Broughton v. South of the Border

• Court: South Carolina Court of Appeals
• Writing for the Court: ANDERSON.
• Citation: Broughton v. South of the Border, 520 S.E.2d 634, 336 S.C. 488 (S.C. App. 1999)
• Decision Date: 06 July 1999
• Docket Number: No. 3024.,3024.
• Parties: Vickie BROUGHTON, Employee, Respondent, v. SOUTH OF THE BORDER, Employer, and Schafer Company, Inc., Insurance Department, Insurer, Appellants.

336 S.C. 488

520 S.E.2d 634

Vickie BROUGHTON, Employee, Respondent, v. SOUTH OF THE BORDER, Employer, and Schafer Company, Inc., Insurance Department, Insurer, Appellants.

No. 3024.

Court of Appeals of South Carolina.

Heard June 10, 1999.

Decided July 6, 1999.

Rehearing Denied August 28, 1999.

F. Earl Ellis, Jr., and Daniel W. Hayes, both of Ellis, Lawhorne & Sims; and James B. Richardson, Jr., of Svalina, Richardson & Larson, all of Columbia, for Appellants.

Frederick M. Zeigler, of Columbia; and James H. Renfrow, of Dillon, for Respondent. ANDERSON, Judge:

In this Workers' Compensation action, South of the Border appeals from the Circuit Court's affirmance of the Full Commission's order awarding benefits to Vickie Broughton. South of the Border contends Broughton failed to establish her injuries arose out of and in the course of her employment. We reverse.

FACTS/PROCEDURAL BACKGROUND

Broughton worked for South of the Border as a Kardex clerk for twenty-four years. Broughton's duties included monitoring daily inventory, purchasing additional merchandise from suppliers, reviewing samples, keying sales tickets into the computer daily, and conducting a physical inventory annually. Broughton's normal duties did not generally require leaving her office and never required leaving South of the Border's premises.

When Broughton's supervisors, Patty Schafer and Ann Tyndall, were absent, Broughton and a co-employee assumed responsibility for the office and handled work questions from other employees. However, Broughton lacked any supervisory authority and did not exercise a supervisory role over any other employees.

At the hearing before the Single Commissioner, the parties stipulated to the following facts:

On February 3, 1996 the claimant came into work and read a note from a co-worker who's name is Rhonda Mims. This note from Ms. Mims indicated that she was sick and unable to come to work and wanted someone to check on her. The claimant decided to leave her work place and go check on Ms. Mims, the co-worker. The claimant's supervisor was not yet at the work place. The claimant has no supervisory duties over this co-worker or any other. When the claimant went to visit the co-worker, she slipped and fell at the co-worker's house and broke her leg. (Emphasis added).

It is clear from the testimony that the claimant did not clock out of work to leave the work place to go visit the co-worker. It is also clear that the policy of the employer is that when any employee leaves work for any reason they are to clock out. The claimant's normal duties do not take her away from the work place. The claimant's supervisor testified that had she been there, she would not have approved the claimant leaving work to go check on Rhonda Mims.

On the day of her accident, Broughton began working at approximately 8:10 a.m. and assumed responsibility for the office because both Schafer and Tyndall were absent. Upon her arrival at work, Broughton read a note written and delivered to South of the Border by Mims. The letter stated: "I've been up all night sick, I have a temperature of over 101 and I feel delirious, would someone please check on me?" Mims left the note on a table in the Kardex room. It was not addressed specifically to Broughton.

Broughton left work to check on Mims because Mims did not have a telephone and Broughton felt responsible for responding to the note. Although Broughton testified all employees and supervisors must clock out when leaving for personal matters, Broughton left to check on Mims without clocking out. Mims lives about one mile from South of the Border.

After checking on Mims, Broughton injured her left leg when she slipped walking down Mims's stairs. South of the Border agreed Broughton sustained injuries as a result of the fall and conceded all medical treatment rendered thus far was necessary.

According to Broughton, she and Mims had no social interaction outside of their employment relationship. However, Broughton conceded going to Mims's house with other co-workers for dinner on at least one occasion. Broughton stated that even if she had not been working she would still have checked on Mims.

Claudette Hunt, Broughton's co-worker, said company policy prohibited leaving for personal reasons without clocking out. She declared working as a Kardex clerk never required leaving the office. Ann Tyndall testified company policy required all employees, even supervisors, to clock out anytime they left the premises but acknowledged failing to clock out when she left to assist Broughton after she fell from Mims's stairs. Tyndall would have required Broughton to clock out before leaving to check on Mims because she believed the visit constituted a personal matter. Tyndall would not have left to check on Mims because she felt Mims could drive herself to the hospital if she could drive herself to work and leave a note.

Broughton filed a Form 50 seeking compensation for medical treatment and disability benefits. In its Form 51, South of the Border admitted Broughton sustained an injury but denied benefits asserting Broughton "was on a personal errand" at the time of the injury and, thus, the injury did not arise out of and in the course of her employment.

The Single Commissioner found Broughton failed to establish her injury arose out of and in the course of her employment. The Commissioner ruled Broughton had neither the express nor implied permission of South of the Border to leave the work place and go check on the health of a co-worker as this was not part of her employment. The Full Commission reversed. The Circuit Court affirmed.

ISSUE

Did the Circuit Court err in affirming the Full Commission's finding Broughton's injury arose out of and in the course of her employment with South of the Border?

STANDARD OF REVIEW

In reviewing a Workers' Compensation decision, an appellate court may not substitute its judgment for that of an agency as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Tiller v. National Health Care Ctr., 334 S.C. 333, 513 S.E.2d 843 (1999); Clade v. Champion Laboratories, 330 S.C. 8, 496 S.E.2d 856 (1998). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Miller v. State Roofing Co., 312 S.C. 452, 441 S.E.2d 323 (1994); Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991). The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence. Hicks v. Piedmont Cold Storage, 335 S.C. 46, 515 S.E.2d 532 (1999); Medlin v. Upstate Plaster Serv., 329 S.C. 92, 495 S.E.2d 447 (1998). It is not within our province to reverse findings of the Commission which are supported by substantial evidence. Hunter v. Patrick Constr. Co., 289 S.C. 46, 344 S.E.2d 613 (1986). See Tiller, supra (appellate court must affirm findings of fact made by Commission if they are supported by substantial evidence). A court may reverse or modify the Commission's decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are affected by other error of law. Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996).

LAW/ANALYSIS

South of the Border contends the Circuit Court erred in affirming the Full Commission's finding Broughton's injuries arose out of and in the course of her employment. We agree.

"Injury By Accident Arising Out of and in the Course of the Employment"

"The South Carolina Workers' Compensation Act requires that, to be compensable, an injury by accident must be one `arising out of and in the course of employment.'" Osteen v. Greenville County Sch. Dist., 333 S.C. 43, 49, 508 S.E.2d 21, 24 (1998). See also S.C.Code Ann. § 42-1-160 (Supp.1998). The question of whether an accident arises out of and is in the course and scope of employment is largely a question of fact for the Full Commission. The claimant has the burden of proving facts that will bring the injury within the Workers' Compensation law. Clade v. Champion Laboratories, 330 S.C. 8, 496 S.E.2d 856 (1998).

The two parts of the phrase "arising out of and in the course of employment" are not synonymous. Osteen, supra. Both parts must exist simultaneously before any court will allow recovery. Id.

I. "Arising Out Of"

The phrase "arising out of in the Workers' Compensation Act refers to the injury's origin and cause. Osteen, supra; Baggott v. Southern Music, Inc., 330 S.C. 1, 496 S.E.2d 852 (1998). For an injury to "arise out of employment, the injury must be proximately caused by the employment. Osteen, supra. See also Fowler v. Abbott Motor Co., 236 S.C. 226, 113 S.E.2d 737 (1960) (accident "arises out of employment when it arises because of it, as when the employment is a contributing proximate cause). The injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Osteen, supra. In Douglas v. Spartan Mills, Startex Div., 245 S.C. 265, 140 S.E.2d 173 (1965), our Supreme Court discussed the "arising out of requirement:

"`It (the injury) arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. 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

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