Shuler v. Gregory Electric , 366 S.C. 435 ( 2005 )

KITTREDGE, J.,

dissenting:

I respectfully dissent, for I believe that Linda Shuler’s November 18, 2001, motor vehicle accident — following the unscheduled doctor’s appointment — did not arise out of and in the course of her employment with Gregory Electric. I would reverse.

Since the essential facts are undisputed, the question before us is one of law. Gibson v. Spartanburg Sch. Dist. No. 3, 338 S.C. 510, 517, 526 S.E.2d 725, 729 (Ct.App.2000).

The disposition of this appeal requires a proper understanding and application of the statutory requirement that an injury, to be compensable, must “aris[e] out of and in the course of the employment.” S.C.Code Ann. § 42-1-160 (Supp. 2004). . I find our supreme court’s decision in Douglas v. Spartan Mills, Startex Division, 245 S.C. 265, 140 S.E.2d 173 (1965), persuasive, both factually and legally.

There, David Douglas filed a workers’ compensation claim against his employer, Spartan Mills. The Industrial Commission, predecessor to the Workers’ Compensation Commission, scheduled a hearing at the Spartanburg Courthouse on the morning of September 20, 1961. Douglas misread the hearing notice and reported for work that morning at the Startex plant. A supervisor notified Douglas of the hearing about one hour before the hearing was to begin. Douglas left work, drove home to change clothes and then headed to the courthouse, about a three-mile drive. Douglas was injured in a motor vehicle accident en route to the courthouse. The accident was caused by a defective steering mechanism. Douglas filed a claim for compensation as a result of the September 20 accident. Id. at 267, 140 S.E.2d at 174.

The Commission found Douglas had sustained a compensable injury by accident, arising out of and in the course of employment. Id. at 266, 140 S.E.2d at 173. The circuit court affirmed. Our supreme court reversed and held, as a matter of law, that Douglas’s injury did not arise out of and in the course of his employment:

While the Workmen’s Compensation Act has to be construed liberally in favor of coverage, and doubtful cases should be resolved in favor of the injured employee, we think the accident here clearly did not arise out of and in the course of the employment of the claimant, within the intent of the legislature in enacting the Workmen’s Compensation Act.

Id. at 270, 140 S.E.2d at 175-176

The court’s discussion of the separate elements — “arising out of’ and “in course of employment” — is helpful in determining the compensability of Shuler’s accident following her visit to the doctor on November 18, 2001. Both elements must be present for an accident to be compensable, and they must be concurrent and simultaneous. Id. at 268, 140 S.E.2d at 174. “ ‘[T]he words ‘arising out of refer to the origin of the cause of the accident, while the words ‘in the course of employment,’ have reference to the time, place and circumstances under which the accident occurs.’ ” Id. at 268-69, 140 S.E.2d at 175 (quoting Eargle v. S.C. Elec. & Gas Co., 205 S.C. 423, 32 S.E.2d 240 (1944)).

An injury “arises out of’ the employment when a causal connection exists between the conditions under which the work is required to be performed and the resulting injury. Douglas, 245 S.C. at 269, 140 S.E.2d at 175 (quoting In re Employers’ Liab. Assurance Corp., 215 Mass. 497, 102 N.E. 697 (1913)). The court described this causal link as follows:

Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.

Id.

With respect to the requirement that the accident arise “in the course of employment,” the court explained:

An injury arises in the course of employment within the meaning of the Workmen’s Compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties, or engaged in doing something incidental thereto.

Douglas, 245 S.C. at 269, 140 S.E.2d at 175 (quoting Fowler v. Abbott Motor Co., 236 S.C. 226, 113 S.E.2d 737 (1960)).

Applying these rules of reason to Douglas’s accident while en route from work to his workers’ compensation hearing, the supreme court found the accident “was clearly not a compensable one. The causative danger here was the defective steering apparatus on the claimant’s automobile, which we think was clearly independent of the relation of master and servant and not incidental to the character of the business or the employment.” Douglas, 245 S.C. at 270, 140 S.E.2d at 175.

I think it is at least equally clear that Shuler’s November 18 accident, following her doctor’s visit for a prior work-related injury, lacked the requisite causal connection to her employment and was in no manner incidental to the character of her employment with Gregory Electric. Under Douglas, the accident must result from some exposure peculiar to the employment, and not a hazard to which all workers are equally exposed. Id. at 269, 140 S.E.2d at 175. Additionally, the injury arises in the course of employment only when it occurs at a place where the employee reasonably may be in the performance of her duties or “something incidental thereto.” Id. The accident occurred while Shuler was driving her own vehicle on a public road. Her duties as an employee did not require anything of her at the time and place of the accident. See id. at 270, 140 S.E.2d at 175. Instead, the doctor’s visit was required only for compensation under the statute.

The majority assigns significance to an injured employee’s statutory obligation to pursue required medical treatment as a condition of continued entitlement to workers’ compensation benefits. I do not view this “duty to submit to treatment” as a sufficient nexus to employment to satisfy the “arising out of’ and “in course of employment” elements.

An employee does not need a statute to know there is a duty to report to work, for an employee must show up at work to keep her job. Yet we readily acknowledge that under normal circumstances the “going and coming” rule would preclude recovery to an employee injured while traveling to or from work. See McDaniel v. Bus Terminal Rest. Mgmt. Corp., 271 S.C. 299, 302, 247 S.E.2d 321, 322 (1978) (holding that pursuant to the “going and coming” rule, injuries sustained while an employee is going to or coming from work generally are not compensable because the injuries do not arise out of and in the course of employment.) The rationale for the rule is straightforward — traveling risks are those shared by public.

Were Shuler going to or from her job at Gregory Electric, I do not believe we would entertain the notion that an accident was work-related. Application of the “going and coming” rule would foreclose such a claim. Since the court today professes continued adherence to the “going and coming” rule, it seems to me that today’s policy decision — the finding of a compensable, work related injury — would serve to favor those going to or from a doctor’s visit over those employees actually working who must travel to and from work. I do not understand the policy reasons for elevating the rights of those going to and from the doctor’s office over workers traveling to and from work.

I believe that the Douglas holding and analysis controls here, and I would not resort to canvassing the law in other states, where the decisions predictably go both ways. I would follow the lead of our supreme court in Douglas:

If it is the intent of the legislature to include within the terms of the Workmen’s Compensation Act employees injured while engaged in activities not in the course of their employment, though arising indirectly by reason of their employment, then the Act will have to be accordingly amended.

Douglas, 245 S.C. at 270-271, 140 S.E.2d at 176 (quoting Fountain v. Hartsville Oil Mill, 207 S.C. 119, 32 S.E.2d 11 (1945)). See also Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 110, 580 S.E.2d 100, 105 (2003) (holding that because workers’ compensation statutes provide an exclusive compensatory system in derogation of common law rights, they must be strictly construed, leaving ambiguities to be resolved by the legislature).

The General Assembly has yet to accept this now 40-year-old invitation to amend the Workers’ Compensation Act to provide for coverage in such circumstances. Nor has our supreme court sought to retreat from its holding in Douglas. Based on my view of prevailing South Carolina law, I would reverse the award of worker’s compensation benefits to the estate of Linda Shuler.