“Employee” Defined Under South Carolina Workers Compensation Law

The South Carolina Workers’ Compensation Act (the “Act”) defines “employee” as “every person engaged in an employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written…, but excludes a person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer…”  Further, the Act defines “employment” to include “employment by the State, all political subdivisions thereof, all public and quasi-public corporations therein and all private employments in which four or more employees are regularly employed in the same business or establishment.

Next, the Act also deals with legally and illegally hired aliens, minors, and certain prisoners injured while in private employment.  In Curiel v. Environmental Management Services, the Court held that the federal Immigration Reform and Control Act of 1986 (IRCA) did not preempt state law to preclude benefits under the Act.  The Act was amended in 1976, to allow sole proprietors and partners of a business whose employees are eligible for benefits to elect to be included as employees if (1) they are actively engaged in the operation of the business and (2) they notify the insurer of their election.

Third, State officers and employees are also specifically covered unless they are on the General Assembly, or appointed by the Governor.  Officers and employees of municipal organizations and political subdivisions of the State will be included minus those who are (1) elected by either the people, council, or other governing body of the municipal corporation or political subdivision; (2) who serve in strictly administrative capacities, and (3) who serve for a definite term of office.

Finally, the definition of the term “employee” also includes members of the State and National Guard while they are “performing duties in connection with the membership except duty performed pursuant to Title 10 of the United States Code.  And, the only employees who are exempt from the Act are listed in Sections 42-1-360 and 42-1-370, and they may elect to come under the Act, and later may chose to withdraw.  To withdraw however, the employer may give notice in writing to the Commission or to his insurer who must then give notice to the Commission.

Therefore, these little idiosyncrasies can affect how one is classified under the Workers’ Compensation Act in South Carolina.  This is why it is so imperative that when you have a WC claim, to find lawyers who have been in the game for over 20 years.  At Reeves, Aiken & Hightower, LLP, we have the experience necessary to succeed in a workers’ compensation claim.  So, if you or a loved one has a question, call our Baxter Village office in Fort Mill, South Carolina to schedule a consultation.  You can reach us at 803-548-4444, or toll-free at 877-548-5999.  We will be happy to assist you in any way we can.

SC Supreme Court Disallows Testimony to Worker’s Advantage-SC Workers’ Comp Lawyer

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.

Dancer Denied Employee Status-Rock Hill Workers’ Comp Attorney

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.

1. 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.
2. 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.
3. 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.
4. 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.

Read more →