The South Carolina Workers’ Compensation system provides only for those injured while employees under the Workers’ Compensation statute. In Simmons v. SC STRONG, the South Carolina Court of Appeals found that Simmons was not a statutory employee, but rather a volunteer. South Carolina STRONG is a non-profit organization that seeks to rehabilitate those who have been convicted of crimes or suffered substance-abuse through a two-year program of structured work and job-training. SC STRONG is paid for the work the participants do, but the participants agree to not be paid for their work. SC STRONG gives the participants room, board, clothing, and job training.
Whether an individual is a statutory employee is a jurisdictional question determined by fact, and the standard of review for an appeals court is de novo. The Court of Appeals takes its own view of the preponderance of the evidence. Shuler v. Tri-County Elec. Co-op., Inc., 374 S.C. 516, 520, 649 S.E.2d 98, 100 (Ct. App. 2007), aff’d, 385 S.C. 470, 472, 684 S.E.2d 765, 767 (2009).
The Appellate Panel of the Workers’ Compensation Commission relied on three cases finding volunteers not to be statutory employees:
Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994) (finding unpaid daughter of store owner not an employee)… Doe v. Greenville Hosp. Sys., 323 S.C. 33, 39-40, 448 S.E.2d 564, 567-68 (Ct. App. 1994) (holding an unpaid volunteer candy striper was not the employee of a hospital);
McCreery v. Covenant Presbyterian, 299 S.C. 218, 223-24, 383 S.E.2d 264, 267 (1989) (finding an unpaid church volunteer not an employee of the church for workers’ compensation purposes), rev’d on other grounds, 303 S.C. 271, 400 S.E.2d 130 (1990).
Simmons counted by citing Wilson v. Georgetown County, 316 S.C. 92, 447 S.E.2d 841 (1994), for the proposition that statutory employees need not be paid in cash. In Wilson, the South Carolina Supreme Court disregarded the usual rule that jurors are not workers’ compensation employees, instead emphasizing that Wilson had worked at the direction of the clerk of court for the benefit of the county. The Court of Appeals distinguished Wilson from the Simmons case, reasoning:
The circuit court required Wilson to perform janitorial services in lieu of jury service. Simmons was an admitted volunteer who chose to participate in the SC STRONG program in lieu of serving his prison sentence.
It seems that the court is emphasizing the choice to volunteer, over the compulsion by the court, although it is not clear. In both cases, a person is working under the supervision of the court without cash pay. However, Wilson received nothing in exchange for his janitorial work, except excuse from jury duty (It is not clear how Wilson comes out ahead hear.). Simmons on the 0therhand received room and board, which unlike excuse from jury duty is available on the open market. Oddly, had Simmons been injured while working in prison, he would have been entitled to workers’ compensation.
The court does not consider whether Simmons was an apprentice, noting that Simmons waived the issue by raising it for the first time in his reply brief before the Court of Appeals and not raising it at all before the appellate panel. The case law generally provides that statutory employees must have some entitlement to pay, but the statute does specifically mention apprentices.
Simmons might have a separate remedy. Since Simmons is not a statutory employee of SC STRONG, it is possible that he could sue SC STRONG outside of workers’ compensation in ordinary negligence, or some other cause of action. However, outside of workers’ compensation, a plaintiff has to prove liability (e.g., the employers’ negligence), while being injured on the job is enough in workers’ compensation.by