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Workers Compensation
Charleston School of Law
Luzuriaga, Elizabeth B.

WC Review Outline

I.       Introduction
A.    Complainant can get 3 things under WC law
1.      Lost wages while out of work
2.      Medical treatment benefits: mileage, prescriptions, etc.
3.      Permanent Disability, once treatment is over
B.     No fault system
1.      White v. J.T. Strahan Co.
a)      No fault: Employee doesn’t have to prove that employer was at fault (cuts down litigation and enhances employee moral)
b)      Can elect to be covered by the act.
C.     Any reasonable doubts as to construction of the Act should be in favor of coverage. (R.67-201) Lester v. SC Workers’ Comp Comm.
II.    Who is Covered?
A.    Jurisdiction
1.      Conferred by employer-employee relationship – brings individual into provisions of Act
B.     Employer
1.      §42-1-140 “employer” defined
2.      Employer under act if they have 4 or more employees w/in SC.
3.      “Alter ego” – only corporate owners and officers may be alter ego of company.
4.      Statutory employer
a)      Whether an employee is a statutory employee under the Act is a question of law for the court. §42-1-400
b)      Worker is stat employee if any of the 3 factors is show: (1) whether activity is important part of trade or business, (2) whether activity is necessary, essential, and integral part of trade; and (3) whether activity has been performed by employees of principal employer. 42-1-400 (Abbott v. Limited Stores)
c)      Exclusive remedy statute: if you are entitled to workers comp benefits you cannot turn around and sue your employer in tort.
d)     Upstream subcontractors may be statutory employer of an employee of a sub-sub-contractor
C.     Employment
1.      §42-1-150 “employment” defined
a)      Employment in which 4 or more employees are regularly employed in the same business or establishment.
2.      “Regularly employed”
a)      Employment of the same number of persons through the period w/ some constancy. 
b)      §42-1-360: Act doesn’t apply to casual employee or any person who has regularly employed in service less than four employees in the same business w/in the State.
(1)     “Casual” (42-1-130) means not permanent or periodically regular, but instead occasional or by chance and not a usual course of business.
(2)     Employment which cannot be characterized as permanent or periodically regular, but occurs by chance is “casual employment.”
c)      Consideration should be given to both duration and regularity of recurrence.
d)     Employer-employee relationship is examined at time of injury.
D.    Employee
1.      §42-1-130 “employee” defined
a)      employee-employer relationship is a jurisdictional issue
b)      K is established if the parties recognize each other as employer and employee
c)      “Employee” means every person engaged in an employment under any appointment, contract for hire or apprenticeship, express or implied, oral or written…” 
(1)     “Hire” typically means payment of some kind.
d)     Gratuitous workers are not employees under workers comp acts; are not employees under K for hire.
e)      The test to determine whether a person is an employee covered by the Act is whether the employer has the right to direct the manner in which the work is accomplished. Factors to consider: (1) employer’s right to exercise control over work and how it is performed, (2) method of payment, (3) who furnishes equipment, and (4) employer’s right to terminate.
f)       Person engaged to do work for another as an independent contractor is not covered by the Act if he contracts to do particular work according to his own knowledge, skill, judgment, means, and methods, free from employer’s control except as to the result of his work.
2.      Casual/Gratuitous Employee §42-1-360
a)      Casual: irregular, sporadic, not permanent, not covered by Act (seen in -130 and -360)
b)      Sole proprietor: can opt in to be covered under Act; does not have to be in writing;
(1)     Burden is on sole prop. to opt in and communicate election to carrier
(2)     Johnson, 354S.E.2d 791 (S.C. Ct. App. 1987): election to be included can be oral
c)      Gratuitous – not covered under Act
(1)     Contract for hire typically means some form of payment.
(2)     Gratuitous means not being paid; thus, no contract for hire.
3.      Volunteers – not covered
4.      Statutory Employee (good exam question)
a)      Not an employee but by way of the statute become an employee and are covered under the Act
(1)     Affords the benefits of compensation to the men who are exposed to the risks of the owner’s business.
b)      §42-1-400 to -460
(1)     §400 When any person referred to as “owner” undertakes to perform or execute any work which is a part of his trade and contracts w/ another person for the execution of whole or part of the work undertaken, the owner shall be liable to pay for any workman employed which he would have been liable to pay if they had been immediately employed by him.
c)      3 Tests to determine whether the actions of an employee is sufficient to make him a “statutory” employee; Must meet one test: (1) whether activity is important part of trade or business, (2) whether activity is necessary, essential, and integral part of trade; and (3) whether activity has been previously performed by employees of principal employer.
(1)     Go for 3rd test first.
d)     Upstream responsibili

ourse of employment
C.     Injury by Accident
1.      “Accident” is defined as an occurrence that is not expected, designed, or intentionally caused by the employee.
a)      Ex. Carpal tunnel is injury by accident – not expected or intended
b)      Ex. Varicose veins – not an injury by accident b/c it was the natural consequence of a job that requires standing for several hours.
2.      The element of surprise or improbability necessary to constitute an “accident” need only be in the result or effect.
3.      Generally, if one becomes ill while at work from natural causes, the condition is not accidental. BUT, if there is a subsisting condition of illness or disability which is caused, increased, or accelerated by some act, coming by chance, then requisite quality or condition of injury will exist so as to make it “accidental.”
4.      Generally, injuries resulting from exposure to conditions due to weather or natural elements are generally classed as risks to which the public is exposed and as not coming w/in the compensation law. 
a)      EXCEPTIONS: Where employment requires employee to be at place where his injury is received, and he is in fact in such place in pursuance of discharge of his duties.
5.      The TEST as to whether the injury or death arose out of or in the course of employment when caused or hastened by atmospheric conditions, is whether the employee was exposed to a greater risk by reason of his employment and duties than was imposed upon an ordinary member of the public.
6.      Proof of “causative event” is not required to establish “injury by accident.”
7.      Facts leading up to what happened are a question of fact. The determination of whether facts lead up to “accident” is a question of law.
D.    Arising Out Of
1.      To sustain an award under workers comp it must appear that injury resulted from an accident which both “arose out of” and “in the course of” the employment. Both must exist simultaneously.
a)      “Arising out of” – look to origin of the accident
(1)     Must be a causal connection b/w the conditions under which the work is required to be performed and the resulting injury.