SEPTEMBER 2011 CASE LAW UPDATESCompiled by Anne Marie Hempy

Time Matters: Commission May Not Extend Time Period for Filing an AppealAllison v. W.L. Gore & Associates, Op. No. 27031, South Carolina Supreme Court, filed August 22, 2011

The Claimant’s representative (“Claimant”) filed a Form 30 appealing the decision of the single commissioner two days after the 14-day deadline for filing an appeal passed. The employer moved for dismissal of the appeal based on the untimely Form 30. The Commission denied the motion, finding the appeal was only two days late and that it was the result of an attorney error and not the fault of the claimant.

The Supreme Court considered whether the claimant’s failure to file a Form 30 with the Commission within 14 days of receiving notice of the single commissioner’s order deprived the Commission of asserting appellate jurisdiction. The Court reiterated the general rule that an appellate body does not have the discretion to extend the time to appeal and held the Commission lacks authority to extend the 14 day time period for appealing a decision of a single commissioner. Therefore, the Appellate Panel did not have jurisdiction to hear Claimant’s appeal.

Practice Point: This case is extremely important because it divests the Commission of authority to extend the time for filing an appeal, regardless of the circumstances.

Supreme Court Reverses Decision Remanding a Claim and Leaving Open the Record for Additional DepositionsTrotter v. Trane Coil Facility, Op. No. 27024, South Carolina Supreme Court, filed August 15, 2011

The Supreme Court considered whether the Court of Appeals properly reversed and remanded this case so Trane

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Workers’ Compensation Practice Group (Continued)

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could obtain the deposition testimony of the treating doctor and a company supervisor. Trane requested the record be held open for the deposition of Dr. James, the treating doctor, and for the deposition of Pat Charleston, Claimant’s supervisor. The single commissioner denied the Dr. James request, because Trane had the opportunity to depose Dr. James but purposefully postponed the deposition for “strategic reasons” prior to the hearing. As for Charleston, the hearing commissioner held the record open for one month after the hearing for Trane to take the deposition of Pat Charleston, who became ill and had surgery the week of the hearing. At the end of the month, when Charleston’s deposition was never scheduled, the commissioner closed the record.

South Carolina law clearly vests authority in the hearing commissioner “to postpone a scheduled hearing in a workers’ compensation matter for ‘good cause.’” Trotter, p. 4 (internal citations omitted). Further, “the granting or refusal of a request for continuance rests in the sound discretion of the hearing commissioner,” and the ruling will not be disturbed unless a “clear abuse of discretion” is shown.

In this particular case, the Supreme Court reversed the Court of Appeals and found the single commissioner did not abuse her discretion in closing the record. As to Charleston, because he was suffering from a life-threatening illness and it was unclear whether he would ever be able to sit for a deposition, the commissioner correctly ruled. Additionally, Charleston’s e-mails detailing the circumstances about the Claimant’s report of injury were on the record for consideration by the commissioner.

As to Dr. James, the Court found the commissioner’s decision to close the record was supported by the evidence. Specifically, the Court detailed the scheduling and re-scheduling of Dr. James’ deposition and noted Trane did not have “an unfettered right to postpone the hearing simply to implement a strategy for itself.” Additionally, Dr. James’ notes fully detailed his diagnosis. Because those records were introduced and considered as part of the record, Trane was not prejudiced by not being allowed to take his deposition.

Practice Point: With hearings now being scheduled as early as 45 days from the date of the filed hearing request, anticipate the need for depositions and make the necessary arrangements as soon as possible. Many of the commissioners disfavor leaving the record open unless absolutely necessary, so it is essential to be prepared to present any necessary evidence, including deposition testimony, at the time of the hearing.

Nurse Anesthetist Working at Hospital Through Staffing Agency Not an Employee for Purposes of Determining Workers’ Compensation CoverageShatto v. McLeod Regional Medical Center, Op. No. 4865, South Carolina Court of Appeals, filed August 10, 2011.

Claimant Mildred Shatto (Shatto) was hired to work at McLeod as a nurse anesthetist through Staff Care Inc., a temporary medical service staffing company. When Shatto fell in the operating room injuring her right eye, she filed a Form 50 hearing request against McLeod and Staff Care. The hearing commissioner awarded benefits, finding an employer-employee relationship existed between Shatto and McLeod. The Appellate Panel affirmed, and McLeod appealed.

The determination of whether a claimant is an employee for purposes of awarding workers’ compensation benefits hinges on “whether the employer had the right to control the claimant in the performance of his or her work.” Shatto, p. 3. In considering this issue, the Court looks at the following factors: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; and (4) right to fire. Id. (citing Wilkinson ex. rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009)).

In this case, McLeod argued an employment relationship could not exist between it and Shatto because Shatto signed an employment contract with Staff Care. The Court disagreed, finding the existence of an employment contract is not dispositive in establishing the employment relationship. Instead, the Court reiterated that the focus lies on the right to control and the four-factor test of Wilkinson.

(1) Direct Evidence of the Right to Control: McLeod told Shatto when her work shift began, scheduled her patient assignments, approved the timecards she submitted to Staff Care and provided instruction and education, among other factors. However, McLeod argued that any control it asserted over Shatto was mandated by law. The Court agreed, noting hospitals “are subject to any array of legal and governmental regulations to ensure proper medical standards for healthcare professionals providing optimal patient care,” and held the right to control factor does not support an employee-employer relationship in this case.

(2) Furnishing of Equipment: McLeod argued, and the Court agreed, healthcare laws also required McLeod to furnish certain medical equipment to Shatto. Additionally, Shatto’s employment agreement with Staff Care required McLeod to supply Shatto with customary equipment and supplies. Therefore, the Court found the furnishing of equipment factor did not weigh in favor of an employment relationship.

(3) Method of Payment: The Court also determined the method of payment factor did not favor an employment relationship. In analyzing the method of payment, the Court placed specific weight on the fact McLeod did not provide any benefits, including health insurance, vacation time or a 401K plan to Shatto. McLeod paid Staff Care for “contract labor,” but Staff Care actually paid Shatto for hourly wages, per diem, rental car expenses, medical malpractice insurance, overtime wages and housing. Additionally, Shatto filed a 1099 form and 1040 Schedule C form indicating she considered herself a sole proprietor for purposes of taxes.

(4) Right to Fire: The Court found any right to fire was controlled by the Staffing Agreement between McLeod and Staff Care and the Provider Agreement between Shatto and Staff Care (which Shatto signed). Therefore, the right to fire also weighed against an employment relationship.

The Court of Appeals, finding no employment relationship existed, reversed and remanded1 the case to the Commission.

Practice Point: In analyzing the employment relationship between workers who are employed through a staffing agency, pay careful attention to the details of any contracts entered into between the worker and the agency and to contracts between the agency and the employer.

Additionally, consider laws regulating the industry in which the work is performed in determining whether a right to control exists. Finally, be mindful that the existence of an employment contract alone is not conclusive of an employer-employee relationship.

1Check back for a decision from the Commission on remand, determining whether an employment relationship exists between Shatto and Staff Care despite a contractual provision in the employment contract providing Staff Care is not responsible for Shatto’s unemployment and workers’ compensation benefits.

Re-Examining the McDevitt Street/Fraud in the Application DefenseGeorge Rabon v. Arrow Exterminating, Inc., Op. No. 4849, S.C. Court of Appeals, filed July 6, 2011

In this case, the Court re-examined the defense of fraud in the application. The claimant (Rabon) worked as a carpenter for the employer (Arrow). He was injured in 2006 after falling from a ladder and injuring his ribs, neck and back with radiating weakness into his left leg.

On his employment application for Arrow, Rabon said he could do “painting, finishing sheetrock, tile, trim work, framing, plumbing,

heating and air, vinyl siding, roofing, windows, hang doors, run gas line, little bit electric, run my own crew.” The employment application did not ask him to disclose any current or prior injuries. Furthermore, no one with Arrow ever asked Rabon if he had any prior injuries or physical problems.

The fraud in the application defense prohibits an employee from receiving workers’ compensation benefits if he makes a false statement in his employment application, provided that three factors are met: “(1) the employee knowingly and willfully made a false representation as to his or her physical condition; (2) the employer relied upon the false representation and this reliance was a substantial factor in the hiring; and (3) there was a causal connection between the false representation and the injury.” Cooper v. McDevitt Street Co., 260 S.C. 463, 368, 196 S.E.2d 833, 835 (1973). The employer must prove all three factors are present. Vines v. Champion Building Products, 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993).

In Rabon, the Court of Appeals determined that because Rabon did not knowingly and willfully make a false representation as to his physical condition, the defense did not apply. The Court relied on the fact the employer did not inquire about current or prior injuries and the claimant was physically able to do all the required jobs. Practice Point: Employers must ask! After offering a position, as a condition of employment, include a thorough medical questionnaire about the candidate’s ability to meet the physical demands of the job, including whether any prior injuries could preclude him from meeting the physical demands. If the employee intentionally misrepresents his physical condition, the first prong of the test would be satisfied.

An alternative argument: Look closely at prior medical records for work restrictions. If a claimant was previously told by a physician not to crawl, and the claimant is injured crawling, you may be able to argue there was no accident because the result was expected.

Service Members and Health Care Professionals May Have a Higher Hurdle to Cross in Alleging Mental or Nervous DisordersMartinez v. Spartanburg County, Op. No. 4839, S.C. Court of Appeals, June 15, 2011.

It is commonly recognized that mental or nervous disorders are compensable “provided the emotional stimuli or stressors are incident to or arise from ‘unusual or extraordinary’ conditions of employment.” Doe v. S.C. Dep’t of Disabilities & Special Needs, 377 S.C. 346, 660 S.E.2d 260 (2008).

In Martinez v. Spartanburg County, the South Carolina Court of Appeals recently reiterated that the “unusual or extraordinary” condition in the employment refers to conditions of the particular job in which the injury occurs, NOT to the conditions in general. Specifically, in Martinez, the Court held a law enforcement investigator did not experience an “unusual or extraordinary” condition in her employment because viewing horrific accident scenes were a normal part of her job; therefore, claimant’s alleged mental breakdown was not compensable.

Martinez, a longtime law enforcement veteran, was employed as a master deputy forensic investigator for the Spartanburg County Sheriff’s Department. As a part of her job, Martinez reported to crime scenes, collected evidence, took photographs of crime scenes and attended autopsies. On April 4, 2005, Martinez was the forensic investigator on a case involving the accidental death of a fellow officer’s two-year-old child. Approximately four months after the investigation, Martinez allegedly experienced a mental breakdown that required psychiatric and psychological treatment.

In determining whether Martinez’ claim was compensable, the Court of Appeals considered the following evidence: statistics on the number of death cases and gruesome crime scenes Martinez investigated during her career; Martinez’s supervisor’s testimony stating she performed her normal duties on the alleged date of injury; and the fact Martinez did not personally know the child. The Court found because Martinez witnessed autopsies and worked on approximately 100 to 150 death cases during her career as an investigator, photographing the death of a fellow officer’s child, although difficult and tragic, was not unusual to Martinez’s employment.

Practice Point: Because of their experience and training, employees such as nurses, police officers, fire fighters and other health care providers or service members, have a higher threshold to prove mental or nervous disorders. The Commission and appellate courts look to the nature of the employment, not the emotional or horrific nature of the event, in determining compensability of alleged mental injuries.