Howard v. Marvin Pittman Erectors

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 Curtis Howard, Claimant, v. Marvin Pittman Erectors, Employer and South Carolina Uninsured Employers’ Fund, Carrier, Defendants, of whom Curtis Howard and Marvin Pittman Erectors are, Respondents, And South Carolina Uninsured Employers’ Fund is the Appellant. Appeal From Pickens County Edward W. Miller, Circuit Court Judge Unpublished Opinion No. 2008-UP-643 ubmitted November 3, 2008 – Filed November 17, 2008 AFFIRMED Robert Merrell Cook, II, of Batesburg-Leesville, for Appellant. Michael S. Swindell, of Greenville; and Marvin Pittman, pro se, of Easley, for Respondents. PER CURIAM: In this workers’ compensation case, South Carolina Uninsured Employers’ Fund appeals the trial court’s ruling that Marvin Pittman Erectors was subject to the South Carolina Workers’ Compensation Act (the Act). We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities: S.C. Code Ann. § 42-1-360(2) (Supp. 2007) (providing an employer that regularly employs fewer than four employees in the same business is exempt from the Act); Hernandez-Zuniga v. Tickle, 374 S.C. 235, 248, 647 S.E.2d 691, 698 (Ct. App. 2007) (contrasting “regular employment” with “casual employment,” and defining “casual employment” as occasional or by chance and not in the usual course of the employer’s trade or business); Id. at 245-46, 647 S.E.2d at 696-97 (quoting 4 Larson, Workers’ Compensation §§ 74.01-02 (addressing the minimum employee requirement and providing the number of employees working at the exact time of injury is immaterial)); Harding v. Plumley, 329 S.C. 580, 584, 496 S.E.2d 29, 31 (Ct. App. 1998) (providing the issue of whether an employer regularly employs the requisite number of employees is jurisdictional; therefore, the appellate court is not bound by the Appellate Panel’s findings of fact and resolves the issue by determining whether the preponderance of evidence supports inclusion under the Act); Grouse v. DRB Baseball Mgmt., Inc., 465 S.E.2d 568, 570 (N.C. App. 1996) (defining “regularly employed” as “employment of the same number of persons throughout the period with some consistency”). AFFIRMED. HEARN, C.J., SHORT and KONDUROS, JJ., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR.