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
If you or someone you know has been injured or killed in an accident on the job, you need a serious workers’ compensation law firm. Contact our workers’ compensation attorneys at 877-374-5999. We’ll give you the help you need to get the recovery you deserve.
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.
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.
Many people are told that workers’ compensation hearings are very informal and “laid back.” While they are less structured than jury trials, hearings are nevertheless a legal proceeding with all of the applicable rules of civil procedure and evidence. Many lawyers new to workers’ compensation claims are misled into this “easy” atmosphere and can quickly find themselves in trouble. In the case below, the proceedings became somewhat muddled, and a case that started all the way back in 1999 made its way to the SC Court of Appeals in 2012. Better make sure your attorney is a seasoned workers’ compensation litigator. No one wants to be involved in appeals for years. They just want justice and the benefits they deserve under the law.
The workers’ compensation attorneys at Reeves, Aiken & Hightower LLP are highly experienced with over 23 years of workers’ compensation history. For more information about our firm, please visit www.rjrlaw.com or call us directly to speak with an attorney at 877-374-5999.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Gaines Adams, Respondent,
H.R. Allen, Inc., CNA, and Zurich North America, Defendants,
Of whom H.R. Allen, Inc. and Zurich North America are Appellants,
and CNA is a Respondent.
Appeal from Greenville County
Edward W. Miller, Circuit Court Judge
Opinion No. 4967
Heard March 20, 2012 – Filed May 2, 2012
VACATED AND REMANDED
James Paul Newman Jr., Weston Adams III, Helen F. Hiser, and Erroll Anne Y. Hodges, all of Columbia, for Appellants.
Alan Randolph Cochran, of Greenville; James P. Newman and Andrew E. Haselden, both of Columbia, for Respondents.
PER CURIAM: Appellants, H.R. Allen, Inc. (Employer) and Zurich North America (Zurich), appeal from an order of the circuit court affirming the Workers’ Compensation Commission’s Appellate Panel’s (Commission’s) award of benefits to Respondent Gaines Adams.
Although Appellants raise six issues on appeal, the threshold issue of procedural due process is determinative. We hold procedural due process requires that the parties to a rehearing must be provided an opportunity to be heard and to confront and cross-examine witnesses. Accordingly, we vacate the circuit court’s ruling and remand the case to the Commission to conduct a de novo hearing on the merits.
On March 15, 1999, Adams fell from a ladder, shattering a bone in his left heel. Dr. Michael Tollison performed an ORIF—open reduction internal fixation. Adams returned to “light duty” on August 30, 1999. On December 17, 1999, Dr. Tollison determined Adams had reached maximum medical improvement (MMI) and discharged him with twenty-four percent impairment of the left foot. Dr. Tollison’s progress note stated that in the future Adams “may require a subtalar joint fusion with tribal bone graft.” Adams’s work restrictions required him to avoid climbing ladders, walking on roofs, carrying heavy items, and working on scaffolds.
Adams saw Dr. Tollison in 2001 for hypersensitivity in his left foot. Adams’s condition improved; however, Dr. Tollison again noted that Adams likely would require subtalar joint fusion. Adams did not visit Dr. Tollison again until October 2006.
In July 2006, Employer assigned Adams to work part-time installing overhead lighting fixtures at a distribution center. On October 17, 2006, Adams returned to Dr. Tollison with increased pain and lack of mobility in his left ankle. Dr. Tollison diagnosed Adams as having left, post-traumatic hind foot arthritis; left, sural nerve neuralgia; traumatic arthropathy involving ankle and foot; and mononeuritis of the lower limb. Adams returned to work with additional permanent restrictions and a letter from Dr. Tollison that stated: “If employer has no work available according to these restrictions, it is up to the employer to release [Adams] from work.” On October 26, 2006, Employer terminated Adams’s employment, stating “no permanent light duty work [was] available.”
On October 20, 2007, Adams filed a Form 50 contending he had sustained an accidental injury on October 26, 2006 due to “repetitive walking and standing on unlevel/hard surfaces.” CNA denied that Adams’s condition was caused by “a new accident”; asserted that compensability of any injury arising out of the March 1999 accident was barred; and stated CNA was not Employer’s workers’ compensation carrier on the date of Adams’s alleged injury. Adams subsequently added Zurich, Employer’s workers’ compensation carrier from December 13, 2005 to December 13, 2006, as a defendant.
The single commissioner conducted a hearing on May 7, 2008. Following the hearing, the commissioner left the record open for Dr. Tollison’s deposition. On June 16, 2008, the single commissioner ruled that Adams had sustained “a compensable injury, whether it is considered repetitive trauma culminating in the last injurious exposure on October 26, 2006[,] or whether this is considered a[n] October 26, 2006 on-the-job accident.” The commissioner dismissed CNA and found Zurich liable to Adams for benefits related to the October 26, 2006 injury, including fusion surgery and temporary, total disability benefits following surgery.
After Zurich requested review of the single commissioner’s decision, it became evident that the reporter’s equipment had malfunctioned and portions of the hearing were inaudible. Adams asked the Commission to remand the case to the single commissioner “to retake such testimony as may be necessary to replicate the record.” Thereafter, the Commission ordered: “[T]his matter is remanded to Commissioner Williams for rehearing.”
The single commissioner conducted the rehearing on January 15, 2009. Each of the participants, with the exception of Adams, was given a copy of the original transcript. Shortly after Adams began testifying, Zurich’s counsel repeatedly objected to testimony that it alleged was “outside the scope” of the original transcript. When CNA objected to Zurich’s attempt to follow up on Adams’s answer, Zurich explained: “But his answer wasn’t the same as it was in the original.”
Zurich asked the single commissioner for permission to question Adams’s supervisor about a description of the working conditions that had been posed to Dr. Tollison during his deposition. The commissioner denied Zurich’s request, stating:
The Single Commissioner: I’ll deny that, obviously. I already issued a ruling in this case based on the evidence. And I heard the evidence at the last case, so I didn’t need a transcript to make any ruling. So, I’m going to deny that motion right now.
Zurich: If we could just place that on the record, that we would like to have them address the hypothetical that the Claimant’s own attorney gave after the hearing so we couldn’t address it at the [first] hearing because he didn’t give it until afterward.
The Single Commissioner: I’m going to deny that, obviously, because my ruling wasn’t based on any of that. You can move on.
Following the rehearing, the single commissioner reissued the prior order. Zurich filed an application for review alleging numerous errors, including a contention that significant irregularities had occurred during the rehearing. On June 26, 2009, the Commission unanimously adopted the single commissioner’s order; thereafter, the circuit court conducted a hearing and affirmed the Commission’s order in its entirety. This appeal followed.
ISSUE ON APPEAL
Did the Circuit Court err in upholding the hybrid manner in which the single commissioner conducted the rehearing?
Appellants contend they “were forced to repeat the question portion of the original hearing, but the witnesses were allowed to answer in any way they saw fit, often providing new testimony.” Appellants argue that while Adams was allowed to answer questions freely, they were not allowed to ask “routine follow-up questions in response to new testimony.” They assert this “hybrid manner” of conducting the rehearing was “at worst a violation of Appellant’s due process rights and at best, highly unfair.”
Adams contends that the trial court has discretion to adopt “the most effective method of reconstruction” of a transcript. He additionally contends, “Appellant[s] suffered no consequential prejudice.”
Where portions of stenographic notes are lost prior to transcription, it is appropriate for the judge to accept affidavits of counsel and the court reporter to determine what transpired. China v. Parrott, 251 S.C. 329, 333-34, 162 S.E.2d 276, 278 (1968). However, the reconstructed record must allow for meaningful appellate review. State v. Ladson, 373 S.C. 320, 321, 644 S.E.2d 271, 271 (Ct. App. 2007). “A new trial is therefore appropriate if the appellant establishes that the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review.” Id. at 325, 644 S.E.2d at 274 (citations and internal quotation marks omitted).
The South Carolina Constitution provides that in procedures before administrative agencies: “No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard . . . .” Art. I, § 22 (2009 & Supp. 2011). The South Carolina Supreme Court has explained:
“Procedural due process requirements are not technical; no particular form of procedure is necessary. The United States Supreme Court has held, however, that at a minimum certain elements must be present. These include (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.”
In re Dickey, 395 S.C. 336, 360, 718 S.E.2d 739, 751 (2011) (quoting In re Vora, 354 S.C. 590, 595, 582 S.E.2d 413, 416 (2003)).
The Administrative Procedures Act (APA) requires that, in a contested case, all parties must be afforded the opportunity for a hearing. S.C. Code Ann. § 1-23-320(A) (2005 & Supp. 2011). The APA additionally requires: “Opportunity must be afforded all parties to respond and present evidence and argument on all issues involved.” S.C. Code Ann. § 1-23-320(E) (2005 & Supp. 2011). Moreover, the APA provides that, in a contested case, “[a]ny party may conduct cross-examination.” S.C. Code Ann. § 1-23-330(3) (2005).
In State v. Mouzon, the South Carolina Supreme Court distinguished between “trial errors, which are subject to harmless error analysis,” and “structural defects in the constitution of the trial mechanism, which defy analysis by harmless error standards.” 326 S.C. 199, 204, 485 S.E.2d 918, 921 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279 (1991)). In LaSalle Bank Nat’l Ass’n v. Davidson, the court held that the failure of a judge to attend a mortgage foreclosure proceeding was a structural defect that violated the Appellants’ “constitutional guarantee to procedural due process.” 386 S.C. 276, 277, 688 S.E.2d 121, 121 (2009). There, the court ordered a new trial, stating: “The purported hearing was a nullity, and the resulting order must be vacated. The judge’s absence from the hearing deprived the [Appellants] of the opportunity to be heard and, thus violated their constitutional guarantee of procedural due process.” Id. at 281, 688 S.E.2d at 123; see also U.S. v. Marcus, 130 S. Ct. 2159, 2164 (2010) (stating that “certain errors, termed ‘structural errors,’ might ‘affect substantial rights’ regardless of their actual impact on an appellant’s trial”).
In this case, a comparison of the two transcripts supports Appellants’ allegation that the rehearing allowed Adams an opportunity to “amplify” the responses he provided at the first hearing, while Appellants were not provided the opportunity to cross-examine Adams on new responses. We are concerned by the single commissioner’s decision to provide all participants—except Adams—with a copy of the original transcript. In our view, the commissioner was required to treat all witnesses similarly. Had Adams been provided a copy of the original transcript, he—like the other witnesses—would have been in a position to read his transcribed responses and to complete the inaudible portions of the original testimony. Instead, Adams was provided the unique opportunity to “freely respond,” while Appellants were not allowed to freely cross-examine him.
We agree with Appellants’ contention that “the preferable options would have been to have reconstructed only the incomplete portions of the original transcript or to have remanded for an entirely new hearing.” While we agree the trial court has discretion in determining how to reconstruct missing portions of a transcript, this discretion must lie within the limits required by procedural due process. Here, although the Commission ordered a rehearing, the single commissioner conducted the subsequent hearing in a hybrid manner that was neither a true rehearing of the matter on the merits nor a straight-forward reconstruction of the original transcript. Such a hybrid approach to rehearing constitutes a structural defect that cannot be reviewed under the harmless error standard. While we are mindful of the importance of judicial efficiency, we find the hybrid rehearing procedure in this case violated Appellants’ right to procedural due process.
Based on the foregoing, we vacate the circuit court’s order and remand the case to the Commission to conduct a de novo hearing on the merits.
VACATED AND REMANDED.
PIEPER, KONDUROS, and GEATHERS, JJ., concur.
 Any reference to a problem with Adams’s right lower extremity is a scrivener’s error; Adams sustained injuries to his left foot only.
 Respondent CNA was Employer’s workers’ compensation carrier, and this was an admitted accident.
 We decline to address Appellant’s remaining issues on appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).