Workers’ Compensation – Course of Employment – ‘Going and Coming’ Rule

Appellant was respondent’s employee for purposes of his assigned work.

We reversed the order of the Appellate Panel, reinstated the order of the single commissioner, and remanded.

Appellant was employed as an industrial painter by Respondent, a specialized staffing company providing skilled labor to a variety of South Carolina clients. Respondent assigned Appellant to work for Phillips Industrial, which had a contract for work at the British Petroleum (BP) plant located on several hundred acres in Berkeley County.  The BP plant processes paraxylene, a liquid byproduct from the refining of gasoline, for plastic, and textile uses.

Appellant argued the Appellate Panel erred in reversing the single commissioner’s ruling that he was Respondent’s statutory employee for purposes of the Workers’ Compensation Act. While we agreed Appellant was not BP’s statutory employee, we found the evidence established he was Respondent’s employee. Respondent, a labor contractor, placed Appellant as an industrial painter at Phillips, which then used him pursuant to its contract with BP to provide work essential to BP’s manufacturing process. BP subcontracted Phillips, to which Respondent had assigned Appellant, to apply a protective coating onto its new cement service ramp used by trucks when unloading the hydrobromic acid used in BP’s processes. Because this was a new ramp, application of this protective coating was not merely routine maintenance. Still, Phillips’ application of the protective coating to the cement service ramp in the instant case is not a part of BP’s core business of reprocessing paraxylene. Even so, we found Appellant’s injuries on BP’s private road as Appellant was going home from work are compensable against—or otherwise imputed to—Respondent. We held that Appellant was Respondent’s employee for purposes of his assigned work at the BP plant.

Appellant next argued the Commission erroneously found his accident did not arise out of and in the course of his employment under the premises rule. In the alternative, Appellant asserted we should find his accident compensable under the fourth exception to the going and coming rule. We agreed the Commission misapplied both the premises and going and coming rules in reversing the single commissioner’s award. The BP plant is not “in practical effect” a part of Respondent’s premises. Still, Appellant argued his accident is compensable under the fourth exception to the going and coming rule because “the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment.” We agreed.

We reversed the Appellate Panel’s findings addressing the premises rule and applicable exception to the going and coming rule. Appellant’s injuries arose out of and in the course of his employment because the injuries occurred on the premises of the BP plant to which he had been assigned, on a road he had been instructed to use to gain access to and exit his work site.

Reversed and remanded.

Cook v. Condustrial Inc. (Lawyers’ Weekly No. 012-062-25, 11 pp.) (Stephanie P. McDonald, J.) Appealed from The Workers’ Compensation Commission. Malcolm M. Crosland, Jr. and J. Kevin Holmes, both of The Steinburg Law Firm, LLP, of Charleston, for Appellant. George D. Gallagher, of Speed, Seta, Martin, Trivett & Stubley, LLC, of Columbia, for Respondents. South Carolina Court of Appeals Unpublished