Lopez-Celestin v. Reeves Young, LLC

• Docket Number: 2023-UP-219,Appellate Case 2020-000739
• Decision Date: 07 June 2023
• Parties: Jorge Lopez-Celestin, Claimant, Appellant, v. Reeves Young, LLC, and Holder Construction Group, Employers, and Amerisure Insurance Company, and American Zurich Insurance Company, Carriers, Defendants, of whom Reeves Young, LLC and Amerisure Insurance Company are Respondents.
• Court: South Carolina Court of Appeals

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Jorge Lopez-Celestin, Claimant, Appellant, v. Reeves Young, LLC, and Holder Construction Group, Employers, and Amerisure Insurance Company, and American Zurich Insurance Company, Carriers, Defendants, of whom Reeves Young, LLC and Amerisure Insurance Company are Respondents.

No. 2023-UP-219

Appellate Case No. 2020-000739

Court of Appeals of South Carolina

June 7, 2023

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard April 12, 2023

Appeal From The Workers' Compensation Commission

C Daniel Vega and James David George, Jr., both of Smith, Born Leventis, Taylor & Vega, LLC, of Columbia, for Appellant.

Jason Alexander Griggs, of Willson Jones Carter & Baxley, P.A. of Greenville, and Marina Lynn Goewey, of Greenville, for Respondents.

PER CURIAM.

Jorge Lopez-Celestin sought workers' compensation benefits for an injury he sustained while driving home from work on an out-of-state job. The Workers' Compensation Commission determined Lopez-Celestin was not in the course of employment under the "going and coming" rule. Lopez-Celestin argues his injury was compensable because Reeves Young-his employer-was paying him more while he worked the out-of-state job.

There is some suggestion that Lopez-Celestin argues the "special errand" exception to the going and coming rule applies. We do not read Lopez-Celestin's appellate briefs as making that argument. Instead, his entire argument is directed to the "travel compensation" exception. See Jinks v. Richland County, 355 S.C. 341, 344 n.3 585 S.E.2d 281, 283 n.3 (2003) (deeming an issue the appellant failed to argue in its brief abandoned).

As far as the "travel compensation" exception is concerned, substantial evidence supports the commission's finding that it does not apply to the facts of this case. See Sola v. Sunny Slope Farms, 244 S.C. 6, 14, 135 S.E.2d 321, 326 (1964) (explaining the rule and exception); Gadson v. Mikasa Corp., 368 S.C. 214, 221, 628 S.E.2d 262, 266 (Ct. App. 2006) (setting out the substantial evidence standard of review). The amount of additional money Reeves Young paid Lopez-Celestin did not depend on the distance he traveled. Cf. McMillan v. Huntington &Guerry Elec. Co., 277 S.C. 552, 553, 290 S.E.2d 810, 811 (1982) (involving an increase in hourly wage by an amount that depended on the distance from the employer's office to the job site); Eadie v. H.A. Sack Co., 322 S.C. 164, 167, 470 S.E.2d 397, 399 (Ct. App. 1996) (involving the payment of twenty-two cents for every mile driven to and from the job site); Gray v. Club Grp., Ltd., 339 S.C. 173, 179, 528 S.E.2d 435, 438 (Ct. App. 2000) (involving the payment of money for mileage). Reeves Young did not offer Lopez-Celestin a company vehicle, and the record does not indicate that Lopez-Celestin used his personal vehicle for work-related purposes on site, for transporting supplies, or for any other purpose that benefitted Reeves Young. Cf. Eadie, 322 S.C. at 167, 170, 470 S.E.2d at 399-400 (involving payment in lieu of a company vehicle because none were available, which the court found was equivalent to providing a company vehicle); id. at 170, 470 S.E.2d at 400 (stating the employee's personal vehicle was a pickup truck that he used on the job site for work-related purposes, which benefitted the employer); see also Byrd v. Stackhouse Sheet Metal Works, 317 S.C. 35, 38, 451 S.E.2d 405, 407 (Ct. App. 1994) (explaining the basis for the exception is that the employer benefits from the transportation). Also, Lopez-Celestin was not on the clock while he was commuting. Cf. Gray, 339 S.C. at 179, 189, 528 S.E.2d at 438, 444 (involving payment for time spent in transport).

Undoubtedly, one could argue that some of the factors used to determine whether a case falls within the travel compensation exception are present here. It appears the per diem and the increased hourly wage defrayed the entire cost of Lopez-Celestin's travel. See Byrd, 317 S.C. at 38, 451 S.E.2d at 407 ("[T]he rule requires the provision of transportation to be . . . 'substantial' for the employee to meet the exception. The travel money paid should defray all or substantially all of the cost of travel." (citing Arthur Larson, 1 The Law of Workmen's Compensation § 16.31 (1993)); Eadie, 322 S.C. at 169, 470 S.E.2d at 400 (finding a deliberate and substantial provision of transportation because the employer paid its employee for providing his own transportation an amount intended to defray all travel costs). On top of that, Lopez-Celestin's supervisor, who drove a company car and had a Reeves Young gas card, did not testify to receiving any additional money besides the per diem. This might suggest that the increased hourly wages paid to employees (like Lopez-Celestin) driving their personal vehicles was deliberate payment for travel. See Byrd, 317 S.C. at 38, 451 S.E.2d at 407 (stating the provision of transportation should be 'deliberate' for the exception to apply); McMillan, 277 S.C. at 555, 290 S.E.2d at 811 (explaining an agreement to pay a sum for transportation can be implied). There does not seem to be any question that Reeves Young meant for the increased payments to induce its employees to work on the Clemson projects. See Byrd, 317 S.C. at 39, 451 S.E.2d at 407 ("A factor supporting compensation is whether a provision of transportation is held out as an inducement to employment." (citing Larson, supra, at p. 4-208.87)).

Nevertheless no one factor controls, McMillan insists that the analysis depends on the facts of each case, and we cannot...