have presumably been material evidence in calculating his compensation rate.
However, to be able to prevail on a motion for leave to submit additional evidence, there must be a showing not only of materiality, but also of good reason for failure to produce the evidence at the original hearing. Id. The Court of Appeals found that there was no such good reason, but even had they found that there a reason, the standard of review above would have applied. Thus, to reverse the Appellate Panel, the Court would have had to find an error of law or that the substantial evidence did not support the decision.
To download the entire Brown v. Peoplease SC Court of Appeals opinion, follow this link.
Jan 21, 2013 | Uncategorized, Workers' Compensation
Fortner v. Evans Construction, a recent South Carolina Court of Appeals case, examines some of the complications that can arise in employers in workers’ compensation cases, especially in cases involving construction settings. In Fortner, the employee fell off of a roof while pressure washing. The issue on appeal in the case is which construction company Fortner was an employee of, either Evans Construction or Custom Building (owned and operated by the son of the owner/operator of Evans Construction).
This issue is key because only an “employee” can bring a workers’ comp claim, and the employee can only bring his claim against an “employer” (the definitions of these terms in South Carolina come from the workers’ compensation statute and the collective judicial gloss on the statute). A common controversy is over whether the worker is actually an employee, or rather an independent contractor. However, some cases, like Fortner, present the opposite problem: which business is the employer? (more…)
