Hernandez-Zuniga v. Tickle

Decision Date14 June 2007
Docket NumberNo. 4253.,4253.
Citation647 S.E.2d 691
CourtSouth Carolina Court of Appeals
PartiesRocque HERNANDEZ-ZUNIGA, Appellant, v. Andrew TICKLE and South Carolina Uninsured Employers Fund, Respondents.

Tiffany R. Spann-Wilder, of North Charleston, for Appellant.

Terri Morrill Lynch, of Charleston, for Respondents.


The Appellate Panel of the South Carolina Workers' Compensation Commission ("SCWCC") found Andrew Tickle ("Tickle") did not regularly employ four or more employees. Accordingly, the Appellate Panel did not have jurisdiction to award benefits to Hernandez-Zuniga ("Claimant"). The circuit court affirmed the Decision and Order of the Appellate Panel. We affirm.1


Claimant sustained his injury on May 10, 2003 when he fell from a ladder while painting for his employer, Tickle. He sought temporary disability benefits and medical treatment under the South Carolina Workers' Compensation Act (Act). Tickle claimed he was not subject to the Act because he regularly employed less than four workers.

At the time of his hearing, Claimant was a twenty-one year old Honduran with a sixth grade education who had been in the United States four years working as a painter. He began working for Tickle some time in the spring of 2003. Claimant worked eight hours a day and some weekends, earning ten dollars per hour. Tickle paid him directly, once a week, in cash. After commencing work for Tickle, Claimant worked regularly for approximately one month, until the day he fell. Claimant believed he would have continued employment with Tickle had he not been injured.

Claimant undertook three projects for Tickle — one project painting beach chairs and two house-painting projects. Two people, Claimant and Alle Hernandez (Alle),2 worked on the beach chairs project. Claimant, Alle, and Victor Valdez (Victor) began painting the first house owned by the Garretts. Claimant and Alle subsequently went to the Hewitt3 home while Victor purportedly continued work on the Garrett house. Franklin Hernandez-Zuniga (Franklin) allegedly joined Claimant and Alle at the Hewitt home, the site where Claimant fell. Claimant believed Franklin began work the day before the accident and quit shortly after Claimant was injured. Victor moved to the Hewitt project after Claimant's accident.

Tickle left his previous employer, the Finish Company, in 2003 and started his own business as a painting contractor. He claimed he initially arranged with Claimant and the other workers to supply all the paint for the Garrett house, get a draw each week, and divide the proceeds with them, in cash, without tax deductions. Ultimately he paid them weekly wages at an hourly rate. Tickle explained he hired the workers "project by project" because he had not yet established his company. Claimant and his co-workers provided their own brushes and caulk guns. Tickle acknowledged he agreed to pay them a flat fee of $1000 to paint the Hewitt house. Claimant did not complete the Hewitt project because of his injury, so Tickle paid him hourly for work completed.

Tickle asseverated there were never more than three people working for him in April or May 2003. He thought someone helped finish up after Claimant fell but denied knowing anyone named Franklin working on the projects. Beth Garrett, owner of the first house Tickle's crew painted, maintained she never observed more than three people working on her home.

Tickle obtained a business license on June 26, 2003 and established Tickle Tools in July 2003. He declared he conducted no official business as Tickle Tools before July 21, 2003.

The hearing commissioner found:

The evidence established that upon the jobs where the Claimant worked there were only two (2) individuals on the first and three (3) on the second. The only evidence of employment of four (4) employees, which is conflicting, was for a day or two. Therefore, the Claimant did not meet his burden of proving the Employer "regularly" employed four or more employees.

Accordingly, the hearing commissioner ruled Claimant was not entitled to benefits under the Workers' Compensation Act because Tickle did not regularly employ four (4) or more employees as required by section 42-1-150 of the South Carolina Code of Laws (Supp. 2006). Consequently, the South Carolina Workers' Compensation Commission lacked jurisdiction to address the claim. The Appellate Panel affirmed the hearing commissioner's ruling and adopted his Decision and Order in its entirety. The circuit court affirmed.


Did the Claimant demonstrate by a preponderance of the evidence that Tickle regularly employed four or more employees and was subject to the South Carolina Workers' Compensation Act?


Judicial review of a Workers' Compensation decision is governed by the substantial evidence rule of the Administrative Procedures Act. Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006); Shealy v. Aiken County, 341 S.C. 448, 454, 535 S.E.2d 438, 442 (2000). However, if the factual issue before the Commission involves a jurisdictional question, this court's review is governed by the preponderance of evidence standard. Nelson v. Yellow Cab Co., 343 S.C. 102, 108, 538 S.E.2d 276, 279 (Ct. App.2000) aff'd 349 S.C. 589, 564 S.E.2d 110 (2002); Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d, 585, 586 (1993); Porter v. Labor Depot, 372 S.C. 560, 643 S.E.2d 96 (Ct.App. 2007); Cooke v. Palmetto Health Alliance, 367 S.C. 167, 173, 624 S.E.2d 439, 441 (Ct. App.2005); Edens v. Bellini, 359 S.C. 433, 440, 597 S.E.2d 863, 867 (Ct.App.2004); Simons v. Longbranch Farms, Inc., 345 S.C. 277, 280, 547 S.E.2d 500, 502 (Ct.App.2001); Lake v. Reeder Constr. Co., 330 S.C. 242, 248, 498 S.E.2d 650, 654 (Ct.App.1998). Consequently, our review is not bound by the Commission's findings of fact on which jurisdiction is based. Canady v. Charleston County Sch. Dist., 265 S.C. 21, 25, 216 S.E.2d 755, 757 (1975). A reviewing court has both the power and duty to review the entire record, find jurisdictional facts without regard to conclusions of the Commission on the issue, and decide the jurisdictional question in accord with the preponderance of evidence. Id.; see also Kirksey, 314 S.C. at 45, 443 S.E.2d at 804 (holding this court can find facts in accordance with the preponderance of evidence when determining a jurisdictional question in a Workers' Compensation case); Sanders v. Litchfield Country Club, 297 S.C. 339, 342, 377 S.E.2d 111, 113 (Ct.App.1989) (deciding where a jurisdictional issue is raised, this court must review record and make its own determination whether the preponderance of evidence supports the Commission's factual findings bearing on that issue).

Workers' compensation statutes are construed liberally in favor of coverage, and South Carolina's policy is to resolve jurisdictional doubts in favor of the inclusion of employees within workers' compensation coverage. Nelson v. Yellow Cab Co., 343 S.C. 102, 109, 538 S.E.2d 276, 279 (Ct.App.2000) aff'd 349 S.C. 589, 564 S.E.2d 110 (2002) (citing Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639 (1992); O'Briant v. Daniel Constr. Co., 279 S.C. 254, 305 S.E.2d 241 (1983); Horton v. Baruch, 217 S.C. 48, 59 S.E.2d 545 (1950); Spivey v. D.G. Constr. Co., 321 S.C. 19, 467 S.E.2d 117 (Ct.App.1996); McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct.App.1984)).

In determining such jurisdictional questions, it must be kept in mind that the basic purpose of the Workmen's Compensation Act is the inclusion of employers and employees within its coverage and not their exclusion, and doubts of jurisdiction will be resolved in favor of inclusion rather than exclusion. However, a construction should not be adopted that does violence to the specific provisions of the Act. White v. J.T. Strahan Co., 244 S.C. 120, 135 S.E.2d 720, 723 (1964)

While the appellate court may take its own view of the preponderance of evidence on the existence of an employer-employee relationship, the final determination of witness credibility is usually reserved to the Appellate Panel. See Dawkins v. Jordan, 341 S.C. 434, 441, 534 S.E.2d 700, 704 (2000) (citing Ford v. Allied Chem. Corp., 252 S.C. 561, 167 S.E.2d 564 (1969)).


Claimant contends the circuit court erred in finding Tickle was not an employer subject to the Workers' Compensation Act because he did not have four or more persons regularly employed. Specifically, Claimant maintains that four workers were Tickle's regular employees, and three individuals were his statutory employees. We disagree.

"The issue of whether an employer regularly employs the requisite number of employees to be subject to the Workers' Compensation Act is jurisdictional." Harding v. Plumley, 329 S.C. 580, 584, 496 S.E.2d 29, 31 (Ct.App.1998). The question of subject matter jurisdiction is a question of law. Gray v. Club Group, Ltd., 339 S.C. 173, 183, 528 S.E.2d 435, 440 (Ct.App.2000); Roper Hosp. v. Clemons, 326 S.C. 534, 536, 484 S.E.2d 598, 599 (Ct.App.1997). On appeal from the Workers' Compensation Commission, this court may reverse where the decision is affected by an error of law. S.C.Code Ann. § 1-23-380(A)(5) (Act No. 387, 2006 S.C. Acts 387, eff. July 1, 2006); Stephen v. Avins Constr. Co., 324 S.C. 334, 337, 478 S.E.2d 74, 76 (Ct.App.1996).

Pellucidly, the appellate court's standard of review in cases involving jurisdictional questions is not a substantial evidence standard. Our precedent lucidly establishes that an appellate court reviews jurisdictional issues by making its own findings of fact without regard to the findings and conclusions of the Appellate Panel. Harding, 329 S.C. at 584, 496 S.E.2d at 31 (citing Kirksey, 314 S.C. at 45, 443 S.E.2d at 804). Furthermore, the appellate court evaluates the record and resolves the...

To continue reading

Request your trial
30 cases
  • Coastal Conservation v. Dept. of Health
    • United States
    • South Carolina Court of Appeals
    • October 23, 2008
    ...measure of review is the substantial evidence rule. S.C.Code Ann. § 1-23-380(A)(5) (Supp.2007); see Hernandez-Zuniga v. Tickle, 374 S.C. 235, 242, 647 S.E.2d 691, 694 (Ct.App.2007); Hall v. United Rentals, Inc., 371 S.C. 69, 78-79, 636 S.E.2d 876, 881 (Ct. App.2006) (citing Lark v. Bi-Lo, I......
  • Simon Seeding & Sod, Inc. v. Dubuque Human Rights Comm'n
    • United States
    • Iowa Supreme Court
    • May 19, 2017
    ...between coverage and exemption as its labor force exceeds or falls below the minimum from day to day." Hernandez-Zuniga v. Tickle , 374 S.C. 235, 647 S.E.2d 691, 696 (2007) (quoting 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law §§ 74.01–.02 (2000)). We assume "when a l......
  • Posey v. Proper Mold & Engineering, Inc.
    • United States
    • South Carolina Court of Appeals
    • April 29, 2008
    ...had subject matter jurisdiction to determine whether Eddie was a statutory employee of PME/Autegra. Hernandez-Zuniga v. Tickle, 374 S.C. 235, 252, 647 S.E.2d 691, 699 (Ct.App.2007) ("The question of whether a worker is a statutory employee is jurisdictional and is therefore a question of la......
  • Paschal v. Price
    • United States
    • South Carolina Court of Appeals
    • November 4, 2008
    ...the final determination of witness credibility is usually reserved to the Appellate Panel." Hernandez-Zuniga v. Tickle, 374 S.C. 235, 243-44, 647 S.E.2d 691, 695 (Ct. App.2007). Furthermore, the appellant has the burden to show the circuit court's finding regarding jurisdiction is against t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT