Mar 7, 2013 | Uncategorized, Workers' Compensation
In the workers’ compensation appeal, Williams v. Stafford Drywall, the South Carolina Supreme Court addressed questionable evidence of plaintiff’s compensation rate and medical causation testimony. The entire opinion can be downloaded here, Williams v. David Stafford Drywall.
Williams worked for Stafford Drywall as a drywall finisher in the Charleston area. While on the job, she was injured when she fell off a ladder, falling 12-14 feet. In her initial Form 50, she claimed injury to her left ankle bone, pelvis, right foot, left foot, right hip, and left hip. Six months later, she amended the form 50 to claim injury to her left hip, left leg, pelvis, right leg, back, brain, head, and left foot. Eighteen months later, she claimed injury to her left hip, left leg, pelvis, right leg, back, brain, head, left foot, and her bowels and bladder.
The single workers’ compensation commissioner found that she was totally and permanently disabled and awarded her lifetime medical treatment for the injuries to her back, left leg, and pelvis. Williams appealed to the Workers’ Compensation Appellate Panel. The Appellate Panel affirmed the single commissioner’s order in its entirety.
Williams then appealed to the South Carolina Court of Appeals claiming that the Appellate Panel erred in not finding a higher compensation rate, not finding that her neurogenic bladder issue related to her on the job injury, and not finding that she was not partially paraplegic.
The most interesting part of this appeal is the comp rate. Williams like many small construction business employees was not employed every day or every week. Section 42-1-40 of the South Carolina code provides:
[a]verage weekly wage’ must be calculated by taking the total wages paid for the last four quarters . . . divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.
It appears evidence was not presented on how many weeks Williams actually worked. The evidence presented on the compensation rate was limited to the employer’s Form 20 (here’s a blank form 20) and some testimony form both sides. Plaintiff did not submit documentary evidence, e.g. pay stubs, to prove the number of weeks worked. However, there was testimony from both employer and employee that Williams did not work every week.
The statute clearly provides that the usual method for calculating the comp rate is to divide the pay for the year before the injury by the lesser of 52 or the number of weeks worked, but the workers’ compensation commissioner rather than making a best guess as to the number of weeks worked, just divided by 52. While an argument could be made that dividing by 52 would provide the more reasonable approximation of future income earning potential, that was not what was being done explicitly. The Appellate Panel let the decision on how to calculate the comp rate stand without question, and the South Carolina Court of Appeals found substantial evidence to leave it alone.
The Court of Appeals also affirmed the finding that the plaintiff’s neurogenic bladder problems were not medically caused by the accident for the purposes of workers’ compensation. The bladder issue in this case was not raised until over a year after the accident and claim were filed, but there was medical testimony that the bladder condition was caused by the accident. The Court of Appeals recited that the single commissioner and Appellate Panel have discretion in weighing the evidence, and need not abide by expert testimony when there is other competent evidence on point. Potter v. Spartanburg Sch. Dist. 7, 395 S.C. 17, 23, 716 S.E.2d 123, 126 (Ct. App. 2011). This is another example of the wide latitude the Workers’ Compensation Commission has in deciding cases and the relative lack of court oversight.
If you, or someone you know has been involved in an accident on the job, contact the offices of Reeves, Aiken, and Hightower, LLP to have your South Carolina claim evaluated. With over 23 years experiences, Mr. Reeves has been exposed to numerous work-related cases in which Worker’s Compensation was to be applied and is competent to handle your case. Call today at 803-548-4444 or toll free at 877-374-5999
Feb 15, 2013 | Uncategorized, Workers' Compensation
In the opinion for a recent workers’ compensation appeal, Brown v. Peoplease, the South Carolina Court of Appeals gives us an opportunity to review both the lax standard of review that workers’ compensation cases receive upon review to the courts and the informal nature of appeals from the initial single commissioner Workers’ Compensation Commission to the Appellate Panel (of the Workers’ Compensation Commission).
Brown v. Peoplease involved a relatively common incident: a car accident on the job. Peoplease had arranged for Brown to drive a truck for the Bulldog trucking company when Brown’s truck was hit by a passenger car (Note that since this is a workers’ compensation case, Brown’s negligence, if any, is not at issue, as it would be in an ordinary car accident case).
Peoplease’s attorneys did not contest that the injuries suffered in the accident were compensable injuries under the workers’ compensation statute. The issues at the hearing were what Brown’s compensation rate should be and the extent if any of Brown’s permanent disabilities.
Compenstion rate
Compensation rates are usually determined by dividing the total wages paid over the last four quarters by the lesser of 52 or the actual number of weeks worked, except when this method would be unfair. S.C. Code Ann. §42-1-40. Since Brown had only been working for Peoplease for 16 weeks when the accident occurred, this method was inappropriate, and Brown and Peoplease presented evidence and testimony to establish the compensation rate. The testimony of Peoplease’s corporate lawyer, who relied on her review of similar Peoplease employee’s pay rates ($26,000 to $38,500), and Brown, who offered his recollection of what he was offered at the outset of his employment conflicted ($0.50 per mile). Peoplease offered no documentary evidence, and Brown offered only his paystubs, which were of limited use because his pay rate on the stubs was “$1/hour,” far outside of the range that either party was arguing. Given this evidence, the single commissioner, as fact-finder, set the compensation rate at the highest figure cited by Peoplease, below the $0.50 per mile, Brown said he was offered.
Causation of Specific Back Injuries
Employers in workers’ compensation are only liable for injuries caused by accident on the job. Throughout Brown’s case and in doctor’s letters and notes, references were made to his back and neck injuries generally. The only evidence specifying a particular portion of the back was evidence of what surgeries were done, which were on the cervical spine (except for vague reference of lumbar pain at the initial emergency room visit). Brown also claimed injury to his lumbar spine. The single commissioner cited that back injuries are complicated and that medical testimony must be offered to support specific back injuries and disabilities, and thus, he found that, since Brown offered no medical testimony establishing the cause of his lumbar issues was the accident, he was not entitled to lifetime medical expenses for his lumbar issues. Had the doctor been specifically asked separately about the cervical spine and the lumbar spine, the doctor might have said that the lumbar problems were caused by the accident. Since he wasn’t, the single commissioner denied claims based on Brown’s lumbar problems.
Standard of Review in Workers’ Compensation Appeals
As in all South Carolina workers’ compensation appeals to the South Carolina Court of Appeals, the standard of review is that the decision of the Appellate Panel of the Workers’ Compensation Commission will not be reversed unless there is an error of law or the decision is not supported by substantial evidence. S.C. Code Ann. § 1-23-380(5)(e). Substantial evidence means evidence that would allow a reasonable person to reach the same conclusion. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306. Since the evidence does not completely fly in the face of a finding that there was no causation evidence as to lumbar back injuries or the compensation rate determined by the commissioner, the Court of Appeals cannot reverse.
Appellate Panel’s Adoption of Proposed Order Drafted by Respondent Attorneys
Interestingly, Brown claims that the Appellate Panel erred in having the Respondents’ attorneys prepare a proposed order affirming the single commissioner’s decision, subject to specific instructions on what to write and the commissioners’ right to modify anything in it. The Court of Appeals found no issue with this practice and supported the propriety of the Appellate Panel’s decision by citing an opinion where no issue was found with an Appellate Panel adopting a single commissioner’s findings verbatim, Trotter v. Trane Coil Facility, 393 S.C. 637, 644, 714 S.E.2d 289, 292 (2011), and an opinion where a proposed order is merely mentioned, Matute v. Palmetto Health Baptist, 391 S.C. 291, 295, 705 S.E.2d 472, 474 (Ct. App. 2011).
Motion for Remand
Brown also claimed that the South Carolina Court of Appeals erred in denying a motion for leave to submit additional evidence under section 1-23-380(3) of the S.C. Administrative Procedures Act.
Brown had found a card he had been given before applying to work for Bulldog Trucking that offered 50¢ a mile and would have presumably been material evidence in calculating his compensation rate.
However, to be able to prevail on a motion for leave to submit additional evidence, there must be a showing not only of materiality, but also of good reason for failure to produce the evidence at the original hearing. Id. The Court of Appeals found that there was no such good reason, but even had they found that there a reason, the standard of review above would have applied. Thus, to reverse the Appellate Panel, the Court would have had to find an error of law or that the substantial evidence did not support the decision.
To download the entire Brown v. Peoplease SC Court of Appeals opinion, follow this link.
Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This recent SC Court of Appeals case discusses how an injured worker’s “average weekly wage” is calculated. This figure is extremely important as it is the basis for the claimant’s “compensation rate” from which all benefits are ultimately derived. In addition to salary, other forms of compensation can be included to maximize the amount paid. In this case, other compensation included use of a home as well as a gas allowance. In these difficult economic times, every penny counts. But especially in workers’ compensation cases where someone hurt on the job is only given two-thirds of their usual pay, better make sure your attorney knows where to look for every possible “extra compensation” in order to get that figure as high as possible. Once this compensation rate is established, evrery benefit is affected. While receiving medical care, your weekly check will be based on that amount. And once released from care, any disability award will also be calculated based on that figure as a percentage of impairment to whatever part of your body was injured. As you can see, this initial calculation early in the case is crucial. There is simply too much at stake here to risk on an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Glenn Bazen, Respondent,
v.
Badger R. Bazen Company, Inc., Employer and Legion Insurance Company in liquidation through S.C. Property and Casualty Insurance Guaranty Association, Carrier, Appellants.
Appeal From Florence County
Michael G. Nettles, Circuit Court Judge
Opinion No. 4681
Heard November 4, 2009 – Filed May 3, 2010
AFFIRMED
Mark Davis Cauthen, of Columbia, for Appellants.
Steve Wukela, Jr., of Florence, for Respondent.
LOCKEMY, J.: In this workers’ compensation action, Badger R. Bazen Company, Inc. and Legion Insurance Company (Carrier) appeal the circuit court’s decision affirming the decision of the Appellate Panel of the Workers’ Compensation Commission (Appellate Panel) to award Glenn Bazen (Claimant) certain workers’ compensation benefits. We affirm.
FACTS
Badger R. Bazen (Father) owned and operated Badger R. Bazen Company, Inc. (Employer) in 2002.[1] Claimant and Father testified they entered into an oral employment contract. Under the contract, Claimant, who was living in Minnesota at the time, would return to South Carolina and work for Employer in exchange for $30,000 per year, a tank of gas per week, and use of a home owned by his parents as a free living arrangement. After Claimant began working for Employer, he sustained injuries while in the scope and course of his employment on February 15, 2002.
In his order addressing average weekly wages, the single commissioner found Father promised to pay Claimant $30,000 per year, or $2,500 per month, a tank of gas per week, and allow him to use a house and storage building free of charge. Relying on testimony, the single commissioner found Claimant’s use of the home and storage facility to be an integral part of the parties’ employment contract, not a mere fringe benefit as discussed in Anderson v. Baptist Medical Center, 343 S.C. 487, 541 S.E.2d 526 (2001).[2] The single commissioner thereafter determined Claimant’s average weekly wage was $853.84 by concluding the fair rental value of the home was $1,200 per month and his agreed upon wage was $30,000 per year. Additionally, the single commissioner awarded Claimant $549.42 per week in temporary total disability benefits. Finally, the single commissioner determined Claimant was underpaid by $132.73 per week since February 15, 2005, the date of the accident, until October 31, 2005. Therefore, for a total of 193 weeks, the single commissioner ordered Employer to pay Claimant $25,616.89 as a lump sum back-payment for temporary total disability benefits.
Thereafter, Employer and Carrier applied for review of the single commissioner’s findings to the Appellate Panel. Specifically, the parties argued the single commissioner erred in: 1) finding the use of the house, storage building, and land provided by Employer should be included in calculating Claimant’s average weekly wage; 2) ruling it was immaterial that the house and building were not owned by Employer; 3) determining that Claimant was entitled to the maximum compensation rate of $549.42 for 2002; 4) finding Claimant was entitled to back-payments for temporary total disability benefits; and 5) failing to grant Employer credit for overpayment of temporary total disability payments. The Appellate Panel unanimously affirmed all of the single commissioner’s findings of facts and conclusions of law. Thereafter, the circuit court affirmed the Appellate Panel’s order. This appeal followed.
STANDARD OF REVIEW
“The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission.” Forrest v. A.S. Price Mech., 373 S.C. 303, 306, 644 S.E.2d 784, 785 (Ct. App. 2007) (citing Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981)). “In workers’ compensation cases, the [Appellate Panel] is the ultimate fact finder.” Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (citation omitted). This court reviews facts based on the substantial evidence standard. Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 877 (Ct. App. 2006). “Under the substantial evidence standard, the appellate court may not substitute its judgment for that of the [Appellate Panel] as to the weight of the evidence on questions of fact.” Forrest, 373 S.C. at 306, 644 S.E.2d at 785 (citing S.C. Code § 1-23-380(A)(5) (Supp. 2006)). The appellate court may reverse or modify the Appellate Panel’s decision only if the claimant’s substantial rights have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the record. Id. at 306, 644 S.E.2d at 785-86. “Substantial evidence is not a mere scintilla of evidence nor evidence viewed from one side, but such evidence, when the whole record is considered, as would allow reasonable minds to reach the conclusion the [Appellate Panel] reached.” Shealy, 341 S.C. at 455, 535 S.E.2d at 442.
LAW/ANALYSIS
I. Value of House as Part of Wage Contract
Employer and Carrier argue the circuit court erred in affirming the Appellate Panel’s decision to include the value of the use of the house as part of Claimant’s average weekly wage. Specifically, Appellants argue use of the residence was a gratuitous gift from Claimant’s mother, and Claimant failed to present evidence in the record to substantiate that the residence was a specified part of a wage contract. In response, Claimant argues the circuit court correctly included the home’s value as part of his weekly wage. We agree with Claimant.
Section 42-1-40 of the South Carolina Code (Supp. 2009) defines “average weekly wage” as “the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury. . . .” The average weekly wage can include allowances of any character when they are a specified part of his employment contract. See S.C. Code Ann. § 42-1-40 (“Whenever allowances of any character made to an employee in lieu of wages are a specified part of a wage contract they are deemed a part of his earnings.”). Anderson directs: “[B]efore an allowance will be included in the average weekly wage calculation, it must (1) be made in lieu of wages, and (2) be a specified part of a wage contract.” 343 S.C. 487, 495, 541 S.E.2d 526, 530 (2001). Here, we find there is substantial evidence of both.
In this case, Father’s and Claimant’s statements regarding an oral agreement are the sole evidence upon which we can rely to determine the components of their contract. Though there is no written contract, no conflicting testimony exists regarding the contract terms. We believe Father and Claimant presented ample and consistent testimony through depositions and hearings for us to affirm the finding that Claimant’s oral wage contract was $30,000 per year, a tank of gas per week, and his rent-free living arrangement.
Specifically, Claimant testified in his deposition that his employment agreement consisted of “[t]hree things: free house; one tank of gas a week; $30,000 a year.” Additionally, Claimant testified, “[t]he house was part of my agreement with [Father] when I came back to work with him, and I still live there.” Father corroborated Claimant’s testimony through deposition testimony and testimony before the single commissioner.
In his deposition, Father testified that he told Claimant he “would give him [30,000] a year, a house to live in[,] and a tank of gas a week.” Father responded affirmatively when asked if Claimant had a guarantee of $2,500 per month in income “on top of the house and the taxes and the insurance and the gasoline . . . .” Father’s testimony remained consistent from his deposition to his hearing before the single commissioner. There, Father testified “I told him I would give him $2,500 a month, a tank of gas a week, and the house and little shop there.” Father answered affirmatively when asked whether Claimant’s compensation was $30,000 per year or $2,500 per month. Further, he testified: “[Claimant] would not have come home for just 2,500 a month without the house.” When asked whether he ever charged Claimant rent for use of the house, Father responded “No. That was part of the deal for him to come home.” Further, Father testified that Claimant had to sell his home in Minnesota in order to return to South Carolina, so Father felt he should “give him somewhere to stay as far as it was a package deal.”
Because ample evidence in the record indicates Claimant’s living arrangement was not merely a gift but part of his wage contract, we do not believe Appellant’s gratuitous benefit argument has any merit. Therefore, we believe the circuit court did not err in affirming the Appellate Panel’s decision to award Claimant the fair market value of the use of the house as part of Claimant’s average weekly wage. Accordingly, we affirm the circuit court’s decision.
II. Rent Free Living
Employer and Carrier argue the circuit court erred in affirming the Appellate Panel’s decision to include the rental value of Claimant’s residence when he continued to live rent free in the residence after his employment ended, and he never ceased receiving this benefit. Appellants maintain that to include the rental value unquestionably confers a double benefit upon Claimant.[3] In response, Claimant argues the contractual terms between the parties are factual determinations that are left exclusively to the Appellate Panel. Additionally, Claimant maintains his mother’s conveyance of her property to Claimant was not compensation by Employer; therefore, Employer should not be entitled to a credit for the conveyance.
The issue of Claimant’s living situation after the single commissioner’s ruling and any double recovery he may or may not have received is not preserved for our review. Appellants did not raise this issue to the Appellate Panel after the single commissioner’s ruling. In fact, Appellants first raised the double recovery argument to the circuit court on appeal. Therefore this issue is not properly before this court for review. Smith v. NCCI, Inc., 369 S.C. 236, 256, 631 S.E.2d 268, 279 (Ct. App. 2006) (“Only issues raised and ruled upon by the [Appellate Panel] are cognizable on appeal.”); see also Creech v. Ducane Co., 320 S.C. 559, 467 S.E.2d 114 (Ct. App. 1995) (“[O]nly issues within the application for review are preserved for the full commission.”). Additionally, Appellants do not present any supporting case law for their theory. Therefore, we decline to address this issue on the merits.
III. Error in Calculating Claimant’s Average Weekly Wage
Employer and Carrier argue the circuit court erred in affirming the Appellate Panel’s determination that Claimant was entitled to the maximum compensation rate for 2002. Additionally, Appellants maintain the Appellate Panel failed to consider Claimant’s actual earnings as reported for tax purposes and failed to calculate his average weekly wage according to the method required by section 42-1-40 of the South Carolina Code.[4] We disagree.
Section 42-1-40 provides:
“Average weekly wage” must be calculated by taking the total wages paid for the last four quarters immediately preceding the quarter in which the injury occurred as reported on the Employment Security Commission’s Employer Contribution Reports divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less.
(emphasis added). Here, the single commissioner determined Claimant earned $27,500 in 2001, and then divided $27,500 by forty-eight, the actual number of weeks Bazen paid Claimant wages, rather than fifty-two. In 2001, Claimant took a one-month vacation to Israel during which time he did not receive compensation. Therefore, Claimant essentially received $27,500 in actual earnings for 2001 rather than $30,000. Thus, Appellants argue the single commissioner should have divided $27,500, by fifty-two in calculating Claimant’s average weekly wage to reflect the vacation time. However, because the above mentioned statute requires the average weekly wage be based on the “actual number of weeks for which wages were paid,” we find there was no error in the calculation of Claimant’s average weekly wage.
Accordingly, we affirm the circuit court’s decision to affirm the Appellate Panel’s calculation of Claimant’s average weekly wage pursuant to section 42-1-40 of the South Carolina Code.
CONCLUSION
We believe the record contains substantial evidence that Claimant’s rent-free living situation was part of his oral employment contract. Further, we do not believe Claimant’s double recovery issue is preserved for our review. Finally, we do not believe there was any error in the calculation of Claimant’s average weekly wage pursuant to section 42-1-40 of the South Carolina Code. Therefore, the circuit court’s decision is
AFFIRMED.
WILLIAMS and PIEPER, JJ., concur.
[1] At the time of the workers’ compensation hearings, Father was retired.
[2] Anderson cites case law that finds mileage deductions and employer contributions to union trust funds for health and welfare, pensions, and training are fringe benefits rather than “the actual sum paid to the employee as his wages . . . .” 343 S.C. at 496, 541 S.E.2d at 530 (citing Stephen v. Avins Const. Co., 324 S.C. 334, 347, 478 S.E.2d 74, 81 (Ct. App. 1996)).
[3] Specifically, Appellants contend Claimant should have been awarded only $576.92 per week, which would have properly compensated him for the exact loss due to his incapacity to work. Assuming they are correct in their assertion, Appellants argue they should be entitled to a credit of the difference between what was actually awarded and $576.92.
[4] Employer and Carrier also mention the living arrangement issue in this section. We have already affirmed the portions of the order that concern Claimant’s rental income as part of his average weekly wage. Therefore, we do not need to revisit this issue here.
