Howard v. Marvin Pittman Erectors

THIS OPINION
HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Curtis Howard,
Claimant,

v.

Marvin Pittman
Erectors, Employer and South Carolina Uninsured Employers’ Fund, Carrier,
Defendants,

of whom Curtis
Howard and Marvin Pittman Erectors are, Respondents,

And

South Carolina
Uninsured Employers’ Fund is the Appellant.

Appeal From Pickens County

 Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2008-UP-643

ubmitted November 3, 2008 – Filed
November 17, 2008   

AFFIRMED

Robert Merrell Cook, II, of Batesburg-Leesville, for Appellant.

Michael S. Swindell, of Greenville; and Marvin Pittman, pro se, of
Easley, for Respondents.

PER CURIAM:  In this
workers’ compensation case, South Carolina Uninsured Employers’ Fund appeals
the trial court’s ruling that Marvin Pittman Erectors was subject to the South
Carolina Workers’ Compensation Act (the Act).  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities: S.C. Code Ann. §
42-1-360(2) (Supp. 2007) (providing an employer that regularly employs fewer
than four employees in the same business is exempt from the Act); Hernandez-Zuniga
v. Tickle, 374 S.C. 235, 248, 647 S.E.2d 691, 698 (Ct. App. 2007)
(contrasting “regular employment” with “casual employment,” and defining
“casual employment” as occasional or by chance and not in the usual course of
the employer’s trade or business);  Id. at 245-46, 647 S.E.2d at 696-97
(quoting 4 Larson, Workers’ Compensation §§ 74.01-02 (addressing the minimum employee
requirement and providing the number of employees working at the exact time of
injury is immaterial)); Harding v. Plumley, 329 S.C. 580, 584, 496
S.E.2d 29, 31 (Ct. App. 1998) (providing the issue of whether an employer
regularly employs the requisite number of employees is jurisdictional;
therefore, the appellate court is not bound by the Appellate Panel’s findings
of fact and resolves the issue by determining whether the preponderance of
evidence supports inclusion under the Act); Grouse v. DRB Baseball Mgmt.,
Inc., 465 S.E.2d 568, 570 (N.C. App. 1996) (defining “regularly employed”
as “employment of the same number of persons throughout the period with some
consistency”).

AFFIRMED.

HEARN,
C.J., SHORT and KONDUROS, JJ., concur.

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