Bazen v. Badger R. Bazen Co., Inc., 388 S.C. 58; 693 S.E.2d 436
Allowances Included in Average Weekly Wage Calculations
Bazen sustained an admitted injury arising out of and in the course of his employment with Badger R. Bazen Co. (“Badger Co.”) on 2/15/02. The issue was the calculation of Bazen’s average weekly wage. Bazen’s father owned and operated Badger Co. At the hearing, Bazen and his father testified that they entered into an oral employment contract in which Bazen, who was living in Minnesota, would return to South Carolina and work for his father’s company for: $30,000 per year, a tank of gas per week, and the use of a house and storage facility, owned by his parents, as free living arrangements. In calculating average weekly wage, the Hearing Commissioner determined that the use of the house and storage facility was an integral part of the employment contract and not just a fringe benefit. Thus, the Hearing Commissioner determined that Bazen’s average weekly wage included $30,000 per year and the fair rental value of the home and storage facility ($1,200/month). This put Bazen’s average weekly wage at the maximum for 2002.
The Full Commission and Circuit Court affirmed the Hearing Commissioner’s decision and Defendants appealed to the Court of Appeals.
The Court of Appeals affirmed. The Court noted that before an allowance will be included in the average weekly wage calculation, it must (1) be made in lieu of wages, and (2) be a specified part of a wage contract. The Court held that the substantial evidence supported both. The sole evidence regarding the employment agreement was the testimony of Bazen and his father. Both testified that their agreement consisted of three things: $30,000 per year, a tank of gas per week, and a house for Bazen to reside. There was no conflicting testimony. Defendants further argued that the Commission erred in the decision to include the rental value of Bazen’s residence because Bazen continued to live rent free in his residence after his employment ended; thus, Defendants asserted that the Commission conferred a double benefit to Bazen. However, the Court determined that this issue was not properly before the Court because it was not raised and ruled upon by the Full Commission. Therefore, the Court declined to address this issue.
