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2008-UP-208 - Horton v. Pyramid Masonry Contractors

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

Joey D. Horton, Respondent

v.

Pyramid Masonry Contractors, Inc. and Hartford Accident Insurance Company, Appellants.


Appeal From Fairfield County
 Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No.  2008-UP-208
Submitted February 1, 2008 – Filed March 27, 2008


AFFIRMED


Richard B. Kale, Jr. and L. Brenn Watson, both of Greenville, for Appellants.

Barry B. George, of Columbia, for Respondent.

PER CURIAM:  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]

FACTS

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. 

PROCEDURAL HISTORY

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.

STANDARD OF REVIEW

The Administrative Procedures Act governs judicial review of all non-jurisdictional decisions of the workers’ compensation commission.  Gray v. Club Group, Ltd., 339 S.C. 173, 182, 528 S.E.2d 435, 440 (Ct. App. 2000).  “The [reviewing] court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings.”  S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).  However, the reviewing court

may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

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).

LAW/ANALYSIS

I.  Actual or Apparent Authority

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) (“As a general rule, an employee going to or coming from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment, and, therefore, an injury sustained by accident at such time does not arise out of and in the course of his employment.”).   

South Carolina recognizes five exceptions to the going and coming rule: 1) the employer provides the means of transportation or pays travel time; 2) the employee performs duties during his commute; 3) the route used is inherently dangerous; 4) the place where the injury occurs is in such close proximity to the workplace that it is brought within the scope of employment; and 5) the injury occurs while the employee is on a special errand for the employer.  Eadie, 322 S.C. at 168-69, 470 S.E.2d at 400. 

Here, Employee’s injuries are compensable, under an exception to the going and coming rule, only if substantial evidence supports the Panel’s finding that Employer either (1) provided the means of Employee’s transportation, or (2) paid Employee for his travel time to and from work.  Employee’s own testimony confirmed Employer did not pay for his travel time to and from the job site.  Accordingly, Employee’s injuries will be compensable only if substantial evidence supports the Panel’s finding that Employer, through its agent, Foreman, provided the means of Employee’s transportation to work. 

An agency relationship may be established by evidence of actual or apparent authority.  R & G Const., Inc. v. Lowcountry Reg’l Transp. Auth., 343 S.C. 424, 432, 540 S.E.2d 113, 117 (Ct. App. 2000).   In a principal - agent relationship, “apparent authority is considered to be a power which a principal holds his agent out as possessing or permits him to exercise under such circumstances as to preclude a denial of its existence.”  Id. at 433, 540 S.E.2d at 118. 

When a principal, by any such acts or conduct, has knowingly caused or permitted another to appear to be his agent, either generally or for a particular purpose, he will be estopped to deny such agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence dealt with the agent on the faith of such appearances.  The apparent authority of an agent results from conduct or other manifestations of the principal’s consent, whereby third persons are justified in believing the agent is acting within his authority.  Such authority is implied where the principal passively permits the agent to appear to a third person to have the authority to act on his behalf.

Id. at 433-34, 540 S.E.2d at 118 (citations omitted).  “The doctrine of apparent authority provides that a principal may be bound by the acts of its agent when the principal has placed the agent in a position such that third parties are reasonably led to believe the agent has certain authority and they in turn deal with the agent in reliance on this manifestation.”  Eadie, 322 S.C. at 171, 470 S.E.2d at 401.  

In Eadie, H.A. Sack employed Harold Eadie to supervise its construction projects, paid him a mileage allowance to drive his personal vehicle to and from work, and authorized him to hire crew members.  Id. at 167, 470 S.E.2d at 399.  Eadie hired Don Stanley to work with him on a Hilton Head project.  Eadie and Stanley both lived in Hampton and routinely rode to work together.  Later, Eadie hired Phillip Nix, also from Hampton, and offered him rides to Hilton Head with Eadie and Stanley.  Eadie testified he offered transportation to Stanley and Nix as an inducement to accept a job with H.A. Sack.  Id. at 170, 470 S.E.2d at 400.  On their way to work, Eadie, Stanley, and Nix were involved in an automobile accident. 

H.A. Sack argued the Panel erred in finding Stanley’s and Nix’s workers’ compensation claims were compensable under an exception to the going and coming rule.  Id. at 168, 470 S.E.2d at 399.  H.A. Sack conceded it provided transportation for Eadie; however, H.A. Sack alleged Stanley’s and Nix’s injuries were not compensable because “Eadie lacked authority to obligate the company to pay transportation costs for his crew.”  Id. at 170, 470 S.E.2d at 400.  Our court affirmed the Panel, finding Eadie had apparent authority to offer transportation to Stanley and Nix on behalf of H.A. Sack and this authority was binding upon H.A. Sack.  Id. at 171, 470 S.E.2d at 401. 

Here, as in Eadie, Employee testified regarding the circumstances under which he was hired: “[Foreman] c[a]me to the house and asked me if I needed a job, and I told him I didn’t have a way back and forth, and [Foreman] said the company would provide transportation.”  Employee stated Foreman picked him up at home and drove him to and from job sites in Charlotte and Columbia.  Employee testified he only went to work when Foreman went to work and if Foreman had to stay home, Employee stayed home as well.  Employee also testified Foreman showed him a check for $150 that Foreman said Employer was paying him to transport Employee to work in Foreman’s personal vehicle. 

Laura Noah, Employee’s mother, testified to being present when Foreman offered a job to Employee.  She testified she asked Foreman: “[h]ow is [Employee] going to get back and forth to Charlotte and Columbia with no car and no driver’s license?”  She also testified Foreman answered: “Pyramid Masonry was going to furnish transportation for [Employee] back and forth to work.”   

David Mauney, a regional vice president with Employer for twenty-four years, testified Employer does not provide transportation to its employees and that it is the employee’s “responsibility to find [his] own way to work.”  He stated Employer’s job description for a mason specifically states the employee “must have means of transportation to and from project.”  However, Employee testified he had not seen the job description prior to the hearing.  When asked whether Foreman could have told Employee that Employer would provide his transportation to work, Mauney responded: “That would have been outside the scope of his authority.” 

Mauney testified Employer gave each of its foremen a truck allowance of $150 per month for using their personal vehicles “during the course of the workday on the job site, and if they have to go pick up incidentals, such as ice or gasoline or small tools . . . .”  Mauney testified Employer’s written policy for the truck allowance had not changed since 1989.  The policy states: “This pertains only for picking up or delivering incidentals and not to be interpreted as mileage.”[6]  Mauney stated Foreman began receiving the truck allowance on the day he began work; however, the allowance did not change when Foreman began transporting Employee a few weeks later, or several months later, when Foreman hired Clark and began transporting him to the job sites as well.[7]     

It is uncontested that Employer hired Foreman to supervise its construction projects in Charlotte and Columbia.  It is also not disputed that Employer gave Foreman actual authority to hire masons and laborers to work on these projects.  Employer testified it expressly authorized Foreman to offer an hourly wage to the crew members he hired.  Employee testified that only Foreman, on behalf of Employer, discussed the terms of his employment with him.  Employee’s mother testified she was present and heard Foreman tell Employee that Employer would provide transportation to and from the job sites.  Accordingly, we find Employee and his mother could have reasonably believed that Foreman, as Employer’s agent, had the authority to negotiate all of the terms of employment, including Employer’s provision of Employee’s transportation to work.[8] 

Employer argues the facts in Eadie distinguish it from the facts of this case because in Eadie, the employer paid Eadie a mileage allowance for his travel to and from work.  We find this distinction to be unpersuasive.  The Eadie court affirmed that Stanley’s and Nix’s injuries were compensable because substantial evidence in the record supported its finding that H.A. Sack had “placed Eadie in a position impliedly manifesting his authority to dictate the employment terms” to the crew members he hired.  The court’s decision turned on its finding that Eadie acted with actual or apparent authority when he offered crew members transportation to and from work.  That authority bound H.A. Sack to the terms Eadie negotiated with the crew members.

Here, there is evidence to support the Commission’s decision that Employer’s agent, Foreman, acting with actual or apparent authority, told Employee that Employer would provide transportation as a condition of his employment.  While Foreman’s offer of transportation may have exceeded the scope of the actual authority Employer conferred upon him, there is sufficient evidence in the record to support Employee’s belief that Foreman had apparent authority to negotiate the terms of his employment, including Employer’s provision of transportation.  Employer is bound by Foreman’s representations to Employee concerning the conditions of his employment.  Accordingly, the Commission’s decision that Employee’s injuries are compensable because they fall within an established exception to the going and coming rule is supported by substantial evidence and is therefore affirmed. 

II.  Admission By Party Opponent

Employer additionally argues testimony regarding Foreman’s alleged statements to Employee concerning the conditions of his employment offer constituted inadmissible hearsay.  We disagree.

While relied upon by the Panel and the circuit court, the South Carolina Rules of Evidence do not apply in proceedings before the Workers’ Compensation Commission. S.C. Code Ann. § 1-23-330(1) (2005).  We further note that great liberality is exercised in permitting the introduction of evidence in proceedings under the Workers’ Compensation Act.  See Hamilton v. Bob Bennett Ford, 339 S.C. 68, 70, 528 S.E.2d 667, 668 (2000) (citing Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712 (1940)).   Accordingly, hearsay testimony may be admissible if corroborated by facts, circumstances, or other evidence.  Hamilton, 339 S.C. at 70, 528 S.E.2d at 668.  We find sufficient facts and circumstances in the record to support a finding of corroboration.  It is undisputed that Employer and Foreman were in an employer-employee relationship when Foreman offered Employee a job with Employer.  It is also undisputed that Employer had authorized Foreman to hire masons and laborers to work at job sites Foreman supervised.  The record contains not only testimony from Employee about his inability to drive and the circumstances surrounding his offer of employment, but also testimony from Employee’s mother who stated she was present at the time the statements by Employer’s agent were made.[9]

Thus, we find the record contains sufficient evidence from which the Commission and the circuit court properly considered the statements by Employee’s agent.[10]  

CONCLUSION

For the foregoing reasons, the decision of the circuit court is

AFFIRMED.

HEARN, C.J., PIEPER, J., and CURETON, A.J., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Employer testified it provides a monthly truck allowance to each of its foremen.  Employer’s written policy states the truck allowance is for “the intended use of reimbursement for the use of personal vehicles on the job site.  This pertains only for picking up or delivering incidentals and not to be interpreted as mileage.” 

[3] Foreman and Employee lived in Lancaster and had known each other for many years prior to Foreman offering Employee a job with Employer.  Employee testified he had worked for ten to fifteen years with Foreman in Foreman’s father’s construction company.  Later, Foreman started his own business, and Employee worked for him.  Employee did not have a car or a driver’s license the entire time he worked for Foreman’s family.  Consequently, Foreman or Foreman’s father drove Employee to and from the job sites during the ten to fifteen year period that preceded Employer’s hiring of Employee in January 2004.  

[4] Foreman died from the injuries he sustained in the accident. 

[5] Two Panel members voted to affirm the commissioner’s ruling and one member voted to reverse. 

[6] Mauney pointed out that if viewed as a mileage allowance, Employer’s truck allowance of $150 a month would only cover a few days of travel. 

[7] Donald Williams, a foreman with Employer for eighteen years, testified he also received a $150 truck allowance from Employer; however, he had never taken employees to work in his vehicle.  When asked if Employer provides transportation to employees to the job site, Williams responded: “No.”  Williams testified Employer provided the truck allowance “for miscellaneous on-the-job, getting ice or anything pertaining to the job.”  

[8] “If the servant is doing some act in furtherance of the master’s business, he will be regarded as acting within the scope of his employment, although he may exceed his authority.”  Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 116, 341 S.E.2d 385, 388 (Ct. App. 1986).

[9] We accept for purposes of argument by Employer that the statements were hearsay and have considered whether the Panel erred in the admission of this evidence outside of the Rules of Evidence.  If Rule 801(d)(2) is considered only by analogy, we think the evidence would clearly qualify as non-hearsay and would be admissible as an admission by party-opponent.

[10] While asserted before the Commission, neither party addressed S.C. Code Ann. § 19-11-20 (Supp. 2006) [the Dead Man’s Statute] on appeal to this court and that issue is, therefore, deemed abandoned.  Rule 208(b)(1)(B), SCACR;  See Hampton v. Dodson, 240 S.C. 532, 539, 126 S.E.2d 564, 568 (1962) (finding issues were deemed abandoned when party failed to argue the issues in their brief).