Kevin M. Todd v. Mike Roberts

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kevin M. Todd, Employee, Claimant, Respondent,

v.

Mike Roberts d/b/a Mike Roberts Home Repair,
Employer, and S.C. Uninsured Employers Fund, Carrier,
Defendants,

of which S.C. Uninsured Employers Fund is the
Appellant.

Appellate Case No. 2020-000923

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2022-up-399
Submitted October 1, 2022 – Filed November 2, 2022

AFFIRMED

Samuel Thompson Brunson, of Samuel T. Brunson Law
Offices, of Florence, for Appellant.

Gene McCain Connell, Jr., of Kelaher Connell &
Connor, PC, of Surfside Beach, for Respondent.

PER CURIAM: The South Carolina Uninsured Employers' Fund (the UEF)
appeals an order from an appellate panel of the South Carolina Workers'
Compensation Commission (the Appellate Panel). On appeal, the UEF argues the
Appellate Panel erred in (1) finding Mike Roberts, D/B/A Mike Roberts Home
Repair, was subject to the South Carolina Workers' Compensation Act (the Act)
because he regularly employed four or more persons at the time of Kevin Todd's
accident, (2) finding Todd suffered an injury arising out of the scope of his
employment, (3) awarding benefits in this case, and (4) considering this matter at a
conference and allowing Todd to submit additional evidence without Roberts's
consent. We affirm pursuant to Rule 220(b), SCACR.

1. As to issue one, we hold the Appellate Panel did not err in finding Roberts was
subject to the Act because the preponderance of the evidence showed he regularly
employed four or more persons. See Harding v. Plumley, 329 S.C. 580, 584, 496
S.E.2d 29, 31 (Ct. App. 1998) ("The issue of whether an employer regularly
employs the requisite number of employees to be subject to the . . . Act is
jurisdictional."); Hernandez-Zuniga v. Tickle, 374 S.C. 235, 242, 647 S.E.2d 691,
694 (Ct. App. 2007) ("[I]f the factual issue before the Commission involves a
jurisdictional question, [an appellate] court's review is governed by the
preponderance of evidence standard."); id. at 243, 647 S.E.2d at 695 (stating an
appellate court "has both the power and duty to review the entire record, find
jurisdictional facts without regard to conclusions of the Commission on the issue,
and decide the jurisdictional question in accord with the preponderance of
evidence"); id. ("Workers' compensation statutes are construed liberally in favor of
coverage, and South Carolina's policy is to resolve jurisdictional doubts in favor of
the inclusion of employees within workers' compensation coverage."); id. at
243-44, 647 S.E.2d at 695 (stating that although "an appellate court may take its
own view of the preponderance of evidence on the existence of an
employer-employee relationship, the final determination of witness credibility is
usually reserved to the Appellate Panel"); S.C. Code Ann. § 42-1-360(2) (2015)
(indicating the Act does not apply to "any person who has regularly employed in
service less than four employees in the same business within the State"); S.C. Code
Ann. § 42-1-130 (2015) (defining an employee as a person "engaged in an
employment under any appointment[ or] contract of hire" but excluding "a person
whose employment is both casual and not in the course of the trade, business,
profession, or occupation of his employer"); S.C. Code Ann. § 42-1-150 (2015)
(stating employment includes "all private employments in which four or more
employees are regularly employed in the same business or establishment");
Hartzell v. Palmetto Collision, LLC, 406 S.C. 233, 242-43, 750 S.E.2d 97, 102 (Ct.
App. 2013) (indicating common characteristics of regular employment include:
"(1) 'employment of the same number of persons,' although not necessarily the
same individuals; (2) during the relevant period of time; (3) 'with some constancy';
(4) 'not by chance or for a particular occasion'; and (5) without regard to the
regularity of the days or hours worked"), rev'd on other grounds by Hartzell v.
Palmetto Collision, LLC, 415 S.C. 617, 785 S.E.2d 194 (2016).

2. As to issues two and three, we hold the Appellate Panel did not err in finding
Todd suffered an injury arising out of and within the scope of his employment and,
thus, awarding benefits. See Barnes v. Charter 1 Realty, 411 S.C. 391, 395, 768
S.E.2d 651, 652 (2015) (stating an appellate court "can reverse or modify the
[Appellate Panel's] decision if it is affected by an error of law or is clearly
erroneous in view of the reliable, probative, and substantial evidence in the whole
record"); Gibson v. Spartanburg Sch. Dist. No. 3, 338 S.C. 510, 517, 526 S.E.2d
725, 729 (Ct. App. 2000) ("Substantial evidence . . . is evidence which, considering
the record as a whole, would allow reasonable minds to reach the conclusion the
administrative agency reached in order to justify its action."); Barnes, 411 S.C. at
395, 768 S.E.2d at 652 ("In a workers' compensation case, the appellate panel is
the ultimate fact-finder."); id. at 398, 768 S.E.2d at 654 ("For an accidental injury
to be compensable, it must 'aris[e] out of and in the course of the employment.'"
(quoting S.C. Code Ann. § 42-1-160(A) (2015))); Gibson, 338 S.C. at 517, 526
S.E.2d at 729 ("The question of whether an accident arises out of and is in the
course and scope of employment is largely a question of fact for the Appellate
Panel."); Barnes, 411 S.C. at 398, 768 S.E.2d at 654 ("Arising out of refers to the
injury's origin and cause, whereas in the course of refers to the injury's time, place,
and circumstances."); id. ("An injury arises out of employment if it is proximately
caused by the employment."); id. ("For an injury to arise out of employment, there
must be a causal connection between the conditions under which the work is
required to be performed and the resulting injury."); id. at 394, 768 S.E.2d at 652
(stating "[w]orkers' compensation law is to be liberally construed in favor of
coverage to serve the beneficent purpose of the" Act).

3. As to issue four, we hold the UEF's arguments are not preserved for review
because it did not raise them to the Appellate Panel. See Smith v. NCCI, Inc., 369
S.C. 236, 256, 631 S.E.2d 268, 279 (Ct. App. 2006) ("Only issues raised and ruled
upon by the [Appellate Panel] are cognizable on appeal.").

AFFIRMED. 1

KONDUROS, HEWITT, and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.