Toner v. SC Emplotment Commission

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

Michael Toner,       
Appellant,

v.

South Carolina Employment Security Commission,       
Respondent.

Appeal From Richland County

Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2005-UP-115

Submitted January 1, 2005 – Filed February 15, 2005

AFFIRMED

Everett Hope Garner, of Columbia, for Appellant.

Harold W. Funderburk, Jr., of Columbia, for Respondent.

PER CURIAM:  Michael Toner appeals the decision
of the circuit court, affirming the Employment Security Commission’s finding
that workers’ compensation benefits are excluded from the definition of wages
for purposes of calculating unemployment benefits.  We affirm.

FACTS

As a result of an on–the-job injury, Michael
Toner received temporary total workers’ compensation payments from November
9, 2000 to May 15, 2002.  During this same time period, Toner was laid-off from
work because of a lack of work. He sought unemployment benefits for the period
in question.   To determine the amount of his unemployment benefits, the South
Carolina Employment Security Commission considered the holidays and vacation
days for which Toner was paid and which the employer reported to the Commission
as wages. However, the Commission determined the workers’ compensation payments
should not be included in determining the amount of Toner’s unemployment benefits,
because they are not included in the definition of wages.  Section 41-27-380
of the South Carolina Code (1986) defines wages for tax and benefit computations
under the South Carolina Employment Security Law as follows:

(1) “Wages” means all remuneration
paid for personal services, including commissions and bonuses, any sums paid
to an employee by an employer . . ..”Wages” does not include:

(a) The amount of any payment with respect to services
performed in behalf of an individual in its employ under a plan or system established
by an employing unit which makes provision for individuals in its employ generally
or for a class or classes of individuals (including any amount paid by an employing
unit for insurance or annuities or into a fund to provide for any such payment),
on account of (i) retirement, (ii) sickness or accident disability, (iii) medical
and hospitalization expenses in connection with sickness or accident disability,
or (iv) death . . . .

Toner appealed to the circuit court, which agreed with
the Commission, finding workers’ compensation payments are not wages for purposes
of calculating Toner’s unemployment benefits.  Toner now appeals the circuit
court’s order. 

STANDARD OF REVIEW

In an action at law, tried without a jury,
our standard of review extends only to the correction of errors of law.  Okatie
River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 334, 577
S.E.2d 468, 472 (Ct. App. 2003) (citations omitted).  The circuit court’s findings
will not be disturbed on appeal unless they are wholly unsupported by the evidence
or controlled by an erroneous conception of the application of the law.  Gordon
v. Colonial Ins. Co. of California, 342 S.C. 152, 155, 536 S.E.2d 376, 378
(Ct. App. 2000) (citation omitted).

Likewise, when reviewing the decision
of an administrative agency, our scope of review is limited, and we will neither
overturn the agency’s findings of fact if they are supported by substantial
evidence, nor will we disturb the agency’s rulings on questions of law if they
are sound as a matter of law.  Alton Newton Evangelistic Ass’n, Inc. v. South
Carolina Employment Sec. Comm’n, 284 S.C. 302, 304, 326 S.E.2d 165, 166
(Ct. App. 1985) (citations omitted).

LAW/ANALYSIS

Toner argues that because worker’s compensation
is not specifically excluded from the definition of wages and because the Employment
Security Law is “remedial social legislation,” worker’s compensation should
be included when calculating unemployment benefits.  We disagree.

“The cardinal rule of statutory construction
is to ascertain and effectuate the intent of the legislature.”  Charleston
County Sch. Dist. v. State Budget and Control Bd., 313 S.C. 1, 5, 437 S.E.2d
6, 8 (1993) (citing Bankers Trust of South Carolina v. Bruce, 275 S.C.
35, 37, 267 S.E.2d 424, 425 (1980)).  The best evidence of the legislative intent
is in the text of the statute.  Hodges v. Rainey, 341 S.C. 79, 85, 533
S.E.2d 578, 581 (2000) (citation omitted).  We cannot construe a statue without
regard to its plain and ordinary meaning, and we cannot “resort to subtle or
forced construction in an attempt to limit or expand a statute’s scope.”  Pascal
v. State Election Comm’n, 317 S.C. 434, 437, 454 S.E.2d 890, 892 (1995)
(citation omitted).  Further, if statutes deal with the same subject matter,
we must reconcile them, “if possible, so as to render both operative.”  Hodges,
341 S.C. at 88, 533 S.E.2d at 583 (citing Butler v. Unisun Ins., 323
S.C. 402, 408, 475 S.E.2d 758, 761 (1996)).

Section 41-27-380 of the South Carolina
Code (1986) provides the definition of wages for computing benefits under our
South Carolina Employment Security Law.  Workers’ compensation is neither expressly
included in nor expressly excluded from the definition of wages.  See
S.C. Code § 41-27-380 (1986).

However, we are convinced that workers’
compensation benefits are payments to employees under employers’ plans for a
class of individuals because of sickness or accident disability or expenses
in connection therewith and are implicitly excluded from the statute’s definition
of wages.  Toner’s argument that workers’ compensation is not excluded from
the definition of wages turns on the notion that the workers’ compensation system
is a creature of statute—not one of an employing unit.  Under the laws governing
workers’ compensation, employers may opt out of the program if they prove they
have the ability to pay similar benefits or show they are self-insured.  See
S.C. Code Ann. § 42-5-10 (1976); S.C. Code Ann. § 42-5-20 (Supp. 2004).  In
other words, employers may participate in the workers’ compensation plan or
provide some other means of covering workers.  Such a system of payments is
the very type intended to be excluded by the Legislature from the calculation
of unemployment benefits. This holding is consistent with the way other courts
have decided this issue. See Molnar v. Adm’r, Unemployment Comp. Act
 685 A.2d 1157, 1162 (Conn. Super. Ct. 1995), aff’d, 685 A.2d 1107
(Conn. 1996) (finding reasonable the board of review’s decision that worker’s
compensation payments did not constitute qualifying “wages” for purposes of
calculating unemployment compensation benefits under Connecticut law); Lavin
v. Alton Box Bd. Co., 431 So.2d 202, 203 (Fla. Dist. Ct. App. 1983) (noting
that temporary total disability benefits are not wages to be used in computing
worker’s average weekly wage); Swackhammer v. Unemployment Comp. Bd. of Review,
484 A.2d 851, 853 (Pa. Commw. Ct. 1984) (finding that wages as used in Pennsylvania
unemployment compensation law did not include worker’s compensation benefits
since they are awarded on account of job related disabilities and not in consideration
of personal services).

Toner also argues that inasmuch as vacation
and holiday pay were included in his wages and reported by the employer to the
commission, the definition of wages should be expanded in this case to include
worker’s compensation  payments. We disagree. Vacation and holiday pay were
part of his compensation set by the terms of Toner’s hiring agreement and are
necessarily included in the wages on which the employer is taxed for Employment
Security purposes. See State by Bassett v. Hatcher, 131 S.E.2d
172, 175 (W. Va. 1963); accord Carter v. Bd. of Review Under Oklahoma
Employment Sec. Act, 323 P.2d 362 (Okla. 1958).

Finally, Toner argues that because our
Employment Security Law is remedial social legislation, it should be liberally
construed to include worker’s compensation as wages. In Alton Newton,
we held “[a]s social legislation, the Employment Security Law should be construed
to provide protection to as many employees as possible.”  284 S.C. at 305, 326
S.E.2d at 167 (citations omitted). Nevertheless, Toner has the burden to show
he meets the eligibility requirements of the statute. Hyman v. South Carolina
Employment Sec. Comm’n, 234 S.C. 369, 373, 108 S.E.2d 554, 556 (1959).  
Considering our scope of review, the purpose of the Employment Security Law,
and the language of the statute, we conclude the circuit court was correct in
holding workers’ compensation benefits are excluded from the definition of wages.

CONCLUSION

Because we conclude workers’ compensation benefits
are not wages for the purpose of calculating unemployment benefits, we are constrained
to affirm the order of the circuit court. If there is an element of unfairness
in this decision, any remediation of such a result rests in the hands of the
Legislature.

AFFIRMED.

STILWELL, J., SHORT, J. and CURETON, A.J., concur.