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2008-UP-126 - Massey v. Werner Enterprises, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Marsha Elaine Massey, Employee, Respondent,

v.

Werner Enterprises, Inc., Employer, and Liberty Mutual Insurance Corp., Carrier, Appellants.


Appeal From Greenville County

 Doyet A. Early, III, Circuit Court Judge


Unpublished Opinion No. 2008-UP-126

Heard February 5, 2008 – Filed February 20, 2008   


AFFIRMED


Stanley T. Case, of Spartanburg, for Appellants.

Kathryn  Williams, of Greenville, for Respondent.

PER CURIAM: In this workers’ compensation case, Werner Enterprises and Liberty Insurance Corporation appeal a circuit court order affirming the Workers’ Compensation Commission’s award of benefits to Marsha Massey.  We affirm.

FACTS

Marsha Massey and her husband own two transfer trucks.  The Masseys began leasing one of the trucks to Werner Enterprises in 2003.  Werner subsequently hired the Masseys to drive the truck.

On July 4, 2004, Massey sustained injuries when she slipped and fell from her truck while on a route for Werner in Arizona.  Massey subsequently filed a workers’ compensation claim against Werner and its carrier Liberty Insurance Company (collectively Appellants) in South Carolina.  Appellants denied the claim, arguing Massey was an independent contractor and the South Carolina Workers’ Compensation Commission (the commission) lacked jurisdiction.

After a hearing on October 6, 2005, the single commissioner found Massey suffered injuries while hauling goods for Werner.  The single commissioner further found an employer-employee relationship existed between Werner and Massey.  The single commissioner held the commission had jurisdiction because Massey was hired and employed in South Carolina.  The single commissioner awarded Massey temporary total disability benefits and causally related medical expenses. The single commissioner awarded benefits based on an average weekly wage of $667.11. 

Appellants appealed to the appellate panel.  The appellate panel affirmed the single commissioner’s findings.  Appellants then sought judicial review in the circuit court.  The circuit court affirmed the order of the appellate panel on all issues.  Appellants appeal.

LAW / ANALYSIS

1.  Appellants argue the appellate panel erred in concluding Massey was entitled to benefits because an employer-employee relationship did not exist between Werner and Massey.[1]  In support of their assertion, Appellants heavily rely on the owner-operator agreement Massey entered into with Werner, Massey’s declaration of employment status as an independent contractor, and the Nebraska owner-operator workers’ compensation coverage agreement signed by Massey. 

Although the parties’ contract must be considered in determining the nature of their relationship, the description of the relationship set forth in the contract is not dispositive.  Kilgore Group, Inc. v. S.C. Employment Sec. Comm’n., 313 S.C. 65, 68-69, 437 S.E.2d 48, 50 (1993).  Rather, the test to determine whether an employer-employee relationship exists is if the alleged employer has the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment.  S.C. Workers’ Comp, Comm’n v. Ray Covington Realtors, Inc., 318 S.C. 546, 547, 459 S.E.2d 302, 303 (1995).  The following four factors are evaluated to determine the right to control: (1) direct evidence of the right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.  Tharpe v. G.E. Moore Co., 254 S.C. 196, 200, 174 S.E.2d 397, 399 (1970).  Any single factor is sufficient proof of the employment relationship; however, the absence of any one of the factors is at most only mildly persuasive evidence of contractorship.  See Nelson v. Yellow Cab Co., 349 S.C. 589, 594-95, 564 S.E.2d 110, 113 (2002); Wilkinson v. Palmetto State Transp. Co., 371 S.C. 365, 373, 638 S.E.2d 109, 114 (Ct. App. 2006) cert. pending

Here, direct evidence shows Werner had the right to control and direct Massey’s work.  Although Massey owned the tractor, Werner did not allow Massey to drive the truck for personal errands or for any other company.  Moreover, Werner required Massey to affix Werner logos on the truck and install a computer communication device in her truck.  Werner used the device to control Massey’s activities by tracking the location of the truck and instructing Massey regarding the pick-up and delivery of loads.  Werner required Massey to use pre-approved fuel stops and service shops.  This requirement directed Massey’s route as Werner considered Massey off route if she failed to use the pre-approved stops.  Werner further required Massey to use a company credit card for fuel and service charges, and these charges were deducted from Massey’s pay.

Werner also furnished Massey’s equipment.  Werner leased the tractor from Massey, supplied the trailer, and prohibited Massey from driving the truck for any other company.  In addition, Werner provided permits, the logos affixed to the tractor, and the computer communication device.  See Wilkinson, 371 S.C. at 374, 638 S.E.2d at 114 (stating employer supplied equipment where employer provided trailer, logos, and a global positioning system).

Finally, Werner asserted control over Massey’s work by maintaining the authority to terminate Massey at any time.  See Tharpe, 254 S.C. at 201, 174 S.E.2d at 399 (stating the unconditional power to terminate employment is consistent with an employer-employee relationship).  Massey testified both she and Werner could terminate the agreement at any time without penalty.  Massey further testified Werner could terminate the relationship if Massey took off more than four consecutive days.

The foregoing factors all indicate an employer-employee relationship existed between Werner and Massey.  Accordingly, we affirm the circuit court’s determination on this issue.

2.  Appellants next assert Massey is not entitled to benefits in South Carolina because she received coverage under Nebraska law.  This assertion is without merit.  Claimants who accept workers’ compensation benefits in another state are not precluded from seeking additional benefits for which they are authorized to file in South Carolina.  Holman v. Bulldog Trucking Co.  311 S.C. 341, 344, 428 S.E.2d 889, 891 (Ct. App. 1993).  Furthermore, the Nebraska workers’ compensation coverage agreement does not operate to prohibit coverage in South Carolina.  See S.C. Code Ann. § 42-1-610 (2004) (stating no contract shall operate to relieve an employer of any obligation created by the Workers’ Compensation Act); S.C. Code Ann. § 42-1-620 (Supp. 2006) (stating an agreement by an employee to waive his rights under the Workers’ Compensation Act is void).

3.  Appellants argue the appellate panel lacked jurisdiction over Massey’s claim for benefits because Werner hired Massey in Georgia, Werner’s home office is located in Nebraska, and the injury occurred in Arizona.  We disagree.

An injured worker can file a claim under the laws of the state where he is hired, he is injured, or his employment is located.  S.C. Code Ann. § 42-15-10 (Supp. 2006).  Here, South Carolina is the state of hire.  Massey accepted the position by telephone while in her home in South Carolina.  See O’Briant v. Daniel Constr. Co., 279 S.C. 254, 256, 305 S.E.2d 241, 243 (1983) (holding the existence of a contract establishes the employer-employee relationship; where acceptance is given by telephone, the place of contracting is where the acceptor speaks his acceptance).  In addition, Massey’s employment was located in South Carolina.  Massey parked her truck at her home in South Carolina when she was not driving.  See Holman, 311 S.C. at 346, 428 S.E.2d at 892 (stating employment is located in the state of the employee’s base of operations); See also Hill v. Eagle Motor Lines, 373 S.C. 422, 432, 645 S.E.2d 424, 429 (2007) (finding a truck driver’s base of operations was in South Carolina because he received work assignments from his South Carolina home, started his road trips from his home, kept his truck at his home on the weekends, and received his paycheck at home).  Furthermore, Massey testified Werner told her she would be based out of her home because Werner does not have a South Carolina facility. 

4.  Appellants argue the appellate panel erred in determining Massey’s weekly wage and compensation rate.  We find substantial evidence supports the appellate panel’s findings.

A claimant’s average weekly wage is generally calculated by dividing the claimant’s actual earnings in the four quarters prior to the injury by fifty-two weeks.  S.C. Code Ann. § 42-1-40 (Supp. 2006).  Where the claimant worked only a short period of time prior to the injury, the wage can be calculated using the wage of a similarly situated employee.  Id.  Where the wage cannot be calculated using either of the foregoing methods, “such other method . . . may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”  Id.  The purpose of the average weekly wage statute is to “arrive at a fair approximation of the claimant’s probable future earning capacity.”  Sellers v. Pinedale Residential Ctr., 350 S.C. 183, 191, 564 S.E.2d 694, 699 (Ct. App. 2002). 

Here, the appellate panel was not able to compute Massey’s wages using the two methods provided in the Workers’ Compensation Act because Massey worked for a short amount of time prior to her injury, and Werner did not provide the commission with wage information.  Accordingly, the appellate panel did not err in using statistical information for truck drivers in the Greenville area to approximate Massey’s weekly wage and compensation rate. 

AFFIRMED.

HUFF AND PIEPER, JJ. and GOOLSBY, A.J., concur. 


[1]  Appellants also assert the appellate panel erred in finding Werner is Massey’s statutory employer.  We decline to address this issue because we find Werner was Massey’s direct employer.