Leggette v. Duly

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

Darrell Leggette, Employee, Respondent,

v.

Dan Duly, d/b/a Double D Docks, and SC Uninsured
Employers Fund, Defendants,

Of Whom Dan Duly, d/b/a Double D Docks, is the
Appellant.

Appellate Case No. 2011-199046

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2014-UP-165
Heard February 3, 2014 – Filed April 9, 2014

AFFIRMED

Darryl D. Smalls, of Darryl D. Smalls, Attorney at Law,
of Columbia, for Appellant.

Andrew Wade Creech, of Elrod Pope Law Firm, of Rock
Hill, for Respondent.

PER CURIAM: In this workers' compensation matter, Appellant Dan Duly
appeals the decision of the Appellate Panel of the Workers' Compensation
Commission awarding Claimant Darrell Leggette workers' compensation benefits
for an injury he sustained while working for Duly's company, Double D Docks,
LLC (the Company). Duly argues the Appellate Panel erred in (1) determining the
Company regularly employed four or more employees and, therefore, was subject
to the South Carolina Workers' Compensation Act (Act)1; (2) failing to review all
the relevant evidence; and (3) finding Duly committed fraud. We affirm.

I. Four or More Employees
On April 24, 2010, Leggette suffered an injury while repairing a dock at the
request of Dan Duly, owner of the Company. Leggette and his co-worker, James
Day, were using a hydraulic "thumper"2 to replace wooden dock poles when Day
accidentally dropped the "thumper" on Leggette's right hand, injuring his middle
and index fingers. At issue is whether the Company regularly employed four or
more employees during the time period relevant to Leggette's injury.

An employer subject to the Act is required to pay for medical care and treatment
for "employees" injured "by accident[s] arising out of and in the course of
employment." S.C. Code Ann. §§ 42-1-160(A), -310 (Supp. 2013). However, the
Act specifically exempts certain employers "who [have] regularly employed in
service less than four employees in the same business within the State." S.C. Code
Ann. § 42-1-360(2) (Supp. 2013) (emphases added).

The determination of whether an employer regularly employs the requisite number
of employees to be subject to the Act is a jurisdictional question. Hernandez-
Zuniga v. Tickle, 374 S.C. 235, 244, 647 S.E.2d 691, 695 (Ct. App. 2007); Harding
v. Plumley, 329 S.C. 580, 584, 496 S.E.2d 29, 31 (Ct. App. 1998). This court's
review of a jurisdictional question is governed by the preponderance of the
evidence standard. Hernandez-Zuniga, 374 S.C. at 242, 647 S.E.2d at 694.

Here, the preponderance of the evidence reveals that during the relevant time
period, from mid-March until May 2010, the Company regularly employed four
employees, who worked on various jobs and were paid weekly by Dan Duly.
During this time, the Company's mode of operation reflected a project-to-project
schedule where four employees were paid consistent hourly wages at the end of

1
S.C. Code Ann. §§ 42-1-10 to -19-50 (1985 & Supp. 2013).
2
A "thumper" is a type of hydraulic post-driving machine mounted on a barge that
uses a weight-driven system to beat a dock pole into the ground.
each week after working on assigned projects, including projects such as the "Lee"
dock, the "Jones" dock, the "Ziegler" dock, the "Colbert job," the "Noble job," and
the "Lake Rhodiss job." See Hernandez-Zuniga, 374 S.C. at 248-51, 647 S.E.2d at
697-99 (recognizing the employer's established mode or plan of operation dictates,
to a large extent, the relevant time period, and both duration and regularity of
occurrence are important factors); see also Hartzell v. Palmetto Collision, LLC,
406 S.C. 233, 242-43, 750 S.E.2d 97, 102 (Ct. App. 2013) (applying five-factor
test for regularity of employment); Durham v. McLamb, 296 S.E.2d 3, 7 (N.C. Ct.
App. 1982) (finding the employer regularly employed four employees because,
although employees "worked irregular days and hours, their employment extended
over a period of some four weeks, during which they worked, not by chance or for
a particular occasion, but according to a definite employment at hourly wages that
were paid at the end of each week worked").

Therefore, we affirm the decision of the Appellate Panel finding Duly and the
Company are subject to the Act's jurisdiction because the Company regularly
employed four employees with some constancy during the relevant time period.

II. Failure to Review all of the Relevant Evidence
Duly also argues the Appellate Panel erred because it did not visually inspect
Leggette's fingers before making its decision to award Leggette permanent partial
disability.

It was unnecessary for the Commissioner to examine Leggette's partially-
amputated fingers. Because the overwhelming evidence showed Leggette's two
fingers were amputated at the first knuckle, the Appellate Panel's decision was
supported by substantial evidence. See S.C. Code Ann. § 1-23-380(5) (Supp.
2013); cf. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)
("[T]he award . . . can be set aside only if unsupported by 'substantial evidence.'").

III. Finding of Fraud
Duly argues the Appellate Panel erred in "finding" he committed fraud because
there is no evidence he committed fraud. The Commissioner did not find Duly
committed fraud. Rather, the Commissioner stated it would submit the names of
Duly and the Company to the Attorney General and the Department of Revenue
"for investigation of fraud and other wrongdoing." Therefore, Duly's third claim is
without merit.
Accordingly, the findings and decision of Appellate Panel are

AFFIRMED.

FEW, C.J., SHORT and GEATHERS, JJ., concur.