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2007-UP-300 - Stutts v. Harper James Finucan, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Jessie Stutts, Respondent,

v.

Harper James Finucan, Inc., Employer, and Auto Owner’s Insurance Co., Carrier, Appellants.


Appeal From Charleston County
 Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No. 2007-UP-300
Submitted June 1, 2007 – Filed June 8, 2007


REVERSED


Kirsten L. Barr and Roy A. Howell, III, both of Mt. Pleasant, for Appellants.

Cameron Marshall and Paul N. Uricchio, III, both of Charleston, for Respondent.

PER CURIAM:  Harper Finucan, Inc., and Auto Workers Insurance appeal a circuit court order reversing the final decision and order of the Appellate Panel of the Workers’ Compensation Commission.  Appellants argue the circuit court disregarded the proper standard of review by making its own findings of fact and awarding benefits to Jessie Stutts.  We reverse.[1]

FACTS

Stutts began working for Happy Finucan, owner of Harper Finucan, Inc., as a plumber in March 2001.  Stutts was an hourly employee, but was not paid for his travel time to or from work.  Finucan had initially agreed to provide Stutts with a work vehicle, but this never happened.  Instead, Stutts bought a truck himself to travel to and from work.  Stutts had his own insurance policy on his truck, was free to use the truck as he chose, and was responsible for all repairs on his truck.  However, Finucan or his subordinates routinely paid to fill up Stutts’ gas tank, usually once but sometimes twice in a week. 

On the morning of September 12, 2002, Stutts left his truck at Rumph’s Garage for repairs to the brakes. Finucan agreed to pay for these repairs because Stutts could not afford them.  That afternoon after work, Stutts picked up his truck and headed home.  On the way home, Stutts rear-ended a tractor-trailor and sustained injuries. 

After the accident, Stutts filed a claim for workers’ compensation.  The single commissioner determined that Stutts’ injury was compensable under the provision of transportation exception to the “going and coming rule.”  The Appellate Panel reversed, finding Stutts’ accident was unrelated to his employment and his injury did not “occur during the course and scope of his employment.”  Further, the Appellate Panel concluded that the exceptions to the “going and coming rule” did not apply to this case because  Finucan did not provide Stutts’ transportation, did not pay for Stutts’ travel time, and did not charge him with any special errand after work that day. 

Stutts appealed to the circuit court.  The circuit court reversed and reinstated the decision of the single commissioner.  This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the “substantial evidence” standard for judicial review of decisions of the Workers’ Compensation Commission.  Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981).  The findings of the Workers’ Compensation Commission will not be set aside if the findings are supported by substantial evidence and are not controlled by legal error.  Gray v. Club Group, Ltd., 339 S.C. 173, 528 S.E.2d 435 (Ct. App. 2000).  Substantial evidence is evidence that, when viewing the record as a whole, would allow reasonable minds to reach the conclusion the commission reached. Lockridge v. Santens, 344 S.C. 511, 544 S.E.2d 842 (Ct. App. 2001).  The appellate court may not substitute its judgment for that of the commission as to the weight of the evidence on questions of fact.  Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 611 S.E.2d 297 (Ct. App. 2005).

LAW/ANALYSIS

Finucan and Auto Workers appeal the circuit court order awarding benefits to Stutts, arguing the circuit court disregarded the proper standard of review by making its own findings of fact.  We agree. 

Injuries sustained while traveling to and from work are generally not compensable under workers’ compensation law.[2]  Eadie v. H.A. Sack Company, 322 S.C. 164, 168, 470 S.E.2d 397, 399 (Ct. App 1996).  However, South Carolina recognizes five exceptions to this rule: 1) if the employer provides the means of transportation or pays travel time; 2) if the employee performs duties during his commute; 3) if the way used is inherently dangerous; 4) if the place where the injury occurs is in such close proximity to the workplace that it is brought within the scope of employment; and 5) if the injury occurs while the employee is on a special errand for the employer.  Id. 168-69, 400. 

The first exception is the only one at issue here.  The Appellate Panel found this exception did not apply because the “Employer did not provide [Stutts] a means of transportation by providing work tools, paying of one tank of gas each week, and paying for repairs at Rumph’s . . . .  The evidence establishes the [Stutts] was driving his own vehicle.”  However, the circuit court, relying on Eadie v. H.A. Sack Co., found that these facts clearly constituted “provision of transportation” by the employer.  322 S.C. 164, 470 S.E.2d 397 (Ct. App. 1996).  Thus, the circuit court held that Stutts’ trip home qualified as an exception to the “going and coming rule” and thereby brought Stutts within the benefits of the Workers’ Compensation Act.

Whether the circumstances of this case constitute the provision of transportation is a question of fact, subject to the substantial evidence standard of review.  Eadie v. H.A. Sack Co., 322 S.C. 164, 470 S.E.2d 397 (Ct. App. 1996).  Thus, if substantial evidence supports the Appellate Panel’s finding, we must affirm.

In this case, Stutts purchased his own vehicle, paid his own insurance and taxes on the vehicle, and was not paid any wage while traveling to and from work.  Substantial evidence therefore supported the Appellate Panel’s determination that Finucan did not provide transportation to Stutts.

Further, we do not believe Eadie supports reversal of the Appellate Panel’s finding of fact.  In Eadie, the employer admitted his provision of transportation to the employee, stating: “the bottom line is that the reimbursement of Eadie’s mileage in his personal vehicle at a rate of twenty-two cents per mile is the equivalent of providing a company vehicle.”  Eadie, 322 at 170, 470 S.E.2d at 400 (Ct. App. 1996).  The Appellate Panel in Eadie found there was a provision of transportation, and therefore claimant was entitled to benefits.  Thus, consistent with the scope of review, the court of appeals found substantial evidence supported the Appellate Panel’s decision and affirmed the award.

In this case, however, the Appellate Panel found Finucan did not provide transportation to Stutts.  Like in Eadie, there is substantial evidence to support that finding, and the circuit court therefore erred in reversing the Appellate Panel.  Accordingly, the circuit court’s award of benefits is

REVERSED.

HEARN, C.J., and KITTREDGE, J., and CURETON, A.J.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] This is often referred to as the “going and coming rule.”