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24743 - Eddie Medlin v. Upstate Plaster Service, et al.

Davis Adv. Sh. No. 3
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

Eddie Arthur Medlin, Petitioner

v.

Upstate Plaster Service

and Travelers Insurance

Company, Respondents

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

Appeal From Spartanburg County

Frank P. McGowan, Jr., Judge

Opinion No. 24743

Heard December 2, 1997 - Filed January 12, 1998

REVERSED AND REMANDED

Emmette J. Saleeby, of Spartanburg, for petitioner.
Harold J. Willson, Jr., of Haynsworth, Marion,
McKay & Guerard, of Greenville, for respondents.

TOAL, A.J.: In this workers' compensation action, Eddie Medlin has

petitioned for a writ of certiorari, contesting the Court of Appeals' affirmance

of the denial of compensation for an injury that occurred while Medlin was

en route from a work site. We reverse.

p. 45


MEDLIN v. UPSTATE PLASTER

Factual/Procedural Background

In February 1994, Medlin was employed to install stucco sidings on

buildings. His employer Upstate Plaster Service ("Employer") is solely owned

by Keith Garris. Employer maintains an office and warehouse in Enoree,

Enoree.

Medlin testified that before he had started work with Employer, he had

told Garris that he did not have a driver's license. Garris told Medlin that

if he could make it to Employer's office, Employer would provide

transportation from there. Either Medlin's co-worker Frankie Bailey ("Co-

worker") or Garris himself would then drive Medlin to the work sites. Garris

testified that employees were responsible for getting themselves to work;

however, Medlin could not provide his own transportation, so "We had to

furnish him a ride." Garris stated that one of the men would take Medlin

to the job sites.

On March 25, 1994, Medlin was scheduled to work in Rutherfordton,

North Carolina, which was an hour away from Employer's office. On that

day, Co-worker was having trouble with his vehicle, so Garris lent him his

personal truck so that Co-worker and Medlin could travel to Rutherfordton.

While returning from Rutherfordton in the truck, Co-worker and Medlin were

involved in an automobile accident. Medlin, who was riding as the passenger

in the truck, was injured.

In May 1994, Medlin filed for workers' compensation for the injuries he

sustained as a result of the automobile accident. Employer denied that

Medlin had had an accident arising out of and in the course of his

employment. The matter was heard by a single commissioner who concluded

that Medlin did not sustain an injury arising out of and in the course of his

employment with Employer. The full commission unanimously affirmed the

single commissioner's findings of fact and law. This decision was affirmed

by the circuit court. The matter was appealed again and heard by the Court

of Appeals, which, in an unpublished opinion, affirmed the circuit court.

Medlin v. Upstate Plaster Serv., Op. No. 96-UP-293 (S.C. Ct. App. filed Sept.

12, 1996). Medlin has petitioned for a writ of certiorari, contesting the

decision of the Court of Appeals.

p. 46


MEDLIN v. UPSTATE PLASTER

Law/Analysis

The findings of an administrative agency are presumed correct and will

be set aside only if unsupported by substantial evidence. Kearse v. State

Health & Human Servs. Fin. Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995).

A 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. Grayson v. Carter Rhoad Furniture, 317 S.C. 306, 454

S.E.2d 320 (1995). Substantial evidence is evidence which, considering the

record as a whole, would allow reasonable minds to reach the conclusion that

the administrative agency reached. Gibson v. Florence Country Club, 282

S.C. 384, 318 S.E.2d 365 (1984).

As a general rule, an employee going to or coming from the place where

his work is to be performed is not engaged in performing any service growing

out of and incidental to his employment, and, therefore, an injury sustained

by accident at such time does not arise out of and in the course of his

employment. McDaniel v. Bus Terminal Restaurant Management Corp., 271

S.C. 299, 247 S.E.2d 321 (1978). However, South Carolina has recognized a

number of exceptions to this rule. Among these are:

(1)   Where, in going to and returning from work, the means of
transportation is provided by the employer, or the time that is
consumed is paid for or included in the wages;
(2) Where the employee, on his way to or from his work, is still
charged with some duty or task in connection with his employment;
(3) The way used is inherently dangerous and is either
           (a) the exclusive way of ingress and egress to and
           from his work; or
           (b) constructed and maintained by the employer; or
(4) That such injury incurred by a workman in the course of his travel to his place of work and not on the premises of his employer but in close proximity thereto is not compensable unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment of its use by the servant in going to and coming from his work.

Sola v. Sunny Slope Farms, 244 S.C. 6, 135 S.E.2d 321 (1964). A fifth

p. 47


MEDLIN v. UPSTATE PLASTER

exception allows compensation where an employee sustains an injury while

performing a special task, service, mission, or errand for his employer, even

before or after customary working hours, or on a day on which he does not

ordinarily work. Bickley v. South Carolina Elec. & Gas Co., 259 S.C. 463,

192 S.E.2d 866 (1972).

The first exception to the "going and coming rule" is relevant here:

Where, in going to and returning from work, the means of transportation is

provided by the employer. The Court of Appeals found that there was

substantial evidence to support the findings of the commission that Garris's

decision to supply transportation to Medlin was gratuitous and not out of any

obligation to provide such transportation. We disagree.

The evidence is uncontradicted that Medlin needed transportation to

work sites, and Employer had agreed to provide such transportation. Medlin

testified that before starting work with Employer, he had informed Garris

that he did not have a driver's license. Garris asked if Medlin could get to

the office; Garris could then provide transportation from there. Garris's own

testimony reveals that Employer had agreed to provide transportation. In

response to the question, "But Mr. Medlin did not provide his own

transportation, did he?," Garris responded: "No. We had to furnish him a

ride. One of the men would take him . . . ." This admission by Garris

clearly establishes that the provision of transportation to Medlin was not

simply a gratuitous act by Garris, but was directly related to the work of

Employer. As such, we find that Medlin clearly comes under the first

exception to the "going and coming rule." See Bailey v. Santee River

Hardwood Co., 205 S.C. 433, 32 S.E.2d 365 (1944)(finding it easily inferable

the employees were furnished transportation to work by the company). Thus,

the findings below must be set aside as they are unsupported by substantial

evidence.

CONCLUSION

Based on the foregoing, we REVERSE the holding of the Court of

Appeals and REMAND the matter to the Workers' Compensation Commission

for a determination of Medlin's compensation.

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.

p. 48