*1 Shirley HICKS, Sr., Employee; and Joseph Deceased Glenn Through Hicks, Jr., Minors, By and their Joseph Glenn Claimants, litem, Respondents, ad Guardian INC., STORAGE, Employer, and Atlantic COLD PIEDMONT Carrier, Company, Appellants. Mutual Insurance No. 2596. Appeals Carolina. of South Court Sept. 1996. Heard Nov. 1996. Decided Rehearing Denied Jan. *3 Marion, Keller, & Haynsworth, McKay Hill Guer-
David Greenville, ard, appellants. for Greenville, Foster, for re- Foster, of Foster & P. Robert spondents.
HEARN, Judge: Hicks, brought this workers’ Joseph children of Sr. The Inc. fol- Storage, Piedmont Cold against action commissioner, af- single father’s death. The lowing their commission, was not full found Hicks’ death by firmed reversed, the commis- holding The circuit court compensable. of the evi- weight the substantial against decision was sion’s pay death and funeral bene- ordering and Piedmont dence affirm. family. fits to Hicks’ We
Facts handyman, Hicks as a full-time or employed Piedmont His duties included “general helper,” Easley plant. at its “other odds cleaning, sweeping, painting, greasing equipment, ends,” him.” assisting and “wherever needed [Piedmont] Lewis, managed plant, Hicks’ David who supervisor, direct Hicks to him his car.1 Lewis offered help repair asked hourly wage for the personally pay regular Hicks his $5.00 agreed. work. Hicks 27,1990, reported Hicks to Piedmont. Saturday,
On October boot, the car’s axle which was began repairing He and Lewis They company-owned sup- used tools and leaking grease. making company-owned the car with a forklift while ported forklift, Hicks, crushed repairs. When the car fell from the it or disci- tragically killing reprimand him. Piedmont did this incident. pline Lewis as a result of regularly Hicks worked only dispute The factual is whether in” “punched Hicks had not on Saturdays. for Piedmont on by 27. Time cards examined Lewis re- Saturday, October Saturday; one howev- only previous vealed Hicks had worked er, Hicks had worked Satur- deposition, at his Lewis testified former wife prior on three or four occasions. Hicks’ days Saturdays. pick often on She would testified Hicks worked him Saturdays on to exercise up him at Piedmont those with their children. rights visitation commission, commissioner, full affirmed single (2) (1) clock Saturdays; regularly
found Hicks did not work 27; any way on the or benefit Piedmont on October The commissioner also found of the accident. day Therefore, of Lewis. personal worked for the benefit reasoned, did not result from Hicks’ death commission *4 in of his out of and the course injury by arising an accident Piedmont. employment with however, performed held the tasks judge,
The circuit employ- incidental to his at the time of his death were addition, Hicks’ work arose out judge the found ment. the He also found employment. in course of his and the name, purportedly driven although it was titled in Lewis' 1. The car was by Lewis’ wife. (2) (1) accident occurred on Piedmont with Pied- premises; tools; mont and he performed while task under the supervision direction and of his noted superior. judge previously greased Hicks had of his machinery the course work. Hicks conferred a benefit on Piedmont in that Lewis spend was able to more of running plant his time the lieu of dropping picking up repair off and his car from the If shop. job Hicks had not performed requested, as reasoned the judge, he have risked might losing employment. He further held Lewis enlarged scope of Hicks’ duties, which Piedmont ratified when it failed to or reprimand discipline using Lewis for resources to company perform private tasks. The judge remanded the case to the commis- sion for calculation of the amount payable of death benefits Hicks’ minor children.2
Discussion argues Piedmont the circuit court in finding erred substantial evidence did support not the decision of the work- ers’ commission. argues Piedmont further circuit court substituted its judgment for that of the commis- sion in finding Hicks’ accident arose out of the course of his employment with Piedmont. We disagree.
The findings of an administrative agency pre are sumed correct and will be set aside if only unsupported by substantial evidence. Rodney Corp., Michelin Tire 320 S.C. 515, 518, 466 S.E.2d A court may judgment substitute its for that of an agency weight as to the questions the evidence on of fact agency’s unless the reliable, are findings clearly erroneous in view of proba tive, and substantial evidence on the whole record. Id. (citing Furniture, Grayson 306, 307, v. Carter Rhoad 317 S.C. Fabrics, Montjoy Dryer 2. Under v. Asten-Hill (1994), remanding an order of the circuit court a case for addition proceedings agency al directly appeal- before an administrative is not case, proceedings required able. In this additional are not because the parties agree average weekly wage. Judge Pyle’s on Hicks’ order merely remanded the case for a mathematical calculation of death benefits, any judgment Any rather than for on the merits. further proceedings purely require on remand are ministerial and do not independent judgment part- exercise of or discretion of the commission.
633 (1995)). 320, 321 facts in dispute, S.E.2d When the are not the question of whether the accident is is a compensable question Mill, 58, 59, of law. Bright Orr-Lyons v. 285 S.C. 328 S.E.2d (1985). 68, 69 an not inquiry Such is an invasion of the fact- Bros., field of the finding Sylvan Sylvan commission. v. 225 (1954). 429, 433, 794, Here, S.C. 82 parties S.E.2d 795 the facts, agree to all the whether Hicks except regularly worked alone, however, on Saturdays. This fact is not determinative. Even if Hicks worked only Saturday, one our conclusion remains the same in of all light the evidence.
The Compensation South Carolina Workers’ Act re in quires that order to be compensable, injury by accident “arising must be one out of and in the course of employment.” (1985). § S.C.Code Ann. parts 42-1-160 The two of the in phrase “arising out of and the course of are employment” synonymous. parts simultaneously Both must exist before any recovery. court will allow out of’ to the “Arising refers cause, “in injury’s origin and whereas the of’ refers to course time, injury’s place, and circumstances. Howell v. Pacific Mills, (1987). 469, 472, 384, Columbia 291 S.C. 354 S.E.2d 385 injury employment,
For an to “arise out of” injury must be proximately employment. caused Mills, Div., 265, 269, Douglas Spartan Startex 245 S.C. 140 173, injury employment S.E.2d 175 The arises out of when there is a causal connection between the conditions under which the work is to be and the required performed resulting injury. danger peculiar Id. The causative must be to the work and not “common to Id. neighborhood.”
Death “in the course of it employment” arises when occurs within the at a where the period employment place in employee reasonably may performahcé be of his duties in fulfilling engaged something and while those duties or Compensation incidental thereto. Beam v. State Workmen’s Fund, 327, 331, (holding compensable traveling meeting teacher’s death while Association). be employee the S.C. Educational need not he was performance the actual of the duties course of employed injury order for or death be and Id. at 200 S.E.2d at compensable. thus for the doing 86. If the work at the direction and employee benefit of the time employer, place of work are for the benefit of the employer part employment. and a of the Brown Station, v. Jim Brown’s Serv. N.C.App. S.E.2d *6 (1980). 700, 702 case,
In present Hicks performed services for Lewis, plant Piedmont’s manager, at Lewis’ request. Lewis was the highest-ranking employee at the plant. handy As a “general man or helper,” repair work was within the scope of addition, Hicks’ duties. In only supervised Lewis not Hicks car, repaired while Hicks Lewis’ but also assisted him. More over, Piedmont from in profited Hicks’ work that Piedmont workweek, had the benefit of Lewis’ time during the Lewis could have spent arranging repairs for his Fur car. thermore, Lewis’ in request placed Hicks an intolerable 22” “Catch situation: If complied with the request, he arguably risked forfeiting workers’ protection; if comply, he did not he might job. have risked losing his light Howell, of these factors and the standard set forth Hicks’ death not only arose out of his employment at Pied mont, but also the course of it.
Our
supported by
view is
the reasoning found in Arthur
Larson’s
treatise
workers’ compensation,3 which is fre-
quently
by
See,
cited
appellate courts of this state.
e.g.,
Mechanical,
Co., Inc.,
Freeman
Inc. v. J.W. Bateson
95,
197,
(1994);
Co.,
447 S.E.2d
Peay
199
v. U.S. Silica
313
91, 93-94,
(1993).
64,
S.C.
65-66
Larson states:
any
person
authority
When
directs an employee to run
some private errand or do some work outside his normal
large majority
compensability
The
of cases favor
on similar facts and
parameters
demonstrate the wide
favoring
within which the rule
com
See,
pensability
685,
operates.
e.g.,
Curry,
Wilson & Co. v.
259 Ala.
68
(1953) (awarding compensation
So.2d 548
employee
injuries
to
for
building
pit
use);
superior’s personal
sustained while
barbecue
for
State,
87,
(1984),
denied,
Ga.App.
Edwards v.
A
decided
the North Carolina
similar case was
*7
Corrections, 29
Dep’t
v. North Carolina
Appeals. Stewart
of
(1976).
Stewart,
In
one of the
735,
[W]hen normal his duty beyond some perform an errand or to Act ex- duties, Compensation scope the of the Workmen’s of such in the course injuries sustained encompass to pands otherwise, com- would be employees the rule labor. Were and, no doubt at their instance each to determine pelled the ambit of beyond was activity requested whether a peril, Larson, Compensation 1 A. Law of Workmen’s act. See § 27.40 imperative. couched in request need be
The order or sugges- that purposes compensation It is sufficient of perception mere tion, employee’s or even request classification, serves job him his under expected what is activity. So injury producing undertaking to motivate to beneficial acts superior, to a perform as ordered long 636 employer injury performing employ- result to
ees are within the ambit of the act. Bros., Inc., Id. 225 also Pollock See v. Reeves at 338. S.E.2d (1985) 287, 282, 313 328 287 (holding compensable N.C. S.E.2d injuries superior sustained when a directs a subordinate to go duties). or perform duty an errand some his normal beyond legislature Because our fashioned South Carolina’s workers’ Carolina’s, act after North similar eases from Daley, Nolan v. that great respect.” state are “entitled to 222 412, 407, 449, (quoting McDowell v. S.C. 73 S.E.2d 451 Co., 173, 181, Stilley Plywood 872, 210 S.C. 876 (1947)). Mitt, Fountain Hartsville Oil argues
Piedmont (1945), Foun- controlling. S.E.2d court in tain held an employee’s injury was not compensable because his injury, though of his arising employment, out did not occur Id. the course of his employment. at S.E.2d at 13. Fountain, In reported work, in,” the claimant “punched proceeded to his assignment. day, work Later that the claim- supervisor ant’s him to go supervisor’s instructed to the home there, a fence. repair working piece While of board Id. at employee, struck him in blinding one eye. S.E.2d at
We the present from Fountain. distinguishable find case Fountain, the claimant worked at the supervisor’s private Hicks, however, actually job residence. was at site. He also a task performed company with tools under the direction plant’s highest-ranking manager. Hicks sustained his therefore, injuries, in the course of employment. Further- more, work allowing Hicks’ benefited Piedmont by Lewis to *8 plant remain at the leaving instead of work to deliver and pick up his car from a Fountain repair shop. The claimant Moreover, no benefit upon the Foun- employer. conferred tain emphasized court that compensation “workmen’s laws given should a to be liberal construction ... avoid harsh results, but also in mind that having ‘the Compen- Workmen’s sation adopted Act was to protect against industrial workers Id. at of their employment____” hazards 32 S.E.2d at
637 facts, by of loss should not be borne these the risk Under Hicks, in an inferior placed such as who was employee, in- Piedmont could have by superior. a bargaining position a Lewis’ by adopting policy prohibiting this risk against sured policy. of that Piedmont informing employees conduct and by Lewis’ behavior ratify have chosen not could also Finally, him accident. after the punishing or reprimanding and in the course arise out of workplace accidents at the when noted that expressly court has supreme our employment, Id. loss. bear the cost of not should industry, employees, ... adopted Act was Compensation (noting “the Workmen’s employed are industry [workers] upon cast accidents”). from industrial resulting the burden share of circum- employment, nature of Hicks’ general Given the accident, in which the dilemma location of the stances and him, ratification of Piedmont’s superior placed Hicks’ act, philosophy. consistent with that our decision is Lewis’ of the circuit court the decision Accordingly, AFFIRMED.
HOWELL, C.J., concurs.
STILWELL, J., separate opinion. in a dissents STILWELL, (dissenting): Judge case is controlled I this
I dissent. believe respectfully Mill, Hartsville Oil in Fountain v. embodied concept (1945), was denied compensation where S.C. S.E.2d to the no benefit activity provided the employee’s because found the work Here, specifically the commission employer. way in no Lewis and of Mr. benefit personal “was for the Co., I that Inc.” believe Storage Piedmont Cold benefitted evidence by substantial supported finding a factual was of the workers’ that a decision established record. It is well if evi- substantial must be affirmed commission findings. Rogers factual the commission’s supports dence Inc., Mills, Kunja Knitting
(Ct.App.1994). clearly even more in this case was fact, accident
In in Fountain. the one than in the course time, work, when company at Fountain claimant was *9 Here, he was directed to do work in question. the day in” it “punched only never even as was his off. The plant reason he even came to was to personal the do work for Lewis for Lewis him. personally compensated which
I agree with the that a majority superior expands a subor- scope dinate’s of duties when he “directs to run [him] [a] private or do work errand some outside his normal duties for the benefit private employer of the or superior.” ARTHUR LARSON, COMPENSATION, THE LAW OF WORKMEN’S here, however, § 27.41 That is what happened not because Lewis never “directed” Hicks to anything. do Rath- er, the on record reflects that Hicks’s work that fateful Saturday agreement was the result of a side made outside the of scope working relationship. explanation the Larson’s for the expanding rule on subordinate’s duties demonstrates it is not applicable resulting agreements to work from freely side additional, by entered into the employee personal compen- sation:
The technical reason rule expanding for [the subordinate’s that, of scope duties] is whatever the normal course of be, may employer supervisory and his staff have it within their power enlarge by that course assign- ing they tasks outside the usual area. If do assign strength these tasks the employer-employee rela- tion on which compensability depends, then what is the authority source of assigned? task is § Id. is at 27.44. Where there substantial evidence a side agreement freely entered into between employee and a supervisor, case, as in “authority” this the obvious for the task assigned separate is the agreement, supervisor’s not the supe- rior position the workplace. majority opinion notwithstanding, there is simply no
evidence in the record Hicks “might that have risked losing job” his he accept had declined to and compen- extra work fact, sation him. only offered evidence the record relationship Hicks’s with concerning Lewis was that the two were That paid pocket friends. Lewis Hicks out of his own using working further evidence he was not relationship with working Hicks to coerce him into for him. reasons, I the circuit court would reverse foregoing
For the commission’s decision. and reinstate *10 Services, Insurance McDANIEL and Carolina Ronald J. Agency Jasper Inc., Insurance Estill d/b/a Agency, Appellants, Insurance AND GUARANTY COMPANY FIDELITY UNITED STATES Cummings, Respondents. B. and Robert
No. 2598. Appeals of Carolina. South Court 9, 1996.
Heard Oct. Nov.
Decided