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Ferguson v. New Hampshire Ins. Co.

Court of Appeals of South Carolina

April 1, 2015

George Ferguson, Claimant, Appellant,
v.
New Hampshire Insurance Company, Carrier for Amerco/U-Haul International, and Sean P. Unterkoefler d/b/a United Stand Moving, Employer, and S.C. Workers' Compensation Uninsured Employers Fund, Respondents

Heard January 13, 2015

Appeal From The Workers' Compensation Commission. Appellate Case No. 2013-001896.

AFFIRMED.

Page 852

Stephen Benjamin Samuels, of Samuels Law Firm, LLC, of Columbia, and Natasha M. Hanna, of Myrtle Beach, for Appellant.

Stanford Ernest Lacy, Peter H. Dworjanyn, and Christian Stegmaier, all of Collins & Lacy, PC, of Columbia, and Ashley Ryon Kirkham, of Turner Padget Graham & Laney, PA, of Columbia, for Respondents Amerco/U-Haul International and New Hampshire Insurance Company; Lisa C. Glover, of the Uninsured Employers' Fund Division of the State Accident Fund, of Columbia, for Respondent SC Workers' Compensation Uninsured Employers Fund; and Sean P. Unterkoefler, Pro se.

SHORT, J. HUFF and KONDUROS, JJ., concur.

OPINION

Page 853

[412 S.C. 207] SHORT, J.:

In this appeal from the Workers' Compensation Commission, George Ferguson argues the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) erred in finding he failed to carry his burden of proving (1) eMove, Inc. was his statutory employer; (2) he was an employee of Sean Unterkoefler d/b/a United Stand Moving (Unterkoefler); and (3) Unterkoefler employed four or more employees during the relevant period, making Unterkoefler an uninsured employer subject to the South Carolina Workers' Compensation Act (the Act). We affirm.

FACTS

eMove operates an internet marketplace where individuals or businesses renting moving trucks can search for and hire local moving companies to assist with loading and/or unloading rental trucks. eMove contracts with local moving companies to provide the loading and unloading services.[1] eMove customers sign up for the moving service on its website and select the moving company of their choice. eMove then sends a text message to the moving company informing them of the customer's booking information. After the job is completed, eMove releases the customer's payment for the services to the moving company, keeping fifteen percent of

Page 854

the total amount paid by the customer for its services.

Unterkoefler[2] executed a contract with eMove in March 2009 to provide moving help to eMove's customers.[3] Unterkoefler testified he took part in a telephone training session with eMove and eMove gave him advice on how to keep its customers happy. eMove also explained what the moving companies could and could not do, including making clear to [412 S.C. 208] Unterkoefler he could not have any side agreements or direct contact with a customer except through eMove.

Unterkoefler provided a labor service to his customers and did not have a moving truck or equipment. He used rental moving trucks, blankets, dollies, and other items supplied by his customers. He also set the days and times he would perform moving services and set his own rates, times, and coverage areas. Unterkoefler operated the moving business himself, and when he could not complete the job on his own due to the size or having multiple jobs at the same time, he asked for help or gave the job to someone else. He paid whomever he worked with per job in cash and did not take any money for himself unless he participated in the job. Ferguson testified he performed approximately ten to fifteen moving jobs between April/May 2010 and August 2010 and he worked with three other movers at various times.

Ferguson was working part time for Unterkoefler on August 21, 2010, when he injured his right hand while moving a washer/dryer unit. On August 27, 2010, Ferguson had surgery on his small right finger. He did not allege an injury to his right shoulder until after his deposition in March 2012.

Ferguson filed a Form 50, seeking workers' compensation benefits from the August 21 accident. He claimed injuries to his right hand and right arm. He served the form on United Stand Moving, eMove, New Hampshire Insurance Company, and the South Carolina Uninsured Employers Fund (the Fund).[4] eMove and New Hampshire Insurance Company filed a Form 51, denying all allegations made by Ferguson. Ferguson filed an amended Form 50, claiming injuries to his right shoulder, right hand, right arm, and right knee. eMove and the Fund each filed a Form 51 in response. Unterkoefler did not make a formal appearance in the case and did not file any pleadings; however, his deposition was taken.

After a hearing, the single commissioner denied benefits and dismissed the case. The commissioner found Ferguson [412 S.C. 209] failed to prove he was an employee of Unterkoefler and failed to prove eMove was his statutory employer. Ferguson filed a Form 30 Notice of Appeal, and ...


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