Pilgrim v. Eaton and Revis, 2010 S.C. App. LEXIS 259
Statutory Employers and Average Weekly Wage Calculation
Pilgrim began working for Sean Kern on 1/25/05. At the time, Kern had a contract with Billy Eaton to provide carpenters for Eaton’s unincorporated business “Just Garages Plus.” Pilgrim’s first job assignment from Kern was to work on a garage roof that Eaton was building for a customer. On 1/28/05, Pilgrim fell off of the garage roof and was seriously injured.
At one point, Revis was the sole owner of “Just Garages Plus;” however, he contended that he sold the entire business to Eaton in 2002 and thus, was shielded from workers’ compensation liability. The Hearing Commissioner held that at the time of Pilgram’s accident, Eaton and Revis operated the business as a “joint effort;” therefore, both Eaton and Revis were statutory employers. The Hearing Commissioner determined that Pilgrim sustained compensable injuries and awarded Pilgrim TTD benefits. The Hearing Commissioner based Pilgrim’s average weekly wage on the 29.5 hours he had worked at the time of the accident. Pilgrim made $18/hr. The Hearing Commissioner determined Pilgrim’s average weekly wage was $720 ($18 x 40 hours). Revis appealed the Hearing Commissioner’s decision that Revis was a statutory employer and the Hearing Commissioner’s calculation of Pilgrim’s average weekly wage. The Appellate Panel and Circuit Court affirmed.
The Court of Appeals affirmed the Hearing Commissioner’s finding that Revis was a statutory employer. The Court noted that “Just Garages Plus” was performing work that required a license contractor. Eaton was not a licensed contractor; thus, he needed Revis, a licensed contractor, to be able to perform contractor work. The Court specifically noted that Revis was listed as the contractor on the building permit for the job where Pilgrim was injured and that Revis received monthly installments from Eaton. With regards to the average weekly wage issue, the Court reversed and remanded because it found the Commission failed to correctly apply § 42-1-40. The Court noted that the Commission erred because it made no factual findings regarding what section of the statute was appropriate for calculating average weekly wage given Pilgrim’s brief time on the job. The Court also noted that the Commission did not make a finding that the approach it used was ‘practicable’ and that the approach used was ‘fair and just to both parties.’ The Court indicated that 29.5 hours of wage data cannot yield a reasonably accurate calculation of average weekly wage.
