We helped a tractor trailer driver from nearby Chesnee with his South Carolina workers' comp case after he got rear-ended by another tractor trailer in a snow blizzard in Laramie, Wyoming. First things first: if you're employed by a company in South Carolina, South Carolina workers' comp law applies despite an injury outside the state.
Our client suffered severe spinal injuries to his neck and back, affecting both arms and his right leg, along with chronic intense pain. His neurosurgeon concluded he suffered a two herniated spinal discs in his neck. The neurosurgeon removed the damaged discs, replacing them with metal and using metal plates and screws to fuse the two discs together. Our client’s orthopedist also recommended a similar operation in the low back spine. The neurosurgeon assigned our client a 71% permanent impairment rating to his cervical (neck) spine.
The employer refused to provide workers’ compensation benefits, claiming our client was not an employee, but was instead an independent contractor. Workers’ Compensation law provides no benefits for independent contractors. It is a complex case to present to a Workers’ Compensation Commissioner, because it involves showing many facts to prove the injured worker is an employee, all in the face of stern denials by the employer, who often has a written agreement signed by the injured worker called an Independent Contractor Agreement.
Basically, the law says an injured worker is an employee if the employer has the right to control and direct the way work is done. To prove this, the injured worker must present evidence of four factors- 1) the employer’s right or use of control, 2) the employer’s furnishing equipment, 3) method of payment, and 4) right to fire. In this case decided under old law, employment was presumed if the injured worker proved just one factor.
The South Carolina Supreme Court has since changed the law. Now the Commission evaluates all the evidence to decide whether the injured worker proves it more likely than not they were an employee. We developed a case so strong we feel we would have prevailed under the new law.
At the hearing, Rob presented evidence from the employer’s “Compliance Manual” given to our client when he signed up to work for them. Rob also presented the testimony of our client, who only finished eighth grade. He testified he really didn’t know what an independent contractor was and thought he was an employee. The Commissioner also considered testimony and evidence presented by the employer’s president. While the company president adamantly testified the Compliance Manual contained only “suggestions”, Rob helped the Commissioner see through that to conclude the manual was an employee handbook, enforced by a discipline policy, used by the employer to control drivers – making them employees. The employer told drivers when to pick up and deliver goods. The employer controlled the route he drove by allowing maintenance and inspections only at approved locations. If drivers needed a substitute, the employer chose it. The employer provided the equipment- it owned the truck our client drove. The employer controlled how our client got paid by setting the rates to charge for trips; the employer controlled how much he got paid by deducting expenses from his check. The employer could fire a driver for many reasons.
Based on this evidence, the Commissioner ruled our client was an employee entitled to workers’ compensation benefits. The battle was not over yet, as the employer appealed to the Full Commission – a 3-Commissioner panel. The Full Commission upheld the ruling. The employer continued to fight, appealing that to the Circuit Court. Rob was able to short circuit this appeal when, on careful review of the appeal and the law governing it, he discovered the employer filed it too late. Rob filed a motion to dismiss, and the employer voluntarily quit the appeal.
This established our client as an employee so he could get benefits. Still, the employer continued to fight giving benefits for our client. We requested a hearing to decide the benefits he was entitled to. Just before the hearing, we were able to settle those claims for $220,000 and, most importantly, the agreement to pay for all medical care since the date of the accident and lifetime medical care related to the accident.