fbpx

Who is an Employee in South Carolina for Purposes of Workers’ Compensation?

Worker’s Compensation has been a hot topic in recent South Carolina cases due to ever-changing laws constantly altering how an injured employee may be compensated when injured “on the job.”

Take, for example, Simmons v. SC STRONG, in which the Appellant is arguing that the South Carolina’s Worker’s Compensation Commission (hereafter referred to as “Appellate Panel”) erred when it failed to find that Simmons was an employee of the SC STRONG.

The SC STRONG program is a residential, non-profit South Carolina program, in which “former substance abusers, homeless adults, and ex-convicts” are afforded educational and vocational opportunities to “get back in their feet.” Simmons became a member of SC STRONG in May of 2012, whereby he signed what is referred to as a “Resident Statement” which contained in pertinent part the following:

(1)Any remuneration which was, or in the future will be, due because of work which I have performed, or will perform, for South Carolina STRONG, I donate to South Carolina STRONG. This donation is done freely, and without duress.

(2)Any work, which I have done, or will do, for South Carolina STRONG, is done as a volunteer without any expectation  of remuneration.

(3)Not withstanding paragraphs (1) and (2) above, if any governmental body  determines that I am not a volunteer or cannot donate to South Carolina STRONG  any remuneration which might be due to me from South Carolina STRONG, then I state that I was more than adequately paid by room, board, and services that I received from South Carolina STRONG including counseling, vocational training, entertainment, clothing, medical and dental services, education, rehabilitation, transportation, recreational and legal services, which have, and will be, provided to me by South Carolina STRONG free of charge for the duration of my time as a  resident of South Carolina STRONG.” See Simmons v. SC STRONG

As a member of the SC STRONG program, Simmons was provided the opportunity to work at various construction and landscaping projects with advisers from SC STRONG. Things seemed to be looking up for Simmons until January 14, 2011, where Simmons slipped on an ice patch and fell thirty feet from the roof at the SC STRONG job-site. Simmons had multiple medical issues from the fall, specifically, a C-5 anterior superior end plate fracture and some soft tissue laceration/hematoma. The following day, Simmons was rushed back to the ER when he was complaining of foot pain and facial swelling. Simmons was provided with a type of “collar” to wear around his neck as the fractures healed, and was told that the injury was “not serious.”

A month later, on February 17, 2011, Simmons filled out a Form 50, stating his injuries while on the SC STRONG  job site. He requested temporary disability benefits based on rates of the employees in similar situations.

On March 2, Hartford Underwrites Insurance Company (Hartford), SC STRONG’s insurance carrier, in turn filed a Form 51 whereby they denied Simmons as ever being one of SC STRONG’s employees. Subsequently, on March 16, Hartford amended its Form stating that Simmons did not sustain an injury that was “compensable” during the course of the alleged employment. The Respondents then filed an additional amendment further denying Simmons employment with SC STRONG.

A hearing was held on May 25, where Simmons alleged that he was provided room, board, and daily work schedules and instructions by SC STRONG; that he was in fact an employee; and that he was working for SC STRONG on January 14, when he fell from the roof. After the accident, Simmons contacted an attorney whereby he was subsequently “forced to leave SC STRONG.”

The President of SC STRONG rebutted Simmons allegations stating that “SC STRONG receives compensation for the construction services provided by its participants.” He further stated the SC STRONG model “involves a sustainable concept whereby the work training that we do for our residents is utilized as an enterprise to help generate funds that run the organization.”  The President then testified that the room, board, and food provided to Simmons as an SC STRONG participant was not in lieu of wages. The employees apparently are not allowed to seek independent work while enrolled in the program; yet they are not permitted to have an expectation of wages.

Thus, the conclusion of the hearing held that Simmons was not entitled to worker’s compensation benefits because he was considered a “volunteer” worker and not an “employee of SC STRONG.”

Accordingly, if Simmons had been considered an employee of SC STRONG, he would have been entitled to the temporary disability he requested. Simmons then appealed the decision. Ultimately, the case turned on the standard of review that the Commissioners are required to use.

The standard used was found in Schuler v. Tri-County Elec. Co-op, Inc.and found that “The existence of an employer-employee relationship is a factual question that determines the jurisdiction of the Workers’ Compensation Commission.” Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007),  “When an issue involves jurisdiction, the appellate court can take its own view of the preponderance of the evidence.” Id. “In determining jurisdictional questions, doubts of jurisdiction will be resolved in favor of inclusion of employees within workers’ compensation coverage rather than exclusion.” Id.

Moreover, under the Worker’s Compensation Act, an employee is defined as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, . . . whether lawfully or unlawfully employed…”S.C. Code Ann. § 42-1-130 (Supp. 2012).

Under Schuler the court held that if a person is found to be an employee, then they have a right to payment for the services they provide. Shuler v. Tri-County Elec. Co-op, Inc., 385 S.C. 470, 473, 684 S.E.2d 765, 767 (2009)

The Court of Appeals went back and forth using the aforementioned language to determine whether or not Simmons was considered an employee or a “volunteer.” Pursuant to the Resident Agreement, Simmons agreed that he was a volunteer and thus owed no compensation for his work aside for the room and board discussed above. The court found that the “working experience” Simmons enjoyed was not for expected compensation, but rather Simmons was “performing services as a volunteer in a rehabilitative program to improve his skills and avoid incarceration.”

Simmons attempted to use Wilson v. Georgetown County to support his position that South Carolina does not require a particular form of payment to establish an employee/employer relationship. Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994). In Wilson¸ the court held that Wilson was an employee of the County because his work was specifically for the benefit of that county, and Wilson was under the control and direction of the Clerk of Court.

However, the Court of Appeals finds the Wilson case distinguishable because Simmons has admitted that he chose to enroll in SC STRONG in lieu of incarceration, and Wilson was simply asking to not sit as a juror due to religious beliefs.

Thus, due to Simmons admittance of the foregoing facts, the Appellant Panel’s finding that Simmons is not an employee of SC STRONG is affirmed and Simmons is denied all workers’ compensation coverage.

After being injured at work, many of our clients are initially afraid of losing their jobs and are not sure if they even want to pursue a claim. In these difficult times, these are good people in tough financial situations that need help. Attorney Robert J. Reeves has practiced workers’ compensation law for over 23 years and knows how to protect your rights as well as your job. As a former workers’ compensation insurance defense lawyer, he knows what a carrier needs to quickly evaluate your claim and get your benefits started. Contact us today at 803-548-4444, or toll free at 877-374-5999