Bennett v. Gary Smith Builders

• Decision Date: 08 June 1978
• Docket Number: No. 20709,20709
• Citation: Bennett v. Gary Smith Builders, 271 S.C. 94, 245 S.E.2d 129 (S.C. 1978)
• Court: South Carolina Supreme Court
• Parties: Belton T. BENNETT, Respondent, v. GARY SMITH BUILDERS and Pennsylvania National Mutual Casualty Company, Appellants.

Page 129

245 S.E.2d 129

271 S.C. 94

Belton T. BENNETT, Respondent, v. GARY SMITH BUILDERS and Pennsylvania National Mutual Casualty Company, Appellants.

No. 20709.

Supreme Court of South Carolina.

June 8, 1978.

Duke K. McCall, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, for appellants.

C. Ben Bowen, of Abrams, Bowen, Robertson & Tapp, Greenville, for respondent.

LITTLEJOHN, Justice:

The circuit court affirmed an award of the South Carolina Industrial Commission in favor of the employee-respondent, Belton T. Bennett. Gary Smith Builders and Pennsylvania National Mutual Casualty Company, employer-appellants, have appealed, alleging error (1) in the method of computing the average weekly wage of Bennett, and (2) in ruling that he was not a casual employee.

Bennett worked as a carpenter for Smith Builders for some 16 to 18 years. He quit his job at age 62, nine years prior to his injury which occurred on May 6, 1975, and began drawing Social Security. From the time of his leaving employment until the time of his injury, Bennett would work each year for Smith Builders until he received the maximum he was permitted to earn without penalty while drawing Social Security payments; then he would quit and not work the rest of the year. His working time amounted to some three or four months, during which time he earned about $2,500.00 per year.

While so working, on May 6, 1975, Bennett suffered a compensable injury entitling him to Workmen's Compensation benefits.

The Industrial Commission has found that the respondent is totally disabled and has made an award just as though he were a full-time employee. The action of the Commission was affirmed by the lower court.

In this appeal the employer submits two questions:

1. Did the South Carolina Industrial Commission incorrectly compute the average weekly wage of the respondent who had voluntarily for eight to nine years, while working with the employer, limited his earnings to the maximum annual income of $2,500.00?

2. Was the respondent a casual employee when his work was for a short period of time and/or a limited purpose so as to make him ineligible for benefits under the South Carolina Workmen's Compensation Act?

We are of the opinion that the second question is without merit.

Having determined that Bennett was not a casual employee, the only issue left for determination is the amount of weekly compensation to which he is entitled. Since the amount of an award is geared to "average weekly wages," the determination of the average weekly wage is of crucial importance.

The statute, § 42-1-40 of the Workmen's Compensation Act, defines the term as follows:

"(1) 'Average weekly wages ' shall mean 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, . . . divided by fifty-two (2) but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.

(3) When the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results fair and just to both parties will be thereby obtained.

(4) Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impracticable to compute the average weekly wages as defined in this section, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character...