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.