Chapter 4 Arising Out of Employment

• Library: The Law of Workers’ Compensation Insurance in South Carolina (SCBar) (2019 Ed.)

Chapter 4 Arising Out of Employment

I. General Meaning and Interpretations of "Arising Out of" Employment

A. General

South Carolina is one of 42 states that require an injury to "arise out of" the employment in order to be compensable. Section 42-1-160 provides that "'injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment."¹ This section "contains a two-pronged test for compensable injuries: the injury must 'arise out of' the employment and simultaneously coexist 'in the course of' the employment."² "It is generally held that the words 'arising out of' refer to the origin or the cause of the accident, while the words 'in the course of employment' refer to the time, place, and circumstances under which the accident occurs."³

Perhaps the most detailed definition of "arising out of the employment was quoted in Douglas v. Spartan Mills, Startex Division as follows:

It [the injury] arises "out of" the employment, when there is apparent to the rational mind up on consideration of all the circumstances, a causal connection 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.⁴

The court in Houston v. Deloach & Deloach used this guideline to determine whether the claimant sustained compensable injuries.⁵ In this case, the claimant suffered injuries when he allowed an unauthorized non-employee drive his employer's fully loaded dump truck, while the claimant rode as passenger.⁶ The commissioner issued an order finding Claimant suffered compensable injuries within the course and scope of his employment.⁷ An appeal was heard by the appellate panel of the Workers' Compensation Commission.⁸ The appellate panel issued a split decision where the majority made the following findings of fact: (1) Claimant did not have authority or permission to allow the unauthorized employee to drive the Employer's loaded dump truck at the time of the accident; (2) that skill and training are required to drive a commercial dump truck filled with asphalt; (3) Claimant did not have permission to drink alcoholic beverages during the time period he was performing job duties; (4) Claimant's act in allowing an unauthorized person to drive his Employer's truck constituted an impermissible deviation from his duties, and therefore, the accident did not arise out of the course and scope of his duties; and (5) Claimant's injuries to his left lower extremity, right arm, and neck did not occur in the course and scope of employment, and he is therefore not entitled to benefits under the Act.⁹ The court affirmed the circuit court's denial of benefits, holding that the claimant deviated from his assigned task by allowing a non-employee to drive the work truck.¹⁰ Accordingly, the claimant's employment did not contribute to his injuries, as his work duties did not involve riding with an untrained non-employee.¹¹

"It has been well stated that the two parts of the phrase 'arising out of and in the course of the employment' are not synonymous, and both must exist simultaneously before any court will allow recovery...."¹² "In order to sustain a workmen's compensation award the injury must result from an accident 'arising out of' and 'in the course of employment.'"¹³ "These conditions must concur before the Act can apply."¹⁴ "The two elements must co-exist. They must be concurrent and simultaneous. One without the other will not sustain an award; yet the two are so entwined that they are usually considered together in the reported cases; and a discussion of one of them involves the other."¹⁵ "While there is agreement as to the proper rule, as usual, the difficulty arises in the application of the rule to the facts of the particular case."¹⁶

The burden of proof is upon the claimant to establish that the accident arose out of the employment.

"Whether an employee's injuries arise out of employment is, in part, a factual issue, but where the facts are virtually undisputed, the issue is primarily one of law."¹⁷

B. Test

Larson indicates that, nationally, five tests for interpreting the "arising out of" language have evolved: (1) the peculiar risk doctrine, which requires the claimant to prove that the source of the accident was peculiar to his particular occupation; (2) the increased-risk doctrine, which requires the claimant to prove that his employment was more likely to bring him into contact with the source of the accident; (3) the actual risk doctrine, which requires the claimant to prove only that some aspect of his employment brought him in contact with the harm; (4) the positional risk doctrine that requires the claimant to prove that his injury would not have occurred but for some aspect of his employment that brought him into contact with the harm; and (5) the proximate cause test, which requires the claimant to establish that the harm was foreseeable as an incident of the employment, and that the chain of causation was not broken by any independent intervening cause, such as an act of God.

Larson indicates that the increased-risk test is the majority rule in the United States. The peculiar risk and proximate cause tests are largely obsolete.

C . Proximate Cause Test

Notwithstanding Larson's observation that the proximate cause test is largely obsolete in the United States, South Carolina courts usually adhere to it in their decisions. As recently as 1986, the court of appeals stated in Nawa v. Wakenhut Corporation that "[t]his court held in Brown v. LaFrance Industries, a claimant must prove an employee's death is proximately caused by an accident arising out of the employment. Thus, South Carolina requires the employee's job be more than one factor, to any extent, in the injury or death."¹⁸ Similarly, in Douglas v. Spartan Mills, the South Carolina Supreme Court stated that the "arise out of requirement 'excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause... .'"¹⁹

South Carolina courts have denied workers' compensation benefits to claimants whose injuries could be attributed to factors other than employment.²⁰ In Hargrove v. Carolina Orthopaedic Surgery Associates, the claimant fell out of a chair at her workplace.²¹ The claimant initially took Vioxx and Bextra to alleviate her soreness from the fall, but she later consulted with a physician when the pain persisted.²² The claimant's MRI revealed "a moderate extruded disc fragment inferior to the L3-4, exerting mass effect upon the right L4 nerve root, a central herniation at L-S1, and a concentric disc bulge from L1 through L3."²³ Despite her injuries, the claimant did not indicate that her problems were work-related even though the form specifically requested this information.²⁴ Further, the claimant initially indicated to her immediate supervisor that her back pain developed from caring for her invalid brother.²⁵ The court affirmed the order of the hearing commissioner denying benefits, holding that the evidence suggested more than one cause for the claimant's injuries.²⁶ Therefore, the court concluded that the claimant's back pain did not arise out of her employment.²¹

Lastly, in Beam v. State Workmen's Compensation Fund that "[a]n accident 'arises out of the employment' when the employment is a contributing proximate cause."²⁸ As stated below, however, courts have used different tests, depending upon the type of accidental injury.

In Sharpe v. Case Produce Company, the court of appeals summarized the various "arising" rules.²⁹ First, an accident "arises out of the employment when the employment is a contributing proximate cause of the accident.³⁰ Second, "arising out of in the Workers' Compensation Act refers to the origin of the accident.³¹ Third, an accident "arises out of employment when it is apparent to the rational mind that based upon consideration of all the circumstances, a causal connection exists between the conditions under which the work is required to be performed and the resulting injury.³² 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.³³ However, 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 employee would have been equally exposed apart from the employment.³⁴ In other words: (a) the causative danger must be peculiar to the work and not common to the neighborhood; (b) it must be incidental to the character of the business and not independent of the relation of master and servant; and (c) 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.³⁵ Fourth and finally, "[t]he question of whether an accident arises out of and is in the course and scope of...