Fort Mill Workers’ Compensation Attorney – Average Weekly Wage – Stacking Wages

Mar 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This SC Supreme Court case addresses the issue of “stacking” wages. In many states, an employer is only responsible for an injured workers’ lost wages from the one job. However,  under SC workers’ compensation law, you are able, in most situations, to “stack” or “combine” lost wages from other employment as well. Here, the Court was presented with the unique issue of whether someone serving jail time on the weekends could similarly stack their wages when injured at prison. Given clear legislative language against same, the Court ruled no stacking was permitted under these limited circumstances. Because the “average weekly wage” and resulting “compensation rate” are key to every financial aspect of a workers’ compensation claim, it is imperative that you get maximum credit for all possible wages and even qualifying fringe benefits. Better make sure your attorney understands this area of workers’ compensation law and is willing to fight to get you the best possible compensation rate. There is too much at stake to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit 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 what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have 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 case. Compare our attorneys’ credentials to any other firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court

James A. Smith, Respondent,

v.

Barnwell County, Employer, and South Carolina Association of Counties Self Insurance Fund, Carrier, Appellants.

Appeal from Barnwell County
Doyet A. Early, III, Circuit Court Judge

Opinion No. 26716
Heard June 10, 2009 – Filed September 8, 2009

REVERSED

Richard Kale, Jr., of Wilson, Jones, Carter & Baxley, of Greenville, for Appellants.

Andrew Nathan Safran, of Columbia, for Respondent.

Grady L. Beard and Daniel W. Hayes, both of Sowell, Gray, Stepp & Laffitte, of Columbia, for Amicus Curiae.

JUSTICE PLEICONES:  This case presents the question whether an inmate injured while serving time on weekends may include his full time employment wages in addition to prison pay in determining his average weekly wage, for purposes of workers’ compensation.  Because we find that the legislature intended to deny inmates the right to combine wages, we find that Respondent may not do so.  We therefore reverse the circuit court’s decision to the contrary.

FACTS

After a conviction for driving under the influence, Appellant James A. Smith served time on weekends at the Barnwell County Detention Center, where he was directed to engage in various work activities.[1]  Smith also worked during the week at Bowe Construction.  While working at a landfill during his weekend sentence, Smith fell from a tractor and injured his back.

Barnwell County elected to cover its prisoners under the workers’ compensation program, as allowed by S.C. Code Ann. § 42-1-500 (2005).  Barnwell County accepted Smith’s claim for workers’ compensation and began paying him compensation based upon an average weekly wage of $40 a week, the amount provided in S.C. Code Ann. § 42-7-65 (2005) as the average weekly wage for county and municipal prisoners.  Smith then filed a Form 50 with the Workers’ Compensation Commission contending that the average weekly wage from his regular employment, which he claimed was $333.82, should also be included in determining his compensation.

Following a hearing, the single commissioner ruled that Smith could not include the average weekly wage from his regular employment.  The full commission affirmed and the circuit court reversed the full commission.  Barnwell County appealed.

ISSUES

DISCUSSION

The amount of compensation awarded under the workers’ compensation statutes is based on the worker’s average weekly wage.  S.C. Code Ann. § 42-1-40 provides the method for calculating the average weekly wage, but allows for deviation from the method “for exceptional reasons . . . .”  S.C. Code Ann. § 42-1-40 (2005).  This Court has held that concurrent employment is one such exceptional reason.  See Foreman v. Jackson Minit Markets, Inc., 265 S.C. 164, 217 S.E.2d 214 (1975).

Barnwell County argues on appeal that Smith was not an “employee” of Barnwell County and therefore, since Smith was not working for two or more employers when the injury occurred, Smith may not recover compensation for concurrent employment.  We need not reach this issue because we agree with the County that, even assuming Smith is an “employee” for workers’ compensation purposes, he may not combine wages under § 42-1-40.

Originally, the average weekly wage for prisoners was addressed in § 42-1-40, which contained the “exceptional reasons” provision.[2]  In 1983, after this Court’s decision in Foreman, the General Assembly removed the inmate section from § 42-1-40 and included it in the newly-created § 42-7-65, which contains no “exceptional reasons” provision.  Section 42-7-65 is entitled “Average weekly wage designated for certain categories of employees”[3] and provides in part, “[t]he average weekly wage for county and municipal prisoners is forty dollars a week.”

By removing inmates from § 42-1-40, designating a specific weekly wage for inmates, and not providing an “exceptional reasons” provision in § 42-7-65, we find that the General Assembly intended that inmates not be allowed to combine wages in determining their average weekly wage.  Compare Boles v. Una Water District, 291 S.C. 282, 353 S.E.2d 286 (1987) (holding that volunteer firefighter may combine wages where firefighter’s average weekly wage was set forth in § 42-1-40).  If the General Assembly had not intended such a result, there would have been no reason to remove inmates from § 42-1-40.  See Cannon v. South Carolina Dep’t of Probation, Parole, and Pardon Serv., 371 S.C. 581, 430, 641 S.E.2d 429, 584 (2007), citing Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (it must be presumed the Legislature did not intend a futile act, but rather intended its statutes to accomplish something).

Given the above, we find that the General Assembly intended to deny inmates the ability to combine wages in determining their average weekly wage.  See State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002) (The cardinal rule of statutory interpretation is to ascertain the intent of the legislature.).  Smith is therefore limited to the average weekly wage provided by § 42-7-65.[4]

CONCLUSION

Assuming arguendo that Smith is an “employee” for purposes of the workers’ compensation statute, we find that Smith may not combine wages.  The General Assembly did not intend for an inmate to be able to combine wages in determining his average weekly wage.

REVERSED.

TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.

[1] Though the record is silent as to whether Smith’s labor was mandatory or voluntary, he was apparently engaged in a voluntary program for labor on public works allowed by S.C. Code Ann. § 24-13-235 (2005).

[2] Though § 42-1-40 only specifically addressed the average weekly wage of inmates of the State of South Carolina, S.C. Code Ann. § 42-1-500 (1977) provided for worker’s compensation coverage for certain county inmates in accordance with the statutes addressing coverage for State inmates.

[3] 1983 Act No. 33, § 1; county prisoners were added in 1991 Act. No. 16, § 2.

[4] We reject Smith’s argument that S.C. Code Ann. § 42-7-65 (2005), as interpreted by Appellant, is penal in nature and so, must be strictly construed against the governmental entity seeking to enforce it.  “A determination of whether a statute is civil or criminal in nature is primarily a question of statutory construction, which begins by reference to the act’s text and legislative history.”  See In re Matthews, 345 S.C. 638, 648, 550 S.E.2d 311, 316 (2001).  “Where the legislature has manifested its intent that the legislation is civil in nature, the party challenging that classification must provide ‘the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the [legislature’s] intention.’” Id.  In the instant case, Smith has failed to show the punitive nature of § 42-7-65, a part of the worker’s compensation act.

SC Workers’ Compensation – Third Party Lawsuit – When Fault Matters

Mar 9, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This SC Supreme Court case does not mention workers’ compensation, but it is clear from the facts that this plaintiff was initially injured on the job and then later sued the third party in civil court. When hurt at work, you sometimes have a second lawsuit against an entity other than your employer if their negligence causes your injuries. Here, the workers’ compensation claim would have been against the injured worker’s hospital employer. When that case was concluded, he then brought suit against the general building contractor doing renovation work at the hospital facility. In workers’ compensation claims, negligence is not an issue absent certain situations not present in this case. However, in a third party case, you have to deal with all legal issues, including who was at fault and in what degree as well as potential defenses that may come into play. As you can see, these cases are aggressively defended and ultimately remanded for a new trial because the jury verdict was clearly insufficient in light of the overall medical expenses. Cases where you have both a workers’ compensation claim and then a separate third party case can be extremely complicated. Better make sure your attorney is experienced in both areas and knows how to effectively prosecute both claims so that you get maximum recovery. This is not the time to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit 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 what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have 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 case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Ronnie Lane, Respondent,

v.

Gilbert Construction Company, LTD., Appellant.

Appeal from Florence County
Thomas A. Russo, Circuit Court Judge

Opinion No.   26701
Heard May 12, 2009 – Filed August 17, 2009

AFFIRMED

Everett A. Kendall, II, of Sweeny, Wingate & Barrow, of Columbia, for Appellant.

D. Kenneth Baker, of Darlington, James H. Moss and

H. Fred Kuhn, Jr., both of Moss, Kuhn & Fleming,  of Beaufort, for Respondent.

JUSTICE PLEICONES:  In this premises liability action, a jury found for Respondent Ronnie Lane (Lane) in the amount of $75,000.  The trial court then granted Lane’s motion for a new trial absolute, which ruling Gilbert now challenges on appeal.  We affirm.

FACTS

Appellant Gilbert Construction Company LTD (Gilbert) entered into an agreement to renovate McLeod Regional Medical Center (Hospital).  The renovation included work on a courtyard, accessible by an emergency exit from the building.  The superintendent of Gilbert testified that during the demolition/foundation phase of the project six holes for footings were created on the site, including one in the courtyard.  A number of the holes were covered, but Gilbert decided not to cover the hole in the courtyard.  The superintendent explained that he believed that the area was cordoned off.

Sometime between 2:30 and 3:30 a.m. Lane, an HVAC mechanic at the Hospital working the “graveyard shift,” responded to the latest in a series of false fire alarms.  Lane testified that each time the alarm was activated the alarm system automatically alerted the fire department.  Since the fire department had previously responded to false alarms twice during Lane’s shift that night, he decided to walk down to tell the switchboard operator to put the system in “test mode” so that it would not automatically alert the fire department.

Lane knocked on the door to the switchboard room and, receiving no answer, chose to walk out of the emergency exit and into the courtyard in order to reach another door to the security and switchboard area.  The emergency exit door was slightly ajar and when Lane opened it he saw “caution tape” hanging down on the side of the door.  He then stepped out into what he described as “pitch black dark” and fell into the hole, breaking his ankle.

Lane underwent a number of surgeries to repair his ankle and missed weeks of work.  All told, Lane’s medical care related to the ankle injury totaled $73,754.  On cross examination, Lane admitted that he returned to work in his previous capacity as an HVAC mechanic in between his surgeries, though in sedentary work.  Following his last surgery, he was assigned to a new job as a computer operator.  In his new job, Lane works at a desk in shifts from 7:00 a.m. until 3:30 p.m., rather than the “graveyard” shift he worked as an HVAC mechanic.

An expert for Lane conducted a vocational assessment and determined that Lane was not capable of performing the job that he had prior to the injury.  She further opined that Lane would only be eligible for minimum wage positions if he were to lose the position he currently has.

The jury found Lane 45% at fault and Gilbert 55% at fault and awarded $75,000 in actual damages.  Lane moved for a new trial absolute which the court granted.

ISSUES

I.    Did the trial court err in denying Gilbert’s motion for a directed verdict?

II.   Did the trial court err in granting a new trial?

III.  Did the trial court’s order granting a new trial deprive Gilbert of its right to trial by jury?

DISCUSSION

I. Did the trial court err in denying Gilbert’s motion for directed verdict?

Gilbert contends that the evidence does not support classification of Lane as an invitee and instead only supports classification as a licensee or trespasser.  Furthermore, Gilbert argues that there is no evidence to show a breach of the landowner’s duty to a licensee or trespasser and therefore, Gilbert is entitled to a directed verdict.  We disagree.

“A motion for directed verdict goes to the entire case and may be granted only when the evidence raises no issue for the jury as to liability.” Ecclesiastes Production Ministries v. Outparcel Assoc., LLC, 374 S.C. 483, 490, 649 S.E.2d 494, 497 (Ct. App. 2007),citing Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 358, 191 S.E.2d 774, 779 (1972).

“Under a premises liability theory, a contractor generally equates to an invitor and assumes the same duties that the landowner has, including the duty to warn of dangers or defects known to him but unknown to others.” Larimore v. Carolina Power & Light, 340 S.C. 438, 448, 531 S.E.2d 535, 540 (Ct. App. 2000).

The trial court classified Lane as an “invitee.”  An invitee is a person “who enters onto the property of another by express or implied invitation, his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or a benefit to the owner.” Singleton v. Sherer, 377 S.C. 185, 199, 659 S.E.2d 196, 204 (Ct. App. 2008), quoting Sims v. Giles, 343 S.C. 708, 716-17, 541 S.E.2d 857, 862 (Ct. App. 2001).

Gilbert contends that Lane was not an invitee because he had no consent, either express or implied, to be in the courtyard and because his presence in the courtyard was not to the interest or advantage of Gilbert.  We find that there was at least implied consent to use the area since it was immediately outside of an emergency exit.  Moreover, Lane was at least partly benefiting Gilbert by attempting to have the switchboard disable the automatic alert to the fire department.  Lane testified that the fire alarm repeatedly sounded during his shift.  Each time the alarm sounded, the alarm system automatically notified the fire department.  By instructing the switchboard to place the system in “test” mode, Lane could ensure that the business of both the Hospital and Gilbert would not be repeatedly interrupted by the sounding of the alarm, unnecessary evacuations, and arrival of fire department personnel.

Moreover, even if Lane did not provide a benefit to Gilbert, Gilbert would not be entitled to a directed verdict if Lane were classified as a licensee.

“A licensee is a person who is privileged to enter upon land by virtue of the possessor’s consent.” Neil v. Byrum, 288 S.C. 472, 473, 343 S.E.2d 615, 616 (1986).  “When a licensee enters onto the property of another, the primary benefit is to the licensee, not the property owner.” Singleton, 377 S.C. at 198, 659 S.E.2d at 203.

“A landowner owes a licensee a duty to use reasonable care to discover the licensee, to conduct activities on the land so as not to harm the licensee, and to warn the licensee of any concealed dangerous conditions or activities.”  Singleton, 377 S.C. at 201, 659 S.E.2d at 204.  In our view, the evidence presented at trial raised a jury question as to whether or not Gilbert met the duty owed to Lane as a licensee.  Therefore, even assuming Lane was a licensee, the trial judge did not err in denying the motion for a directed verdict.  See Ecclesiastes Production Ministries, supra.

We find that the trial court properly classified Lane as an invitee.  Moreover, even assuming Lane is not an invitee, Gilbert would not be entitled to a directed verdict.  Consequently, the trial judge did not err in denying Gilbert’s motion for a directed verdict.

II. Did the trial court err in granting a new trial?

Gilbert argues that the trial court erred in granting Lane a new trial.  We disagree.

In South Carolina, a trial judge may grant a new trial following a jury verdict under the Thirteenth Juror Doctrine.  The doctrine “entitles the judge to sit, in essence, as the thirteenth juror when he finds ‘the evidence does not justify the verdict,’ and then to grant a new trial based solely ‘upon the facts.’” Norton v. Norfolk Southern Railway Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002),citing Folkens v. Hunt, 300 S.C. 251, 387 S.E.2d 265 (1990).  As the thirteenth juror, the trial judge can hang the jury by refusing to agree to the jury’s otherwise unanimous verdict. Id.

Upon review, a trial judge’s order granting or denying a new trial will be upheld unless the order is wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law. Norton, 350 S.C. at 478, 567 S.E.2d at 854.  This Court’s review is limited to consideration of whether evidence exists to support the trial court’s order. Id. at 478-79, 567 S.E.2d at 854.  As long as there is conflicting evidence, this Court has held the trial judge’s grant of a new trial will not be disturbed. Id.

The judge is not required to explain the reasons for his decision. Id.  In this case, however, the trial judge provided an explanation in the order granting the motion for a new trial.  The court noted that Lane presented evidence at trial, which was “uncontested by the defendant,” of actual medical costs of $73,754, lost wages from the date of injury up until the time of trial of $17,248, and a 21% permanent impairment rating.  The court also noted that the jury heard testimony from two experts opining that Lane suffered a loss of personal services to his family equivalent to $19,381, such as household chores, and is unable to perform the duties required by his prior job as an HVAC mechanic.  The court concluded:

[A]fter careful review of all of the facts and circumstances of this case and other cases in the state of South Carolina, this Court believes that an amount of Seventy Five Thousand and no/100 ($75,000.00) Dollars can only be explained on the basis of passion, prejudice or caprice on the part of the jury.  The jury’s verdict in this case shocks the conscience of this Court, as an award of damages, particularly the considerations, or lack thereof, of the uncontested damages presented by the Plaintiff, including a Twenty-One (21%) percent permanent impairment to health.  As such, this Court finds that the jury’s verdict in this matter is grossly inadequate in light of the evidence presented.

The trial judge then granted Lane’s motion for a new trial absolute.

A. Did the trial court commit legal error in viewing certain damages as “unconstested?”

Gilbert first argues that it was legal error for the trial judge to base his order on the idea that certain damages were “uncontested.”  Gilbert contends that it “did contest those damages, denying them in its Answer, by not stipulating as to damages and by questioning Lane’s claims in cross-examining various witnesses about them.”  In Gilbert’s view, the trial court’s Order implied that Gilbert was required to put up witnesses to contest the claim of damages and thereby shifted the burden of proof from the plaintiff to the defendant.  We disagree.

In considering a motion for a new trial, the trial judge must look to see if the evidence justifies the jury verdict. See Norton, 350 S.C. at 478, 567 S.E.2d at 854.  The court, in making such an inquiry, is perfectly justified in noting whether the evidence presented to the jury was or was not challenged in front of the jury.

Moreover, the trial judge’s statement that certain evidence was “uncontested” was not factually incorrect, since the evidence in question was not challenged by Gilbert at trial, even on cross-examination.  Gilbert’s counsel told the jury in his opening statement:

We are not contesting that he was injured.  We are not going to challenge those areas about his life.  He was injured.  He has undergone a lot of medical treatment.  But, there is one part of his damages that we are going to talk about.  We do take exception to the future los[t] wages that you are going to hear.

As promised, Gilbert did not challenge the medical costs, lost wages prior to trial, or physical impairment rating.  Instead, Gilbert chose to focus on disputing Lane’s claims for future lost wages, and succeeded as the jury awarded $0 for that particular claim.

The trial court committed no error in noting that certain damages were “uncontested” in its order granting a new trial.

B. Is there evidence to support the trial court’s order?

Gilbert contends that the trial court erred in granting a new trial because there is no evidence to support the order.  We disagree.

On a special verdict form, the jury awarded $75,000 in actual damages of which it attributed $0 to future diminished earning capacity.  Gilbert argues that the jury properly declined to award earning capacity since, at the time of trial, Lane was employed in a job that paid better than his previous job.  Gilbert also posits reasons why the jury might choose to reduce the awards for pre-trial personal services, pain and suffering, and medical bills.[1]

Gilbert’s points are not entirely without merit.  However, the question before this Court on appeal is whether the trial court’s decision to grant a new trial is wholly unsupported by the evidence. See Norton, 350 S.C. at 478, 567 S.E.2d at 854.  In the instant case, Lane presented evidence of $73,754 in medical bills and $17,248 in lost wages up to the time of trial, neither of which was challenged by Gilbert.  Lane also presented evidence that Lane has a 21% physical impairment, experienced pain and suffering related to the accident, and suffered a loss of personal services to his family of $19,381.  We find the trial court’s decision order granting a new trial is supported by the evidence.

III. Was Gilbert denied its right to a trial by jury?

Gilbert contends that to grant a new trial after the jury verdict was “de facto to deny Gilbert its constitutional right to trial by jury.”  In short, Gilbert contends that the Thirteenth Juror Doctrine is unconstitutional under the South Carolina constitution.  We disagree.

The Thirteenth Juror Doctrine is a well-established in South Carolina as the standard for granting a new trial. See Norton, 350 S.C. 477, 567 S.E.2d at 854.  This Court has reviewed the doctrine on several occasions and has refused to abolish it. Id. at 478, 567 S.E.2d at 854.

The right to trial by jury is a fundamental right. See Wright v. Colleton County School Dist., 301 S.C. 282, 291, 391 S.E.2d 564, 570 (1990).  As such, any abridgement of that right is subject to strict scrutiny. See City of Beaufort v. Holcombe, 369 S.C. 643, 632 S.E.2d 894 (Ct. App. 2006).  To meet strict scrutiny, a law or policy must meet a compelling state interest and be narrowly tailored to effectuate that interest. See In re Treatment and Care of Luckabaugh, 351 S.C. 122, 140-41, 568 S.E.2d 338, 347 (2002).

The Thirteenth Juror Doctrine does not abridge the right to a trial by jury since the effect of a trial judge’s decision to grant a new trial is to allow another jury trial.  Therefore, the parties are not deprived of a trial by jury.

We affirm the trial court’s exercise of power under the Thirteenth Juror Doctrine.

CONCLUSION

The trial court did not err in declining to grant a directed verdict for Gilbert based on Lane’s status for purposes of premises liability.  Furthermore, the trial court did not err in granting a new trial under the Thirteenth Juror Doctrine, nor is the doctrine unconstitutional.  Therefore, the decision of the trial court is

AFFIRMED.

WALLER, BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1] Gilbert contends that the jury may have reduced the amount of damages based on medical bills because (1) though the bills were introduced, there was no testimony that they had been paid, and (2) the jury could have reasonably concluded from Lane’s answer that the summary of medical expenses was correct “to my knowledge” that Lane did not know how much he had been billed, or actually paid for medical expenses.

SC Workers’ Compensation – Employment Application – Honest Mistake or Fraud

Mar 5, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This SC Supreme Court case addresses the distinction between errors made when completing employment applications and outright fraud which can deny workers’ compensation benefits. In these difficult economic times, it may be tempting to “hedge” on questions. Other questions may be badly worded and hard to understand. Nevertheless, it is important to your own safety not to apply for a job that puts your health at risk. If you do get a job and get hurt, the answers on the intitial employment application may come back to challenge your claim. But remember, your employer has to prove three (3) elements to defeat your claim. Better make sure your workers’ compensation attorney understands these complex issues and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit 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 what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have 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 case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Lawrence Brayboy, Employee, Respondent,

v.

WorkForce, Employer and American Home Assurance, Carrier, Defendants,

Of Whom WorkForce, Employer, is the Appellant.

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

Opinion No.  26675
Heard April 9, 2009 – Filed June 22, 2009

REVERSED

Kirsten L. Barr, of Mt. Pleasant, for Appellant.

John S. Nichols, of Columbia and Matthew Jackson, of North Charleston, for Respondent.

JUSTICE KITTREDGE: In this workers’ compensation case, claimant Lawrence Brayboy made material misrepresentations on his employment application.  Subsequently, Brayboy claimed workers’ compensation benefits, which the Workers’ Compensation Commission awarded.  The circuit court upheld the award on the basis of the substantial evidence standard of review.  Because the issue of Brayboy’s employment status is jurisdictional, the Court makes findings based on its view of the preponderance of the evidence.  We find the employer, WorkForce, established the three-factor test in Cooper v. McDevitt & Street Co., 260 S.C. 463, 468, 196 S.E.2d 833, 835 (1973), and reverse.

I.

On April 18, 2003, Brayboy sustained a back injury, which required lumbar fusion surgery.  On the day of the injury, Brayboy moved a lot of lumber and while removing a chain link fence, he felt a terrible pull in his back.  Brayboy worked the entire day, which was a Friday, and reported the injury on Monday.  Subsequently, Brayboy filed a workers’ compensation claim against his putative employer, WorkForce.

Brayboy’s employment application included the following disclaimers:

If I do not give accurate and truthful information on this Medical History Questionnaire, which forms the second and final part of my employment agreement, the entire employment agreement shall be considered null and void.

MISREPRESENTATIONS AS TO PREEXISTING PHYSICAL OR MENTAL CONDITIONS MAY CAUSE FORFEITURE OF YOUR WORKERS’ COMPENSATION BENEFITS.

(emphasis in original).  Notably, Brayboy signed his name under these cautionary statements.  Despite these warnings, Brayboy responded in the negative to all questions inquiring if Brayboy had prior back injuries, physical defects, medical conditions, or previous workers’ compensation claims.  However, at the workers’ compensation hearing, Brayboy testified about multiple prior physical problems.  These conditions included a back injury while in the Navy, a back injury in 1996 resulting in a workers’ compensation claim, and a pinched nerve in 1996.

Specifically, during his service in the Navy in the early 1970s, Brayboy fell, slid on the ship’s deck, and hit a rail.  According to Brayboy, the Navy x-rayed his back and gave him medicine for treatment.  The Navy also diagnosed Brayboy with a back deformity he had since birth — a missing piece of bone.  Brayboy further stated he was honorably discharged in 1973 due to his back defect.

Notably, since the 1970s, Brayboy has received benefits from the Department of Veterans’ Administration (VA).  The impairment rating increased from ten to twenty percent due to a pinched nerve.  Following the 2003 injury, the VA raised Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”

Brayboy further testified he filed a workers’ compensation claim in 1996 while working for McCrory Construction.  The claim arose from an accident when Brayboy was in a hole thirty to forty feet deep taking measurements while other workers poured concrete for a parking garage.  Brayboy stated a backhoe was too close to the edge of the hole, and “[the hole] collapsed, and I was pulled out by several of my workers.”  This accident injured Brayboy’s middle to low back and right ankle.

Brayboy filed a workers’ compensation claim for this injury, received a settlement for this claim, and was given a five percent impairment rating for his back as well as five percent for his ankle.  Brayboy testified in deposition that his current back pain was “primarily in the same area” as the cave-in injury; however, at the hearing, he disputed the similarity of the injuries.  Additionally, Brayboy testified he suffered a pinched nerve in his right hip in 1996.  This was unrelated to the cave-in and was due to wearing a heavy tool belt.

Brayboy testified he did not report any of his prior injuries to WorkForce as he did not feel the injuries were relevant to a construction job.  Also, Brayboy stated he did not include the cave-in injury as it had “cleared up very quickly.”

The single commissioner found a compensable injury and Brayboy credible when testifying he filled out the employment application in adherence to his belief he was neither permanently impaired nor disabled.  The Workers’ Compensation Commission upheld the award of the single commissioner.  The circuit court affirmed.

WorkForce appealed and the court of appeals issued an unpublished opinion reversing.  Following a petition for rehearing, the court of appeals withdrew its opinion and requested certification under Rule 204(b), SCACR.  We granted certification.

II.

The existence of an employment relationship is a jurisdictional issue for purposes of workers’ compensation benefits reviewable under the preponderance of the evidence standard of review.  Glass v. Dow Chem. Co., 325 S.C. 198, 201-02, 482 S.E.2d 49, 51 (1997); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993); Givens v. Steel Structures, Inc., 279 S.C. 12, 13, 301 S.E.2d 545, 546 (1983); Cooper v. McDevitt & St. Co., 260 S.C. 463, 466, 196 S.E.2d 833, 834 (1973); Chavis v. Watkins,256 S.C. 30, 32, 180 S.E.2d 648, 649 (1971); Hon. Jean Hoefer Toal et al., Appellate Practice in South Carolina 170 (2d ed. 2002).

We must determine if Brayboy was an employee at the time of his injury and thus eligible for workers’ compensation benefits. Alewine v. Tobin Quarries, Inc., 206 S.C. 103, 109, 33 S.E.2d 81, 83 (1945) (“No award under the [Workers’ Compensation] Act is authorized unless the employer-employee relationship existed at the time of the alleged injury for which claim is made.  This relation is contractual in character . . . .”).  An employee is statutorily defined in section 42-1-130 of the South Carolina Code (Supp. 2008) as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written . . . .”  Brayboy asserts his status as an employee as a result of the contract for hire with WorkForce.  WorkForce relies on the principle that an employment relationship may be vitiated when there is a material misrepresentation in the employment contract.  Givens, 279 S.C. at 13, 301 S.E.2d at 546.

In Cooper, this Court set forth three necessary factors for a material misrepresentation in the employment application to vitiate the employment relationship:

(1) The employee must have knowingly and wilfully made a false representation as to his physical condition.
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring.
[and]
(3) There must have been a causal connection between the false representation and the injury.

260 S.C. at 468, 196 S.E.2d at 835.

We are firmly convinced that WorkForce has established all three factors.  First, Brayboy failed to report a host of prior back problems, as well as a prior workers’ compensation claim for an injury to his back.  The willful nature of Brayboy’s false responses pervades the record.  Brayboy admits he provided false information on the employment application.  The suggestion that Brayboy could make material misrepresentations on his employment application because he believed he was fit for construction work is a specious position.

Turning to part two of the test, WorkForce presented credible evidence it relies heavily on the employment application.  In this regard, WorkForce’s reliance is twofold: the employment application is important in the hiring and placement decisions.  Clearly, the questionnaire portion of the application protects the employer and employee.  Had Brayboy given truthful information, WorkForce would have been able to give him suitable job assignments, which would not have included heavy lifting.  Even Brayboy at one point conceded the importance of providing truthful information on the employment application when he stated, “[WorkForce] wouldn’t want to put a person with impairments or disabilities on a construction job that [he] couldn’t handle.”  We find WorkForce detrimentally relied on Brayboy’s fraudulent application.[1]  Small v. Oneita Indus., 318 S.C. 553, 554-55, 459 S.E.2d 306, 306-07 (1995) (noting an agent of the employer testified Small’s prior injury would affect job placement decisions, not hiring decisions, and affirming the denial of workers’ compensation benefits due to a false representation on an employment application).

Concerning the third factor, we find irrefutable evidence of a causal connection between the false information and the aggravation of his pre-existing back injury.  Brayboy conceded that the April 2003 injury was in “primarily in the same area” as the 1996 cave-in injury.  The April 2003 injury is also directly linked to his military disability, as evidenced by the VA raising Brayboy’s disability rating from twenty to forty percent as the “service connected condition(s) has/have worsened.”

Pursuant to Cooper, we hold Brayboy’s fraudulent responses on his employment application vitiated his employment relationship and barred his recovery of workers’ compensation benefits.

REVERSED.

[1] WorkForce provides temporary employment and, therefore, a WorkForce employee may be assigned to various jobs during their employment.  On the day of his alleged injury, Brayboy was assigned to heavy labor, the very type of assignment WorkForce claims it would not have given Brayboy had he been truthful in his employment application.