THE STATE OF
In The Court of Appeals
Kenneth Shuler, Husband, Jason Brandon Shuler, Minor Child and William Bryant Shuler, Minor Child, Beneficiaries of Linda Shuler, Deceased Employee, Respondents,
Gregory Electric, Employer and Comptrust AGC of
South Carolina, Appellants.
Alison Renee Lee, Circuit Court Judge
Opinion No. 4039
Heard September 13, 2005 – Filed November 7, 2005
Richard C. Detwiler and Mikell H. Wyman, both of
Columbia, for Appellants.
E. Courtney Gruber and R. Walter Hundley, both of
Charleston, and W. Scott Palmer, of Santee, for Respondents.
HEARN, C.J.: Gregory Electric appeals from an order of the circuit court affirming the single commissioner and full commission’s award of workers’ compensation benefits to the survivors of Linda Shuler, who died on her return home from a doctor’s office where she received treatment for a previous compensable injury. We affirm.
Shuler worked as an electrician’s helper for Gregory Electric (Employer). In August of 2001, Shuler injured her right hand while holding a ladder for a co-worker. It is undisputed that Shuler’s hand injury was work-related, and as a result of the injury, Shuler received treatment from an employer-authorized physical therapist and doctor in
While exiting off of I-77 South onto I-26 East, Shuler drove into the guardrail on the right side of the exit ramp, overcorrected, and crashed headfirst into the guardrail on the left side of the exit ramp. Some time after the accident occurred, Albert Chatfield, III, was driving on the exit ramp and had to swerve into the right lane in order to avoid Shuler’s car, the trunk of which was protruding into the road. Chatfield testified that he was “not very sure” of what time it was when he discovered Shuler’s car, but guessed it was somewhere between 7:30 and 8:00 p.m. Because Shuler’s windows were very tinted and her doors were locked, Chatfield did not realize anyone was in the vehicle, but he called 911 because Shuler’s vehicle posed a hazard for other motorists.
Trooper Brian E. Kyzer from the South Carolina Highway Patrol responded to Chatfield’s call and arrived at the scene at 8:27 p.m. When Trooper Kyzer arrived, he shined a flashlight into Shuler’s car and saw that she was inside, slumped toward the passenger’s seat. He called an ambulance, but Shuler’s injuries were fatal.
The parties dispute Shuler’s activities between the time she left the doctor’s office and the time Shuler’s car was found. Trooper Kyzer testified that he found bags from a grocery store and a dollar store in Shuler’s backseat and that Shuler’s daughter had told him Shuler planned to go shopping after her visit to the doctor. Based on his investigation, Trooper Kyzer surmised that the accident occurred at 8:15 p.m., give or take a few minutes.
The single commissioner awarded benefits to Shuler’s husband and her dependent children, finding the accident arose out of and in the course of her employment. In making this finding, the commissioner noted that Shuler was bound by the terms of the Workers’ Compensation Act at the time of the accident and that she could have lost her right to weekly benefits if she failed to receive the authorized medical treatment as directed. The single commissioner further found that Shuler’s car could have been on the side of the road for some time before it was discovered, that Trooper Kyzer’s estimated time of the accident was not based on any personal knowledge, and that the exact time of Shuler’s accident could never be definitively established. The commissioner took judicial notice of “the fact that 6:30 – 7:30 p.m. is considered by many to be the ‘supper hour,’” and found that even if Shuler stopped at a grocery store after her visit to the doctor’s office, “such a stop would be insubstantial and would be covered under the allowed ‘personal comfort’ deviation.” Finally, the commissioner found that Shuler was being paid mileage by Employer for this trip to her physical therapist and doctor.
Employer appealed to the full commission, which adopted the single commissioner’s order verbatim. Employer then appealed to the circuit court, which also affirmed the award of benefits. The circuit court found that because Employer reimbursed Shuler for mileage while traveling to the doctor’s office, her accident fell within an exception to the general rule that an employee is not covered by workers’ compensation while traveling to and from work. The circuit court also found Shuler was performing a special errand by visiting her physical therapist and doctor, which qualified her trip for another recognized exception to the going and coming rule. While the circuit court disagreed that Shuler’s trip to the store fell within the personal comfort doctrine, it found she was entitled to benefits because at the time of the accident she had resumed her business route. This appeal followed.
STANDARD OF REVIEW
Generally, it is a question of fact whether an injury arose out of and was in the scope of employment. Sharpe v. Case Produce, Inc., 336 S.C. 154, 159, 519 S.E.2d 102, 105 (1999) (citation omitted). Because causation is a question of fact, the full commission’s decision on the issue must be affirmed if it is supported by substantial evidence in the record.
I. Arising Out of and in the Scope of Employment
Employer first argues Shuler’s accident, which occurred on her way home from an unscheduled, unannounced doctor’s appointment, neither arose out of nor was in the scope of her employment as an electrician’s helper. In support of its argument, Employer cites to Douglas v. Spartan Mills, Startex Div., 245 S.C. 265, 140 S.E.2d 173 (1965).
Like the claimant in
Not only is Douglas distinguishable from the case at hand, but so too are all reported South
In Taylor v. Centex Constr. Co., 379 P.2d 217 (Kan. 1963), the Kansas Supreme Court held that an injury sustained by an employee while traveling to medical treatment for a prior compensable injury arose out of and in the course of employment. In
We agree with the reasoning set forth in
Here, Shuler’s fatal accident occurred while she was fulfilling her duty to submit to treatment for a previous compensable injury. Thus, her subsequent injuries arose out of and were in the scope of her employment.
II. “Going and Coming” Rule
Employer next argues the circuit court erred by finding Shuler’s accident fell within an exception to the “going and coming” rule. Under this rule, an employee who is going to or coming from work is generally not considered to be engaged in performing any service growing out of or incidental to employment, and therefore, an injury sustained by accident at such a time does not arise out of and in the course of employment. McDaniel v. Bus Terminal Rest. Mgmt. Corp., 271 S.C. 299, 247 S.E.2d 321 (1978)). As discussed above, we believe Shuler was, at the time of her accident, performing a service that was incidental to her employment in that she was fulfilling her obligation under the Workers’ Compensation Act to submit to treatment. Thus, her injuries were sufficiently related to her employment so as to place the accident outside the parameters of the “going and coming” rule.
III. Intervening Personal Deviations
Finally, Employer argues the award of death benefits should be reversed because of the intervening personal deviations between the time Shuler left the doctor’s office and the time of her accident. We disagree.
The full commission found that even if Shuler stopped by the grocery store after her treatment in order to purchase supper for her family, such a deviation was “insubstantial and would be covered under the allowed ‘personal comfort’ [doctrine].” The circuit court found this ruling was erroneous because the application of the personal comfort doctrine “has consistently been limited to imperative acts such as eating, drinking, smoking, seeking relief from discomfort, preparing to begin or quit work, and resting or sleeping.” Osteen v. Greenville County Schoool District, 333 S.C. 43, 47-48, 508 S.E.2d 21, 23 (1998). However, the circuit court found Shuler’s injuries were compensable even in light of her deviation to the store because at the time of her accident, she had returned to the route of the business trip.
Upon reviewing the record, we note the commission never actually found Shuler had deviated from her route to go shopping. Rather, the commission first found that the time of the accident could never be clearly established and that Shuler may have stopped to eat dinner between 6:30 p.m. and 7:30 p.m. Only after making those findings did the commission go on to find that even if Shuler did stop by the grocery store to buy dinner for her family, such a trip would be encompassed by the personal comfort doctrine.
There is substantial evidence in the record supporting the commission’s findings. See Gibson v. Spartanburg School Dist. No. 3, 338 S.C. 510, 516, 526 S.E.2d 725, 728 (Ct. App. 2000) (“In an appeal from the Commission, this Court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law.”). No one witnessed Shuler’s accident, and as the Good Samaritan who called in the accident testified, numerous cars drove around Shuler’s wrecked vehicle without calling authorities. Thus, her car may have been on the road for a substantial period of time before Trooper Kyzer investigated the scene. Furthermore, although Trooper Kyzer testified that Shuler’s daughter told him her mother planned to stop at the grocery store after her doctor’s visit, when Shuler’s daughter testified, she denied ever saying such a thing. There was no evidence presented regarding how long the shopping bags had been in Shuler’s backseat or whether the bags contained perishable items. Thus, there is substantial evidence to support a finding that Shuler did not deviate from her business trip.
Based on the foregoing, we find Shuler’s death resulted from an accident arising from and in the course of her employment. The going and coming rule does not preclude her from receiving benefits, and there is substantial evidence Shuler did not deviate from her route home. Accordingly, the award of benefits is
STILWELL, J., concurs, and KITTREDGE, J., dissents in a separate opinion.
KITTREDGE, J.: I respectfully dissent, for I believe that Linda Shuler’s November 18, 2001, motor vehicle accident—following the unscheduled doctor’s appointment—did not arise out of and in the course of her employment with Gregory Electric. I would reverse.
Since the essential facts are undisputed, the question before us is one of law. Gibson v.
The disposition of this appeal requires a proper understanding and application of the statutory requirement that an injury, to be compensable, must “aris[e] out of and in the course of the employment.” S.C. Code Ann. § 42-1-160 (Supp. 2004). I find our supreme court’s decision in
There, David Douglas filed a workers’ compensation claim against his employer, Spartan Mills. The Industrial Commission, predecessor to the Workers’ Compensation Commission, scheduled a hearing at the Spartanburg Courthouse on the morning of September 20, 1961.
The Commission found
While the Workmen’s Compensation Act has to be construed liberally in favor of coverage, and doubtful cases should be resolved in favor of the injured employee, we think the accident here clearly did not arise out of and in the course of the employment of the claimant, within the intent of the legislature in enacting the Workmen’s Compensation Act.
The court’s discussion of the separate elements—“arising out of” and “in course of employment”—is helpful in determining the compensability of Shuler’s accident following her visit to the doctor on November 18, 2001. Both elements must be present for an accident to be compensable, and they must be concurrent and simultaneous.
An injury “arises out of” the employment when a causal connection exists 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 nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.
With respect to the requirement that the accident arise “in the course of employment,” the court explained:
An injury arises in the course of employment within the meaning of the Workmen’s Compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties, or engaged in doing something incidental thereto.
Applying these rules of reason to
I think it is at least equally clear that Shuler’s November 18 accident, following her doctor’s visit for a prior work-related injury, lacked the requisite causal connection to her employment and was in no manner incidental to the character of her employment with Gregory Electric. Under
The majority assigns significance to an injured employee’s statutory obligation to pursue required medical treatment as a condition of continued entitlement to workers’ compensation benefits. I do not view this “duty to submit to treatment” as a sufficient nexus to employment to satisfy the “arising out of” and “in course of employment” elements.
An employee does not need a statute to know there is a duty to report to work, for an employee must show up at work to keep her job. Yet we readily acknowledge that under normal circumstances the “going and coming” rule would preclude recovery to an employee injured while traveling to or from work. See McDaniel v. Bus Terminal Rest. Mgmt. Corp., 271 S.C. 299, 302, 247 S.E.2d 321, 322 (1978) (holding that pursuant to the “going and coming” rule, injuries sustained while an employee is going to or coming from work generally are not compensable because the injuries do not arise out of and in the course of employment.) The rationale for the rule is straightforward—traveling risks are those shared by public.
Were Shuler going to or from her job at Gregory Electric, I do not believe we would entertain the notion that an accident was work-related. Application of the “going and coming” rule would foreclose such a claim. Since the court today professes continued adherence to the “going and coming” rule, it seems to me that today’s policy decision—the finding of a compensable, work related injury—would serve to favor those going to or from a doctor’s visit over those employees actually working who must travel to and from work. I do not understand the policy reasons for elevating the rights of those going to and from the doctor’s office over workers traveling to and from work.
I believe that the
If it is the intent of the legislature to include within the terms of the Workmen’s Compensation Act employees injured while engaged in activities not in the course of their employment, though arising indirectly by reason of their employment, then the Act will have to be accordingly amended.
The General Assembly has yet to accept this now 40-year-old invitation to amend the Workers’ Compensation Act to provide for coverage in such circumstances. Nor has our supreme court sought to retreat from its holding in
 Shuler’s daughter testified that she never told Trooper Kyzer her mother planned to go shopping before returning to Orangeburg.
 See, e.g., Wyoming ex rel. Wyo. Workers’ Safety & Comp. Div. v. Bruhn, 951 P.2d 373, 377-78 (Wyo. 1997) (denying benefits to claimant who died while returning from treatment for a compensable injury because “[t]he accident was not a hazard of her employment that she would not have been subjected to apart from her job nor did it result from a risk reasonably incident to the character of the business”); Lee v. Industrial Comm’n, 656 N.E.2d 1084, 1088 (Ill. 1995) (refusing to award benefits for injuries claimant sustained while crossing the street after receiving treatment from an employer-approved medical clinic because the claimant was under no duty or obligation to receive treatment at the time he did); Gayler v. North Am. Van Lines, 566 N.E.2d 84 (Ind. Ct. App. 4 Dist. 1991) (denying compensation for injuries claimant suffered while on her way to pick up a piece of medical equipment that was part of her prescribed treatment for a previous work-related accident; the court found that even though the employer agreed to pay for the medical equipment and had authorized treatment, the intervening negligence of a third party broke the causal link between the claimant and her employment).
 We acknowledge that some states, such as