In a new workers’ compensation decision, the South Carolina Supreme Court actually excluded from the substantial evidence standard speculative testimony that benefited the employer, not the employee.
In review of workers’ compensation cases, the standard for reviewing decisions of the workers’ compensation commissioners is whether there is substantial evidence in support.
In this case, Hutson v. SC State Ports Authority, the only issue on appeal was whether a specific bit of testimony was speculative, and thus unable to support a ruling for wage loss.
Facts: Hutson, the employee, had been a crane operator for the port authority. He was injured while trying to remove a container from a ship, presumably manually rather than with the crane. The injury was to his lower back and legs. After shrugging the injury off as a pulled muscle, his doctor diagnosed him with a disc bulge at L2-3 and spondylosis at L5-S1. His treatment included steroid injections, physical therapy, and use of a back brace.
The problem: In testimony, Hutson mentioned that he dreamt of starting a restaurant with the workers’ compensation money he was expecting to get. This is a problem because although Hutson had never owned or worked in a restaurant and had worked as a crane operator most recently, operating a restaurant requires standing up which would defeat wage loss if substantiated.
Obviously, this is quite speculative, but the single commissioner, the workers’ compensation commission panel, and the court of appeals accepted it as substantial evidence to defeat claim of wage loss. The Supreme Court rejected the testimony as unsupported by fact and only by the injured employee’s overly hopeful testimony. It preferred use of the facts that he lost a great deal of the use of his back and the facts that he no restaurant experience and had lost the ability to work in his lucrative crane operator gig.
Fort Mill Workers’ Compensation Attorney
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In Belton, South Carolina, near Anderson and Clemson, a 47-year-old worker was crushed to death in an accident at a South Carolina scrap metal yard, while he was on the job. Heavy equipment equipment ran him over .
The Anderson man was run over by a machine, a track hoe, loading a truck with scrap metal.
The Coroner said the trackhoe was lifting metal in a tight space. In the tight space either the injured victim or the machine operator failed to realize what the other was doing. Despite no reporting of foul play, both the Sheriff’s Office and the Occupational Safety and Health Administration (OSHA) are investigating the death, possibly wrongful.
Rock Hill Workers’ Compensation Attorney
If you or someone you love has been injured or killed on the job, you need a serious workers’ compensation attorney. Contact the attorneys of Reeves, Aiken & Hightower at 877-374-5999. Getting your best recovery depends on the attorney you choose. Call now.
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.
Workers’ compensation appeals are hard to win. They’re that way by design. As a matter of policy, courts and the legislature make sure that administrative decisions are generally left to administrative courts. Workers’ compensation is generally left to the Workers’ Compensation Commission because that is where it is supposed to be by law. The idea is that the Workers’ Compensation system should be as streamlined and as cheap and easy to administer as possible. So, the legislature and courts want to keep workers’ compensation cases out of the normal law courts, and they chiefly do that by making appeals hard to win and simplifying procedure, e.g. if there is any evidence to support a workers’ compensation commission decision, the decision will be upheld on appeal, and the rules of evidence simply do not apply.
Watson v. Xtra Mile Driver Training
This pattern is exemplified in Watson v. Xtra Mile Driver Training. In that appeal from an Appellate Panel of the Workers’ Compensation Commission, Watson made three arguments, all of which the majority of the court rejected and one of which was accepted by the dissent.
- That evidence of a computer report contradicted by more reliable evidence on the record should not have been admitted.
- That the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled.
- That the Workers’ Compensation Commission erred in crediting temporary total disability (TTD) payments made after maximum medical improvement (MMI) against the amount payable to Employee for permanent partial disability.
The most important argument here, and the only one seriously contestable was whether the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled. The dissent agreed with Employee on that point. The rules of evidence simply do not apply before the Workers’ Compensation Commission, and it is a settled matter that after maximum medical improvement (MMI), employees are no longer entitled to temporary total disability payments.
Permanent and Total Disability
The standard of review in determining whether the the Workers’ Compensation Commission erred in determining that the employee was not permanently and totally disabled was the “substantial evidence” standard. The commonly cited gloss on this standard is:
“Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusions the [Appellate Panel] reached in order to justify its actions.”
Broughton v. S. of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct. App. 1999). In this case, there was pretty strong evidence of permanent and total disability, but the majority declines to overturn the Workers’ Compensation Commission under the substantial evidence standard. The key facts are:
- “job factor restrictions included:
(1) no continuous standing for more than twelve minutes;
(2) no continuous sitting for more than three minutes;
(3) no continuous walking for more than 0.1 miles;
(4) no pushing more than twenty pounds;
(5) no pulling more than twenty pounds;
(6) no stopping; and
(7) no crawling on her hands and feet.”
- “The Dictionary of Occupational Titles places Ms. Watson’s occupation as a Director of Placement in the sedentary strength category. Therefore, Ms. Watson meets these strength requirements and may return to work as Director of Placement.”
- Employee testified that she could drive sitting down a solid 35-45 minutes.
- A vocational analyst testified that the results of the FCE were inconsistent and that Employee was permanently and totally disabled.
Is there substantial evidence here to support the finding that Employee is not permanently and totally disabled?
A further wrinkle is that Permanent and Total Disability can be found under either of two statutes: 42-9-10 and 42-9-30(21).
42-9-10 provides permanent and total disability “when the incapacity for work resulting from an injury is total,” i.e. when the ability to earn a living is “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.”
42-9-30(21) provides permanent and total disability for “a claimant with 50% or more loss of use of the back” without proof of loss of earning capacity.
The dissent would have found that the Workers’ Compensation Commission was in error to have found no permanent and total disability in both sections.
The SC Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
If you or someone you know has been injured or killed on the job, whether in Columbia or elsewhere in South Carolina, you need the help of a serious workers’ compensation attorney like those at Reeves, Aiken & Hightower. Call us at 877-374-5999, or contact us at this link, to schedule a free, private consultation. We can help you evaluate your claim and get you the recovery you deserve.