Exotic Dancers and Workers' Compensation — How Much Does the Dancer Get Paid?

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The extraordinary case of LeAndra Lewis continues. We here at the law offices of David R. Price, Jr., P.A, have written about the case twice now. After our last post regarding the case, it returned to the South Carolina Supreme Court in April 2017 and continues to address interesting legal issues and new law for workers in Greenville and other workers in South Carolina. The previous decisions made new law in South Carolina for who is considered an “employee.”
The issue that was addressed in the most recent opinion:  How much does Ms. Lewis get paid?

Workers’ Compensation SC: Facts Of The Case

Exotic dancer workers' comp claim SCMs. Lewis was an exotic dancer. She actually lives in Charlotte, North Carolina and danced three or four nights a week at Club Nikki’s in Charlotte. But on other nights during the week, Ms. Lewis travelled around the Carolinas to dance in other clubs. On June 23, 2008, she was dancing at the Boom Boom Room Studio 54 on Two Notch Road in Columbia, South Carolina. While she was dancing, an altercation broke out in the club resulting in gunfire and a stray bullet hit Ms. Lewis in the stomach. She suffered serious injuries resulting in the loss of a kidney and damage to her intestines, liver, pancreas and uterus. Extensive scarring from the gunshot wound left her unemployable as an exotic dancer. See Lewis v. LB Dynasty, Inc., 732 SE 2d 662 (Ct. App. 2012).

Workers’ Compensation SC: Entitlement to Workers’ Compensation

Ms. Lewis was hurt on the job and so she applied for workers’ compensation pursuant to the South Carolina Workers’ Compensation Act. The club had no workers’ compensation insurance, so she applied for benefits through the South Carolina Uninsured Employers’ Fund (hereinafter the “Fund”). The Fund denied benefits to Ms. Lewis arguing that she was an independent contractor,  not an employee. Workers’ compensation is available only for employees, not for independent contractors.  The South Carolina Workers’ Compensation Commission (“WC Commission”) agreed that she was not an employee, and the Court of Appeals affirmed.  See Lewis v. LB Dynasty, Inc., supra.
However, the South Carolina Supreme Court reversed, holding that the Boom Boom Room Studio 45 exercised just enough control over the work and the work conditions of Ms. Lewis that she should be deemed an “employee” and not an independent contractor. See Lewis v. LB Dynasty, Inc., 770 SE 2d 393 (S.C. 2015). The case was then remanded to the lower court for a determination of her compensation rate.

Workers’ Compensation SC: Determining Average Weekly Wage Without Documentation

Under the South Carolina Workers’ Compensation Act, a worker injured on the job is entitled to have all medical bills and expenses paid. In addition, if the injury results in a permanent injury, then the Act provides for a weekly benefit compensation payment based on the workers’ average weekly wage — generally two-thirds percent of the injured worker’s average weekly wage. The maximum weekly benefit is about $750 — it changes year to year — and the minimum weekly compensation rate is $75 per week.
Since Ms. Lewis was permanently injured and is now unemployable as an exotic dancer, she is entitled to a weekly benefit reflecting the correct compensation rate. As noted, in the initial proceedings, the WC Commission held that Ms. Lewis was not an “employee” and, thus, was not entitled to any benefits. However, the WC Commission also held that, if she was found to be an “employee,” her benefit was to be $75 per week.
The problem: Ms. Lewis did not file tax returns and did not have any documentary evidence of her weekly wages. As described in the 2012 Court of Appeals decision, Ms. Lewis claimed that:
“[s]he typically earned between $250.00 and $350.00 a night in cash. When the single commissioner asked about her total income dancing “five to six nights a week, fifty weeks,” Lewis responded, ‘the money is actually addictive honestly, so you want to strive to get more, you know, so you work even harder.’ Lewis worked several years in this business before she was shot, and she never filed a tax return.”
For workers’ compensation, your “weekly wages” are generally calculated from your payroll records or tax returns. Failure to have documentation can be a large problem when trying to prove your average weekly wage. But credible, uncontroverted, testimony does provide SOME evidence.

Workers’ Compensation In Greenville, SC: Supreme Court Reverses $75 Weekly Benefit Amount

As noted above, Ms. Lewis’ case returned to the South Carolina Supreme Court in April 2017 – see here.
The court noted that the order from the WC Commission that awarded $75 a week “was devoid of any specific and detailed findings of fact to substantiate the award.” According to the court, this meant that the award was in violation of the Workers’ Compensation Act. See S.C. Code Ann. § 42-9-5 (2015) (“Any award made pursuant to this title must be based upon specific and written detailed findings of fact substantiating the award.”). The court sent the case back to the WC Commission for a new hearing on the amount of benefits.

Greenville SC Workers’ Compensation Lawyer: David R. Price, Jr. P.A.

As Ms. Lewis’ case shows, workers’ compensation can be very complex and can take years of litigation. Ms. Lewis was shot in 2008, and her case still is not resolved. If you have been hurt at work, call the skilled Greenville SC workplace injury lawyers at David R. Price, Jr., P.A. We are ready and able to help you with your workers’ compensation claim. Hopefully, your case will not include two trips to the South Carolina Supreme Court, but if it does  we are dedicated to accomplishing a complete and fair adjudication of your case. Our attorneys know South Carolina workers’ compensation law and they are skilled and proven. Email us or call us at (864) 271-2636 today.

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