WHEN ARE INJURIES NOT COVERED BY WORKERS’ COMPENSATION IN SC?

Are there situations where an on-the-job injury is not covered by workers’ compensation in SC?

You may think that if you are injured on the job you are automatically covered by workers’ compensation insurance, but there are many situations where your injury will not be covered.

For example, non-employees are not covered, some types of employers are exempt and are not required to carry workers’ compensation insurance, and injuries that were not sustained “in the course of employment” are not covered.

Some of these situations are fact-specific and you should always consult your workers’ compensation attorney before concluding that you are or are not covered by workers’ compensation.

NON-EMPLOYEES ARE NOT COVERED BY WORKERS’ COMPENSATION IN SC

Who qualifies as an employee for workers’ compensation purposes? For some, the answer may not be as simple as they think.

SC Code Section 42-1-130 defines “employee” as:

The term “employee” means every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, including aliens and also including minors, whether lawfully or unlawfully employed, but excludes a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer; and as relating to those employed by the State, the term “employee” includes all members of the South Carolina State and National Guard while performing duties in connection with the membership except duty performed pursuant to Title 10 and Title 32 of the United States Code; all volunteer state constables appointed pursuant to Section 23-1-60, while performing duties in connection with their appointments and authorized by the State Law Enforcement Division; and all officers and employees of the State, except those elected by the people, or by the General Assembly, or appointed by the Governor, either with or without the confirmation of the Senate; and as relating to municipal corporations and political subdivisions of the State, the term “employee” includes all officers and employees of municipal corporations and political subdivisions, except those elected by the people or elected by the council or other governing body of any municipal corporation or political subdivision, who act in purely administrative capacities and are to serve for a definite term of office. Any reference to an employee who has been injured or when the employee is dead, includes also his legal representative, dependents, and other persons to whom compensation may be payable.

The most common exceptions include independent contractors and casual employees.

Independent Contractors

Independent contractors are not covered by SC workers’ compensation law, which means your employer, or their insurance carrier, may go out of their way to classify you as an independent contractor even when you are not.

Even if your employer claims that you are an independent contractor, the court may disagree and decide you are a regular employee based on the facts of your employment. The court considers four factors in determining whether you are truly an independent contractor:

• Whether your employer has the right to control your work – for example, do they have the right to tell you what to do, when and how to complete the work and to discipline you?
• How you are paid – are you paid by another company that contracts with the employer or are you paid directly by the employer? Are you paid on a weekly or bi-weekly basis, or are you paid when the job is finished?
• Whether your employer furnishes your equipment and tools needed for the job, and
• Whether your employer has the right to fire you – if the employer has the right to fire you or terminate the work that you are doing, they have control over you and the court may decide that you are not an independent contractor.

Each factor is considered and weighed in determining whether you are a regular employee or an independent contractor.

Casual Employees

A “casual employee” is also not covered by workers’ compensation. If an employee’s work is not permanent or work is not regularly available, they might be considered a “casual employee.” For example, if a company employs an individual to cut their grass on occasion, but they are not a regular employee, that person may not be covered by workers’ compensation if they are injured.

EMPLOYERS EXEMPTED BY SC WORKERS’ COMPENSATION LAW

Some employers are exempt from SC’s workers’ compensation laws. A list of employers and employees who are exempt, found in SC Code Section 42-1-360, includes:

• Casual employees;
• Employers who have less than four employees or who had a payroll of less than $3000 in the previous calendar year;
• State and county fair associations;
• Agricultural employers;
• Railroad companies;
• Realtors who sell, lease, or rent properties for a real estate broker on commission and who have an independent contractor agreement with the broker;
• Federal employees; and
• Tractor-trailer (or another vehicle) owners who work as an independent contractor driver.

Most of these categories have exceptions, and you should consult with your SC workers’ compensation attorney before deciding you are not covered.

The Injury Must Have Occurred “In the Course of Employment”

The injury must have occurred within the course and scope of your employment – an area that is often litigated by workers’ compensation insurance companies. If you were doing something that was within your job duties at the time of the accident, you are covered.

For example, if you are operating a machine that is part of your job responsibilities and your hand becomes caught in the machine, you are covered. If you fall while putting a roof on a building, and your job was to put a roof on the building, you are covered.

On the other hand, if you are injured in a bar fight when you were supposed to be at the office working on your computer, you are not covered.

Are You Acting Within the Scope of Your Employment if You are Not at the Job Site?

When your job duties require you to drive or travel to other locations, you are still covered by workers’ compensation – for example, if you are a delivery driver, if your boss asks you to run to the store for supplies, or if you are driving to another location to speak to a customer.

If you are doing the job you were hired to do, even if you are not on the job site at the time of the accident, workers’ comp covers you.

Ordinarily, drivingto and from work is not covered by workers’ compensation, although there are exceptions to the rule – if you are not sure, contact your workers’ compensation attorney immediately and get an opinion on whether you have a claim.

GOT AXELROD?

If you have questions about whether your injury is covered or whether your employer is exempted from SC’s workers’ compensation laws, contact Axelrod and Associates today.

Call now and schedule a free consultation with a Myrtle Beach worker’s compensation lawyer on the Axelrod team. Call us at 843-353-3449 or fill out our contact form today.