"Erotic Dancer" Denied WC Benefits by SC Court of Appeals

Lewis v. Boom Boom Room and South Carolina Uninsured Employers' Fund, Opinion 5032 S.C. (2012). The intrepid CEO of WorkersCompensation.com wrote about this incident in early September when a SC appeal court ruled that an exotic dancer should not be provided WC benefits when she was accidently shot while performing at a “gentlemen's club.”

My first observation about the appeal court ruling is Bob Wilson beat me to the punch in writing about it by a month! Everyone who knows Bob understands his burning desire to provide timely commentary on WC issues of the day. I have it on good authority that, at great personal expense, he conducted extensive in-person research before venturing to articulate an opinion on the appeal court decision. From Bob, we'd expect nothing less! Nonetheless, I thought there was room for additional commentary.

On the surface, the fact pattern of this claim would seem to indicate that the erotic dancer, a young woman by the name of LeAndra Lewis, was in the course of her duties at the “Boom Boom Room” (don't you just love that name?) when the accident occurred. Several patrons began having a disagreement, which had nothing to do with the young Ms. Lewis, who was gamely performing her various gyrations on stage. Fisticuffs gave way to more serious methods of waging war, and a gun was produced by one of the brawlers. The weapon went off and our intrepid stripper was wounded in the abdomen by a stray shot. 

The wound was fairly serious. A nephrectomy was required. In addition to losing one of her kidneys, Ms. Lewis may never be able to produce offspring (which brings to mind all sorts of possible comments from which I will refrain recording here).

Not surprisingly, a workers compensation claim was filed. However, it was controverted by the Boom Boom Room, whose management claimed that Ms. Lewis was a subcontractor rather than an actual employee. A lower court ruled in favor of the Boom Boom Room that LeAndrea Lewis was not an employee at the time of the incident. Not surprisingly, Ms. Lewis appealed that decision.

The key to determining the relationship between Ms. Lewis and the Boom Boom Room was to apply the case facts to the South Carolina “Four Prong test.” The Appeal Court did so in order to determine if LeAndra Lewis was in fact an employee of the gentlemen's entertainment establishment, or an independent subcontractor. The four prong test requires that for a worker to be classified as an employee, the employer “must dictate the scope of their duties, furnish equipment, determine the manner in which they are paid, and have the right to terminate their employment.”

Ms Lewis' own testimony indicated that she regularly performed at other venues (she obviously was adept at spreading her “talent” around the area). However, she asserted that Boom Boom Room should be considered her employer because they set the terms of her employment by telling her when to dance, what music to use, how her tips would be divided, as well as when she should perform “VIP” dances and to serve drinks.

Ms. Lewis also claimed that club management provided the equipment she needed to perform by having a stage, “dancing” poles, a VIP area and bar, and disc jockey (sounds like an excellent equipment list for a “man cave”). She also alleged that the club could fine her or refuse to allow her to perform if she violated the club's rules, which included such activities as performing a sex act with a customer (one must assume that this meant while dancing at the club rather than in the privacy of Ms. Lewis' own abode) or getting into a fight.

That seemed to be a fairly strong case of awarding WC benefits to this performer. But the lower court denied the claim, and it has now been affirmed by the higher court's ruling. The Appeals Court was obviously not swayed by the siren call of this erotic dancer. I wanted to go into some detail of the Appeal Court decision that Bob didn't mention in his piece (no, not Ms. Lewis' measurements or the height of her stiletto heels while dancing, which I really thought Bob would have covered).

After carefully reviewing the record, the Court concluded:

1. There was no salary or benefits, and the dancers perform for tips only, which they have to split with the club, which in effect, rents them the stage and venue in which to perform.
   
   
2. An erotic dancer in the Boom Boom Room decides the manner in which she performs her dance to satisfy the club's customers. She is not subject to any limitation or control by the club in that regard.
   
   
3. As to furnishing the equipment Lewis needed, the Court observed that there is no possibility or expectation that the dancer could bring her own stage, dancing poles or VIP areas to the worksite. Therefore, the club only provided her access to a place to perform in which she needed one thing, namely, her physical presence.
   
   
4. As for compensation, the Court concluded the club did not pay the dancers and its only involvement with the customers on behalf of the dancers was to keep a large supply of dollar bills available (I know, shocking). This allowed customers to “make it rain” by throwing money in the air on to the stage after an “enthusiastic performance.” The Court also noted the dancer actually paid the club from the tips she received along with tipping the disc jockey and bartender. In addition, the club's so-called rules were merely a requirement that she “obeyed the law” while performing.

The Appeals Court ruled 8-1 against extending WC benefits to Ms. Lewis, ultimately concluding that while LeAndra was shaking her booty at the Boom Boom Room, she was an independent contractor rather than an employee of that august establishment.

Let this be a warning to all erotic dancers in South Carolina; if you are shot by a stray bullet while performing your stage gyrations, don't expect WC coverage to be extended to you because you are not employees! Now I had better try to find Bob Wilson. I understand he may still be in the Columbia, SC area for independent study of this societal shaking Appeal Court's decision, which he expects to be completed by 2015. 

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About the Author:

John D'Alusio has over 30 years experience in P/C insurance with executive management positions in administration, field operations, and claim technical areas. Mr. D'Alusio has had many articles published in industry periodicals, and is also a contributing author to the LexisNexis published, “Complete Guide to Medicare Secondary Payer Compliance.”  He writes a monthly column for Risk & Insurance Magazine and is a quarterly columnist for AMComp Magazine.

His Risk & Insurance column is located at:
http://www.riskandinsurance.com/workerscomp.jsp

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