Horton v. Pyramid Masonry Contractors, Inc.
| Decision Date | 27 March 2008 |
| Docket Number | 2008-UP-208 |
| Parties | Joey D. Horton, Respondent v. Pyramid Masonry Contractors, Inc. and Hartford Accident Insurance Company, Appellants. |
| Court | South Carolina Court of Appeals |
Submitted February 1, 2008
Appeal From Fairfield County Kenneth G. Goode, Circuit Court Judge
Richard B. Kale, Jr. and L. Brenn Watson, both of Greenville for Appellants.
Barry B. George, of Columbia, for Respondent.
Pyramid Masonry Contractors, Inc. and Hartford Accident Insurance Company (collectively, Employer) appeal the circuit court's finding that Joey D. Horton (Employee) is entitled to recover workers' compensation benefits for injuries he sustained during a motor vehicle accident that occurred while he traveled from his home in Lancaster to Employer's job site in Columbia. We affirm. [1]
On January 7, 2004, Employer hired Mark Hinson (Foreman) to supervise masons and laborers on construction sites. Employer paid Foreman $23 per hour for the hours he worked on the job site. Employer also paid Foreman a truck allowance” of $150 per month. [2] Employer authorized Foreman to hire brick masons and laborers to work on the job sites he supervised. A few weeks later, Foreman went to Employee's home and offered him a job with Employer. Employee accepted a mason's job paying $18 per hour. [3]
After Employee started working for Employer, Foreman and Employee always traveled together in Foreman's personal vehicle to and from their homes in Lancaster to job sites in Charlotte and Columbia. Employee testified he worked for Employer only on the days he rode to job sites with Foreman. In November 2004, upon Employee's recommendation, Foreman hired another Lancaster man, James Clark, to work as a laborer for Employer. Clark testified he also worked for Employer only on days he rode to Employer's job sites with Foreman.
On the morning of November 17, 2004, Employee, Clark, and Foreman were traveling in Foreman's vehicle from Lancaster to a job site in Columbia. While driving on Interstate 77 in Fairfield County, Foreman's car slammed into the rear of a vehicle moving approximately twenty-five miles per hour. The impact threw Employee from the car; a helicopter transported him to Richland Memorial Hospital where he recovered until his release on December 10, 2004. [4] As a result of the accident, Employee sustained injuries to his head, back, heart, spleen, pelvis, left leg, left hip appendix, and teeth. Employee now walks with a cane and is under the continuing care of a physician for injuries sustained in the accident, including headaches, seizures, and an inability to control his left foot. Employee has not worked since the accident, and his physician indicates Employee's physical limitations will prevent him from working as a brick mason in the future.
In May 2005, Employee filed a Form 50 claiming entitlement to workers' compensation benefits for injuries he sustained in the November 17, 2004 accident. Employee alleges his injuries are compensable because he was performing services arising out of and in the course of employment at the time of the accident.” Employer filed a Form 51 denying Employee's injuries were compensable.
On September 8, 2005, a single commissioner conducted a hearing. The commissioner found [t]he provision of transportation to and from work was not [E]mployer's normal company policy and testimony from [Employer's] witnesses was that [Foreman] acted outside of general company policy in this regard.” However, the commissioner ultimately determined:
The greater weight of evidence supports that, as a condition of [Employee's] employment, [Foreman] provided transportation to and from work.... [T]hrough course of conduct and other evidence [Foreman] had actual authority to and did[, ] negotiate these transportation terms as a condition of [Employee's] employment binding [Employer] to the terms of the contract with [Employee]. Evidence of this arrangement was proven by [Employee's] testimony that [Foreman] showed him checks from [Employer] for transporting him. I base this finding on the testimony of [Employee], James Clark, and Laura Noah [Employee's mother].
Additionally, the commissioner concluded Employee's injuries were compensable because he had proven an exception to the ‘going and coming rule' discussed in Byrd v. Stackhouse Sheet Metal Works, 317 S.C. 35, 451 S.E.2d 405 (Ct. App. 1994) since his employer provided transportation to and from job sites and said transportation was a condition of [Employee's] employment.” The commissioner ordered Employer to pay Employee temporary total benefits and all of his causally-related medical expenses.
Following a review hearing on June 28, 2006, the Commission's Appellate Panel (Panel) determined the commissioner's findings of fact and rulings of law were correct and incorporated them by reference into the Panel's ruling affirming the commissioner's order in its entirety. [5] The Panel noted as additional reasoning for the Hearing Commissioner's decision” that the Dead Man's Statute did not apply because Employee's witnesses were not testifying against a survivor of the now-deceased Foreman. The Panel also (1) ruled Foreman had either actual authority or apparent authority to both hire [Employee] and provide transportation” and (2) overruled Employer's hearsay objections under Rule 801(d)(2) of the South Carolina Rules of Evidence.
Following a hearing on January 4, 2007, the circuit court, applying the substantial evidence standard of review, found the Panel did not err in finding Employee's case fell within an exception to the going and coming rule because testimony in the record could reasonably be viewed as establishing [Employee] had been hired by a supervisor [Hinson] who was driving the automobile in which [Employee] was injured at the time of the accident when [Foreman] had actual and/or apparent authority to hire [Employee] and negotiate the terms of his employment, including the provision of transportation to and from the job site, especially in light of the fact that [Employee] did not have a driver's license.” Additionally, the circuit court affirmed the Panel's conclusion that testimony regarding Foreman's statements to Employee was properly admitted because the statements were neither hearsay nor barred by the Dead Man's Statute. The circuit court affirmed the Panel's order in its entirety. This appeal followed.
Id. This court will set aside a decision by the workers' compensation commission only where the determination is unsupported by substantial evidence.” Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Substantial evidence is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion reached by the Appellate Panel. Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996). The possibility of drawing two inconsistent conclusions from the evidence does not mean the agency's conclusion is unsupported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981).
Conversely, where the [Panel's] s decision is controlled by an error of law, this court's review is plenary.” Lizee v. S.C. Dep't of Mental Health, 367 S.C. 122, 126, 623 S.E.2d 860, 862 (Ct. App. 2005). An appellate court may reverse the Panel when its decision is affected by an error of law. Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 651 S.E.2d 311 (2007).
Employer argues Employee's injuries are not compensable because Employer did not authorize Foreman to offer Employee transportation to and from work. We disagree.
An employee may recover workers' compensation benefits for injuries sustained by an accident arising out of and in the course of employment.” S.C. Code Ann. § 42-1-160 (Supp. 2006). Generally, injuries an employee sustains while traveling to and from the workplace are not compensable. Eadie v. H.A. Sack Co., 322 S.C. 164, 168, 470 S.E.2d 397, 399 (Ct. App. 1996); see also Gray v. Club Group, Ltd., 339 S.C. 173, 188, 528 S.E.2d 435, 443 (Ct. App. 2000) ().
South Carolina recognizes five exceptions to the going and coming rule: 1) the...
To continue reading
Request your trial