South Carolina Workers’ Compensation Spring 2011 – Professor Elizabeth Luzuriaga
Charleston School of Law – Selected SC Cases and Statutes
A good Workers’ Comp (or any attorney) must always practice:
Read the Statute, the cases, then the annotation. The ANNOTATION is very importation. SKIP early cases like 1940 cases in annotations.
BRINGING A CLAIM
To Bring claim in SC, must be one of 3 things according to 42-15-10. 1) hired in SC. 2) Injured in SC. 3) Or have his employment in SC. The injured worker must be physically in the state of SC but his boss can be in another state and hire him over the phone.
– When in doubt…Rule in favor of coverage.
– Under 42-1-360 – Specific provisions for truck drivers and whether they are covered. Narrowed the coverage of independent contractor truck drivers.
Injury by Accident
I. “Arising out of” Employment
II. “In the course and scope of” employment
III. Special Scenarios
a. “Going to and coming from” Rule
b. Personal Comfort Doctrine
c. Benefit to the Employer
3 Different types of injuries that you can recover for under the SCWCA
1) Injury by Accident 42-1-160
a) by accident – unlooked for an unexpected event
b) arises out of à causal connection
c) course and scope of employment or
2) Occupational Disease 42-11-10 or
3) Repetitive Trauma 42-1-172
NOTE – the 3 criteria talked about below never fall under #2 or #3
BRINGING A CLAIM IN SC
O’Briant v. Daniel Const. Co. 279 SC 254 (1983)
OB applied for employment w/ DCC in Augusta, GA. He wasn’t offered a job then but was later contacted by the office manager, Fred Hunt. Hunt called OB from Augusta to OB’s home in Belvedere, SC. OB accepted the job and reported to work. He continued to work for DCC until laid off. Issue: Was the contract between OB and DCC made in SC therefore making him eligible for SC WC benefits? Holding: Yes, the K was made in SC.
Reasoning: Under 42-15-10, – Occupational Disease- a WC claim is authorized to be filed under the laws of the State where 1) the employee is hired, 2) the employee is injured, or 3) the employment is located.
“INJURY” AND “ACCIDENT” CASES
Hiers v. Brunson Const. Co. 221 SC 212 (1952)
Hiers died 3/8/50. BCC says his death didn’t arise out of and in the course of employment w/in the WC laws. HH was a carpenter for BCC and was a super for them. He visited the doctor for a cold. He eventually developed pneumonia and died. Issue: Did HH’s injuries leading to his death arise out of his course of employment w/ BCC? Holding: Yes.
Sturkie v. Ballenger Corp. 268 SC 536 (1977)
Sturkie suffered an alleged injury to his heart and respiratory system which later developed into emphysema while working in Puerto Rico. The ultimate issue is whether he sustained an “injury by accident” resulting from exposure to altitude, climate, and working conditions. Issue: Did Sturkie sustain an “injury by accident” due to working conditions in PR? Holding: Yes.
Grayson v. Gulf Oil Co. 292 SC 528 (1987) LOOK FOR EXAM QUESTION COMING FROM HERE ALSO, is good to be able to prove cases when occupational statute points otherwise…too
Procedure: Commissioner found that claimant sustained injury by accident resulting in total disability as a result of petrochemical sensitivity. The full commission affirmed but the Ct of Common Pleas reversed and claimant appealed. Facts: A single commissioner found that Grayson sustained an injury by accident arising out of and in the course of her employment which resulted in total disability from 1/4/84-6/4/85 (when the order was filed) and thereafter until maximum improvement has been reached. The full commission affirmed but the Ct of Common Pleas reversed on the grounds that there was no substantial evidence of record to support the finding of accidental injury.
Grayson began working for GOC in 1965. She testified that between 1982-1983 substantial quantities of gas evaporated. According to her, approximately 300K gallons were lost to evaporation. In Fall of 1982, Grayson began manifesting symptoms of a dysfunction in her immune system caused by chemical sensitivity to gasoline products. In late October 1983 she became violently ill and in January 1984 she took sick leave for about a month. She returned to work on 2/17/84 only for about four days when she became ill again. On 2/17/84 she was taken to a hospital by ambulance.
Dr. Lieberman testified that Grayson has multi-system disease caused by chemical sensitivity. He said her symptoms could “cascade” into the symptoms she has now.
GOC argues that the disability is simply an occupational disease resulting from chronic exposure to chemicals over 19 years and not the result of an accident as used in the law of WC.
Issue: Was the sickness of Grayson an accident as defined by statute? Holding: Yes.
Reasoning: The question of whether an “accident” occurred is one of law. The word “accidental” qualifies and describes the injuries contemplated by a statute as having the quality or condition of happening or coming by chance or w/o design, taking place unexpectedly or unintentionally.
Sturke ruled that cases clearly establish “a recognition in SC case law of diseases resulting from exposure constituting an injury by accident where the result is unexpected. An exacerbation of a preexisting disease arising out of or in the course of employment is compensable.” If one becomes ill while at work from natural causes, the condition is not accidental since it is a natural result of consequence and might be termed normal and to be expected.
Dispo: The court holds that there was a cascade as defined by Dr. Lieberman and that this was an accident w/in the meaning of WC law. Having held that it was an accident, there is evidence to support the full commission. The appealed order is reversed and remanded for judgment for Grayson.
Sigmon v. Dayco Corp. 316 SC 260 (1994) —–Don’t necessarily need a causative event.
In 1992, Sigmon knelt to tighten bolts on a machine. His knee locked when he stood. Thereafter a doctor performed arthroscopic surgery on his knee. He alleged his injury was caused by an aggravation of an old injury he suffered in 1959 while playing football. Issue: Was the injury an “injury by accident”? Holding: Yes.
“Injury by accident includes not only an injury the means or cause of which is an accident, but also an injury which is itself an accident; that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, w/o the prior occurrence of any external event of an accidental character. No slip, fall, or other fortuitous event or accident in the cause of the injury is required; the unexpected result or industrial injury is itself considered the compensable accident.” Stokes.
Creech v. Ducane Co. 320 SC 559 (1996)
Creech suffered a back injury while working for D in 1989. He received 35% permanent partial disability. On 7/12/93, P claimed he re-injured his back while reaching down to pick up a filter rack that weighed less than one pound. He was treated by doctors.
Issue: Did Creech sustain an “accident” to his back? Did the Cir Ct err in determining that he didn’t?
I. Injury by Accident —-I think will be important –noted on 4/20/11
The focus for determining if it is an injury by ac
m stating that he was outside the scope of his employment at the time of the accident. He testified that he had been authorized to train prospective employee Marlene Gadson to drive a dump truck. On the day of the accident she had a disagreement w/ Houston and ceased her training at 11am. At some point Houston picked up Leslie Brown and let her drive the truck. Eventually she wrecked it like a typical woman.
Issue: 1) Is there substantial evidence to support the appellate panel’s finding that claimant allowed an unauthorized person to drive the truck which resulted in an impermissible deviation from his duties?
2) Did the Cir Ct and appellate panel err in determining the C didn’t sustain an injury by accident arising out of and in the course of his employment? Holding: 1) Yes. 2) No, the ruling was correct.
Hall v. Desert Aire, Inc. 376 SC 338 (2007)
Hall began working for DA in 1997 as a regional sales manager and was a national sales manager at the time of his injury. His employment necessitated an average of four days of business travel every week. No part of his trip was for personal purposes. After a dinner party where business was being discussed, Hall was injured in a vehicle accident not far from the home of the dinner. He was still talking of business when the accident happened. Issue: Did the injury arise out of and during the course of his employment? Holding: Yes. – 42-1-160.
42-9-20 – Economic Model
Only used when its not a scheduled member, and when it is multiple body parts.
Look to Wigfall for more explanation on Economic model…
When you write a brief or draw an order, there is NO RIGHT outcome.
Just hit the issue presented, not “all of the stuff.” Be succinct, thorough, and address the issue at hand.
AWW before accident and AWW after accident.
Doctors give impairment ratings, Commissioners give permanent partial disability ratings.
709.42 is the max comp rate of any accident in 2011 – prob don’t need to know.
Ex. Hurt right hip, statute 42-9-30, scheduled member model is used. Worth 280 weeks. Dr. gives 10% permanent rating. He is at MMI. Always gonna have these problems so perm impairment rating of 10%. He is 43yrs old, 3rd grade education, and is a laborer. First guy, 28yr old, 1yr of college, chemical processor. Both have the same AWW of $700. CR is 466.69
First guy, commissioner give him – (Remember Commissioner will give him more than doctor and he is younger and he has education, and can do more, he is probably at low end of pay scale because of his age, probably 17%-20% permanent-partial disability award. (PPD Award). Which we say is 17% PPD
Take the full schedule of 280 weeks x 17%= 47.6 weeks. 47.6 x 466.69= $22,214.44 which is what you would pay him in a LUMP SUM award. BAMMMMM!!!!
Now the 43yr old: 35% of 280 weeks which equals 98 weeks then multiply that by 466.69 which equals $45,735.62 – remember, he doesn’t have the education or the youth, etc. to come back to work, not as marketable.