May 3, 2017
From The Workers' Compensation Commission
Richard C. Detwiler and Jacqueline M. Pavlicek, of Callison,
Tighe & Robinson, LLC, of Columbia, for Appellants.
Fredrick Goings, of Goings Law Firm, LLC, of Columbia, for
appeal from the Appellate Panel of the South Carolina
Workers' Compensation Commission (the Commission),
Appellant Tech Service, Inc. (Tech Service) argues the
Commission erred in (1) finding Respondent Stacey Sellers was
a Tech Service employee, rather than an independent
contractor, at the time of his injury and (2) basing its
determination on immaterial information. We affirm.
and Procedural Background
November 8, 2013, Sellers sustained injuries while performing
heating, ventilation, and air conditioning (HVAC)
construction at a single-family home in the Market Commons
subdivision in Myrtle Beach (City). Sellers fell from a
thirty-foot extension ladder while he was "trimming
out" a house and sustained injuries to his legs, back,
and neck. He was subsequently hospitalized.
November 9, Sellers notified Riverport Insurance Company
(Riverport) of his accident. On November 20, Riverport's
third-party claims administrator denied the claim because
Sellers had "knowingly and voluntarily" excluded
himself from its workers' compensation insurance
policy. That same day, Sellers filed a Form 50
naming Tech Service of Myrtle Beach, LLC (TSMB) as a party to
his case and requesting a hearing. On December 13, 2013,
Sellers filed an amended Form 50 naming Tech Service as a
March 25, 2014 hearing before the single commissioner,
Sellers testified he was a longtime employee of both Tech
Service and TSMB and was working in the course and scope of
this employment at the time of his accident. Sellers
explained that his first cousin, Tracy Davis, is the owner of
Tech Service and a co-owner of TSMB.
early 2013, Sellers complained to Davis about not receiving
proper overtime pay and deductions from his paycheck.
According to Sellers, Davis occasionally avoided paying
overtime by separating the hours Sellers worked between Tech
Service and TSMB. Sellers testified Davis offered to make him
a "1099 employee" and help Sellers with his taxes
when he filed. Sellers stated Davis gave him $1, 250 in
cash and instructed him to purchase his own workers'
compensation insurance policy for "tax purposes
only." On February 21, 2013, Sellers purchased the
Riverport policy but excluded himself from it because he
believed he was covered by Tech Service's policy.
March 2013, Davis began paying Sellers without deducting for
income taxes and reporting his wages using a Form 1099 rather
than a Form W-2. Although Sellers performed "side
work" to make extra money both before and after the
March 2013 payment change, he denied signing an independent
contractor agreement or otherwise changing his employment
relationship with Tech Service. Beginning March 4, however,
Sellers submitted weekly "Sellers Heating and
Cooling" invoices to Tech Service for payment as
directed by Davis.
contrary, Davis testified Sellers first approached him in
January 2013 about his desire to work for himself as a
subcontractor because he wanted to make more money. Davis
denied that Sellers ever complained about not receiving
proper overtime pay or deductions from his paycheck. However,
Davis had no documentation reflecting the purpose and nature
of his deductions from Sellers's pay. Davis told Sellers
he could begin working as a subcontractor after he obtained a
workers' compensation insurance policy and adamantly
denied giving Sellers cash to purchase the policy. Davis
explained that if he were going to give Sellers such funds,
he would have given him a check to document the expenditure
for his own business records. Davis learned about
Sellers's accident from Tech Service supervisor Jacob
Hamilton. Both Hamilton and Davis told Sellers he could not
file a claim under Tech Service's policy because recently
audited documents reflected Sellers was a subcontractor.
order dated August 29, 2014, the single commissioner
determined Sellers was an employee of Tech Service at the
time of his injury pursuant to section 42-1-130 of the South
Carolina Code (2015). The single commissioner dismissed TSMB. On
July 17, 2015, the Commission affirmed and adopted the single
commissioner's order in its entirety.
Administrative Procedures Act (APA) establishes the standard
for our review of Commission decisions. Lark v. Bi-Lo,
Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981).
Under the APA, this court may reverse or modify the decision
of the Commission when the substantial rights of the
appellant have been prejudiced because "the decision is
affected by an error of law or is clearly erroneous in view
of the reliable, probative, and substantial evidence on the
whole record." Transp. Ins. Co. & Flagstar Corp.
v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699
S.E.2d 687, 689-90 (2010); S.C. Code Ann.
§1-23-380(5)(d)-(e) (Supp. 2016). Because the existence
of an employer-employee relationship is a jurisdictional
question, "the [c]ourt may take its own view of the
preponderance of the evidence." Shatto v. McLeod
Reg'l Med. Ctr., 406 S.C. 470, 475, 753 S.E.2d 416,
419 (2013) (quoting Wilkinson ex rel. Wilkinson v.
Palmetto State Transp. Co., 382 S.C. 295, 299, 676
S.E.2d 700, 702 (2009)). However, "this broader scope of
review does not require this [c]ourt to ignore the findings
of the Commission, which was in a superior position to
evaluate witness credibility." Paschal v.
Price, 392 S.C. 128, 133, 708 S.E.2d 771, 773 (2011).
presented with the question of whether Sellers was, at the
time of his injury, an employee of Tech Service rather than
an independent contractor. "No award under the Workers'
Compensation Law is authorized unless the employer-employee
or master-servant relationship existed at the time of the
alleged injury for which [a] claim is made." McLeod
v. Piggly Wiggly Carolina Co., 280 S.C. 466, 469, 313
S.E.2d 38, 39 (Ct. App. 1984). "The burden of proving
the relationship of employer and employee is upon the
claimant, and this proof must be made by the greater weight
of the evidence." Lewis v. L.B. Dynasty, 411
S.C. 637, 641, 770 S.E.2d 393, 395 (2015). "South
Carolina's policy is to resolve jurisdictional doubts in
favor of the inclusion of employers and employees under the
Workers' Compensation Act." Spivey v. D.G.
Constr. Co., 321 S.C. 19, 21-22, 467 S.E.2d 117, 119
(Ct. App. 1996).
South Carolina law, the primary consideration in determining
whether an employer/employee relationship exists is whether
the alleged employer has the right to control the employee in
the performance of the work and the manner in which it is
done." Paschal, 392 S.C. at 132, 708 S.E.2d at
773. "The test is not the actual control exercised, but
whether there exists the right and authority to control and
direct the particular work or undertaking." Id.
(quoting Kilgore Grp., Inc. v. S.C. Emp't Sec.
Comm'n, 313 S.C. 65, 68, 437 S.E.2d 48, 49 (1993)).
The four employment test factors regarding the right of
control include: "(1) direct evidence of the right or
exercise of control; (2) furnishing of ...