Bazen v. Badger R. Bazen Co., Inc.

Citations: 693 S.E.2d 436; 388 S.C. 58; 2010 S.C. App. LEXIS 73Docket: 4681

Court: Court of Appeals of South Carolina; May 3, 2010; South Carolina; State Appellate Court

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In the case of Glenn Bazen v. Badger R. Bazen Company, Inc. and Legion Insurance Company, the South Carolina Court of Appeals affirmed the Workers' Compensation Commission's decision to award Glenn Bazen certain benefits following injuries sustained during his employment. The Claimant entered into an oral contract with his father, the employer, for a salary of $30,000 per year, a weekly gas allowance, and free housing. The single commissioner ruled that the housing and storage provided were integral to the employment contract, leading to the determination of an average weekly wage of $853.84, considering the rental value of the house. The commissioner also awarded the Claimant $549.42 per week in temporary total disability benefits and identified underpayment since the date of the accident, resulting in a lump sum payment of $25,616.89 for back benefits. The employer and carrier contested various aspects of the ruling, including the inclusion of housing in wage calculations and the entitlement to maximum compensation rates, but the Appellate Panel upheld the single commissioner's findings, which were subsequently affirmed by the circuit court. The court reviewed the case under the substantial evidence standard, emphasizing the Appellate Panel's role as the ultimate fact finder in workers' compensation matters.

Under the substantial evidence standard, an appellate court cannot replace the Appellate Panel's judgment regarding the weight of evidence on factual questions. The court can only reverse or modify the Panel's decision if the claimant's rights are prejudiced due to a legal error or if the decision is clearly erroneous based on the evidence in the record. Substantial evidence is defined as that which, when considering the entire record, allows reasonable minds to reach the same conclusion as the Appellate Panel.

In the case concerning the value of a house as part of the claimant's average weekly wage, the employer and carrier argued that the circuit court wrongly affirmed the Appellate Panel's inclusion of the home's value, claiming it was merely a gift from the claimant's mother and not part of a wage contract. The claimant countered that the home's value should indeed be included in his wage. The court sided with the claimant, referencing Section 42-1-40 of the South Carolina Code, which allows for the inclusion of allowances as part of average weekly wage calculations if they are specified in the employment contract.

The court found substantial evidence supporting the inclusion of the house's value, relying on consistent testimony from the claimant and his father regarding an oral agreement. Despite the absence of a written contract, the testimony indicated that the claimant's compensation included a yearly salary of $30,000, a weekly tank of gas, and free housing. The father's statements corroborated the claimant's account, confirming that the housing arrangement was a crucial part of the employment agreement and that no rent was charged. Thus, the court affirmed the finding that the claimant's wage contract encompassed these components.

Father testified that Claimant sold his Minnesota home to return to South Carolina, leading Father to provide housing as part of a wage contract rather than as a gift. The court found that the circuit court did not err in affirming the Appellate Panel's decision to award Claimant the fair market value of the housing as part of his average weekly wage. 

Employer and Carrier contended that including the rental value of Claimant's residence, which he continued to occupy rent-free after employment, resulted in a double benefit for Claimant. Claimant argued that the terms of their agreement were factual matters for the Appellate Panel, and that his mother's transfer of property was not compensation from the Employer, thus negating any credit. The court noted that Appellants had not preserved the double recovery argument for review since it was raised only during the appeal, not before the Appellate Panel, and declined to address it on the merits.

Regarding the calculation of Claimant's average weekly wage, Employer and Carrier argued that the circuit court erred in affirming the Appellate Panel's determination of the maximum compensation rate for 2002 and that it miscalculated Claimant's actual earnings. However, the court upheld the Appellate Panel's calculation based on the statutory requirement that average weekly wage is determined by the actual weeks worked. Claimant earned $27,500 in 2001, and the single commissioner correctly divided this by the actual weeks of pay, not the total weeks in the year, as Claimant had taken time off without compensation. Consequently, the court affirmed the circuit court's decision regarding the calculation of Claimant's average weekly wage.

The record contains substantial evidence indicating that Claimant's rent-free living arrangement was included in his oral employment contract. The issue of Claimant's double recovery is not preserved for review. Additionally, there was no error in calculating Claimant's average weekly wage under section 42-1-40 of the South Carolina Code. Consequently, the circuit court's decision is affirmed. Justices Williams and Pieper concur. Notes clarify that at the time of the workers' compensation hearings, Claimant's father was retired, and relevant case law identifies mileage deductions and employer contributions to union funds as fringe benefits, not wages. Appellants argue that Claimant should have received $576.92 per week to properly reflect his loss due to incapacity and seek a credit for the difference from what was awarded. The issue of Claimant's rental income has already been addressed and does not need further discussion.