Sep 18, 2012 | Uncategorized, Workers' Compensation
More analysis of last week’s Court of Appeals workers’ compensation decision, Lewis v. Dynasty, Inc.:
The South Carolina Court of Appeals in a workers’ compensation appeal ruled that an exotic dancer paid in cash was not an employee for the purposes of workers’ compensation.
The plaintiff was on her third night dancing at the Boom Boom Room in Columbia was shot while dancing (a few of the customers had gotten into a fight). She had not filled out an employment application nor signed an employment agreement. She simply showed up unannounced, gave the club a sort of bond, changed, and began dancing. This is apparently the custom.
The club, allegedly her employer, did not have workers’ compensation insurance as was required by law. Thus, the claim and appeals were defended by the South Carolina Uninsured Employers’ Fund.
Both the single Workers’ Compensation Commissioner and the panel ruled against the plaintiff, deciding that she was an independent contractor rather than an employee (to recover in workers’ compensation, the injured person must be an employee under the workers’ compensation statute).
The injured worker appealed the panel’s decision to the South Carolina Court of Appeals.
The only issue was whether she was an employee or an independent contractor.
In South Carolina, the analysis of whether a worker is an employee is to “examine[ ] four factors which serve as a means of analyzing the work relationship as a whole: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; [and] (4) right to fire.” Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009). Perhaps surprisingly though, the question of whether the worker is an employee is jurisdictional, which means on appeal, the appellate body “may take its own view of the preponderance of the facts upon which jurisdiction is dependent,” Pikaart v. A & A Taxi, Inc., 393 S.C. 312, 317, 713 S.E.2d 267, 270 (2011), despite none of the judges being at the trial.
Before applying the Wilkinson test, the court tips its hand, pointing out that in its view the dancer was “an itinerant artistic performer.” Since she was a travelling dancer, not tied down to any one club, and since she kept the majority of her tips, she faces something of a presumption against being an employee. Besides the court emphasizing the unorthodoxy of the situation, and the method of payment, nothing special is going on.
- Right or exercise of control – The court decided that this factor weighed against an employment relationship, despite club’s control of prices and dancing times, because the club did not tell the worker how to dance.
- Furnishment of equipment – The court disregards as unimportant under the Wilkinson analysis the equipment provided by the club, i.e. the stage, poles, couches, rooms, and music. In the view of the court, the only relevant equipment is the “equipment” brought by the dancer to the club. Thus the court finds that this factor weighs against an employment relationship.
- Method of payment – This factor weighs heavily against the worker. The dancer actually paid the club for the right to perform there, she paid the club a portion of her VIP, private dance fees, and she tipped the DJ and bartender. The club paid her nothing.
- Right to fire – The court decided that the right to fire factor weighed against the worker as well. The employment was to only last the evening, and virtually the only actions that would get a dancer kicked out were illegal.
The factors as applied by the court all weighed against the worker.
In the dissent, Judge Short, recognizing the unusualness of the situation just as the majority did, goes the opposite way. Since the club provided everything to the dancer except the dancing, since the club had the right to throw the dancer out at any time without contractual recourse, the dancer was in fact an employee rather than an independent contractor and should be entitled to a workers’ compensation recovery for being shot on the job.
Rock Hill Workers’ Compensation Attorneys
If you or someone you love has been injured in a workers’ compensation accident, you need serious legal help. At Reeves, Aiken & Hightower, we have the experience necessary to get the recovery you deserve, the best possible recovery. Call us today at 877-374-5999.
(more…)
Sep 17, 2012 | Car Accidents, Personal Injury, Trucking/Tractor-Trailer Accidents, Uncategorized, Workers' Compensation, Wrongful Death
A Rock Hill resident lost his life in a multi-car collision involving a tractor-trailer, that consequently ended in a massive fire on Interstate 85.
The accident occurred last Friday, around 1:45 p.m., on I-85 going southbound near the Statesville Road exit. The tractor-trailer was owned and operated by a Food Delivery Service, who had been travelling to Asheboro, N.C., and were on their way back to Rock Hill, SC. The tractor-trailer was empty at the time of the accident.
When the tractor-trailer slide out of control, it slammed into the back of a female driver’s vehicle, trapping her inside. This particular victim was the first one hit in the multi-car collision at hand.
Speed and alcohol have not been considered as attributing factors to the crash.
York County Tractor-Trailer Accident Attorneys
According to the U.S. Department of Transportation, a typical trucking accident or ” tractor-trailer” accident occurs when the larger trucks, usually over 10,000 lbs., collides with other vehicles, trucks, or even worse, pedestrians. The DOT statistics states that around 500 thousand of these accidents occur each year. Of these, 5,000 or so end in fatalities. Even more disturbing, one out of every eight traffic accidents that end in death, are involved with a trucking collision.
In the event that you, or someone you love has found themselves involved in a tractor-trailer, truck, or ” big rig” accident, please call the experience Commercial Truck Attorneys at Reeves, Aiken and Hightower, LLP to evaluate your claim and help get you the justice you deserve!
For more information about our law firm, please visit www.rjrlaw.com. Or call one of our attorneys directly at 877-374-5999.
Sep 12, 2012 | Brain Injury/Head Trauma, Uncategorized, Workers' Compensation
Columbia Police made an arrest in a collision between a vehicle and a pedestrian that took pace near the intersection of Assembly and Greene Streets around 5 a.m. Wednesday.
23-year-old Natalie Jacobson was charged with felony DUI for driving into a construction zone and striking a victim construction worker.
The construction worker was a member of the Lovelace Commercial Construction crew that was doing road work at the scene at the time of the incident. According to the report, the victim was doing traffic control. Police say that the injured crew member is still in the hospital with a head injury.
It takes just an instant of inattention on the road to hit a construction worker doing his or her job. The traffic laws are strict in this area in an attempt to try and prevent what happened here. Please be aware and pay extra attention in road construction areas. The difference could literally save a person’s life.
South Carolina Workers’ Compensation Attorneys
If someone you love is seriously injured while at work on the job, call the experienced workers’ compensation attorneys of Reeves, Aiken & Hightower LLP. Our seasoned litigators have over 75 years combined trial experience. Our team of personal injury attorneys include former insurance defense lawyers, a former Registered Nurse (RN), and former criminal prosecutor. We can investigate all aspects of a serious accident and hold all parties accountable for your loss. Call us today and speak directly with one of our lawyers at 803-548-4444 or 877-374-5999 toll free. We have offices throughout South Carolina and proudly represent injured workers and their families in York County, including Rock Hill, Fort Mill, Indian Land, Tega Cay, Lake Wylie and Clover. We would be honored to have an opportunity to help you and your family get through this most difficult time in your lives.
Sep 12, 2012 | Personal Injury, Uncategorized, Workers' Compensation
In a recent 2-1 decision, the South Carolina Court of Appeals affirmed the workers’ compensataion commission’s position against former stripper, LeAndra Lewis’ claim for benefits because she was not considered an employee of Boom Boom Studio 54 in Columbia.
Lewis, who was 19-years-old when she was performing at the Columbia Club, was shot in the abdomen during a fight that occurred between two customers. The 2008 shooting left Lewis with serious injuries to her liver, intestines, pancreas, kidney and uterus.
During her stripping days, Lewis would normally work five nights a week, traveling between the Carolinas. However, the scarring resulting from her injuries has cut her stripping career short.
Various arguments that Lewis was not an employee support the Court’s decision, including that management never specified how she was supposed to dance for patrons and that the club had not supplied her with any equipment. In fact, “from the standpoint of both the Boom Boom Room and its customers, Lewis brought her own ‘equipment’ for her work,” wrote the court. The Court further noted that the club did not pay Lewis to perform and that it was actually Lewis who paid for the opportunity to dance and collect tips from customers.
Judge Paul Short, dissenting, argued that Lewis was an employee of the club because management had the power to fine or fire strippers who missed their turn in rotation, who left early, charged their own V.I.P. dance price, or broke any other rules.
Columbia Workers’ Compensation Attorneys
Please call the experienced worker’ compensation attorneys of Reeves, Aiken & Hightower LLP. to have you case heard now! Our seasoned litigators have over 75 years combined trial experience. Our team of personal injury attorneys include former insurance defense lawyers, a former Registered Nurse (RN), and former criminal prosecutor. We can investigate all aspects of a serious accident and hold all parties accountable for your loss. Call us today and speak directly with one of our lawyers at 704-499-9000 or 877-374-5999 toll-free. We have offices in Charlotte and throughout South Carolina. We would be honored to have an opportunity to help you and your family get through this most difficult time in your lives. Hire the best worker’s compensation attorneys with whom you have the most confidence in!
Sep 10, 2012 | Personal Injury, Premises Liability, Trucking/Tractor-Trailer Accidents, Uncategorized, Workers' Compensation, Wrongful Death
Last Saturday was grim when a Chester County man was crushed to death while on the job. Isiah McCrorey, age 51, was in charge of operating the cranes for Palmetto Recycling in Rock Hill.
His daughter, Nydia Wherry, is confused by the accident states that her father ” knew those cranes, he’d been working with cranes and working construction for over 20 years,” when the accident occurred; leaving the family baffled and full of questions. Specifically, McCrorey had been working this particular crane at Rock Hill’s Palmetto Recycling for over 2 years.
According to the Rock Hill police report, McCrorey was operating the crane last Saturday when he noticed something was in the way of the crane. He subsequently locked the crane and got out of the equipment in order to move something out-of-the-way. It was at that moment that the one-ton storage container that the crane was holding fell atop McCrorey. Co-workers ran to his rescue and tried to lift the container off of McCrorey as they called 911.
Currently, OSHA is investigating the accident to see if Palmetto Recycling could have done something different to prevent the accident.McCrorey’s daughter Wherry states that her family is not pointing fingers to place blame, however they have obtained counsel to look into the incident.
The victim has left behind his wife of 28 years, along with children and grandchildren to bear the grief.
Rock Hill Work-Related Accident Attorneys
If you or a loved one have been injured or killed in any work-related accident, call the offices of Reeves, Aiken, and Hightower, LLP to help get you the justice you and your family deserve. Call us at 877-374-5999, or use this form, to speak with an attorney who can help you evaluate your claim and get you the best possible recovery. Hire the best work-related accident attorneys in whom you are the most confident will get the job done right! WIth over 75 years of combined experience, Reeves, Aiken, and Hightower, LLP is ready to get you the compensation you deserve.
Aug 25, 2012 | Uncategorized, Workers' Compensation
In order to win a denied workers’ compensation claim, the claimant must show the alleged injury arose out of and in course and scope of employment. This burden of proof usually requires the submission of medical evidence from a doctor or other health care provider relating the injury to the work accident. South Carolina law [Section 42-1-160(g)] defines “medical evidence” as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider.” For years, the use of a “check the box” questionnaire has been used by workers’ compensation claimants’ attorneys. The letter format is much less expensive than scheduling a doctor’s deposition, and treating physicians have become used to receiving these requests for virtually all of their workers’ compensation patients. However, as claims are increasingly being defended more aggressively by insurance companies, many are now starting to question their sufficiency as “medical evidence.”
Questionnaires are customarily used in claims where there is a dispute as to the causal relationship of an alleged injured body part; where there is a question of whether the claimant has reached maximum medical improvement; whether additional medical treatment is necessary; and/or where a prior medical opinion has been changed or even reversed. The questionnaires themselves typically consist of three or four short statements regarding the issue(s) in dispute and then provide “boxes” the option to check “yes” (to agree) or “no” (t0 disagree) with the question posed. However, the questionnaires almost never seek further elaboration from the health care provider of how the opinion was reached or what objective medical evidence was used to base the opinion offered. Hence, the dilemma. While the claimant has technically complied with the statute and produced an opinion from a health care provider, stated to a reasonable degree of medical certainty. However, there is no real foundation offered for a hearing Commissioner to consider the sufficiency of the opinion.
To date, the Commission has not issued any regulation nor given guidance on the use of these medical questionnaires. For now, the questionnaires remain admissible as “medical evidence” at a hearing. But, it appears that the sufficiency and probative value of “check the box” questionnaires will be the subject of defense challenge in the future. Better make sure your lawyer’s questionnaire is clear and shows a basis for the opinion being offered.
Robert J. Reeves of Reeves, Aiken & Hightower LLP has practiced workers’ compensation law for over 23 years. His first seven (7) years was as an insurance defense attorney. He has proudly represented injured workers and their families in York County since 1996. Prior to becoming a lawyer, he was a Registered Nurse (RN). Given his insurance defense and nursing background, Mr. Reeves understands and has successfully prosecuted all types of complex, serious injury claims. He stands ready to fight for you and your family during this difficult and scary time in your life. Call him directly today on his mobile phone 803-554-4157 for a private consultation about your particular circumstances.
