History of the South Carolina Workers’ Compensation System
Workers’ Compensation laws were first passed in the United States around the beginning of the Twentieth Century (1911). It was not until 1935 that South Carolina created what was then known as the Industrial Commission in response to the enactment of workers’ compensation laws in this state.
The Industrial Commission was charged with providing a low-cost means of handling claims for on-the-job injuries to employees. With industrialization occurring at that time, factories and working environments could be extremely dangerous with very few safety measures in place and no safety training. Workman’s compensation laws, as they were then known, helped to protect the workers and brought about numerous changes in workplace safety.
Under Workers’ Compensation, an injured worker did not have to sue to recover. The recovery process was much quicker than a lawsuit, but the amount received might be lower than could have been received in a civil court action. The trade-off was that employers could not be liable for lawsuits involving the employer’s negligence and the method of handling claims would be streamlined and less expensive:
i.e., if an employer negligently ran over an employee with a forklift or caused an amputation by turning on a conveyor belt, their amount of exposure/liability was reduced under workers’ compensation and the Industrial Commission would handle claims in a manner that was quick, less costly and did not necessarily require attorneys.
Workers’ compensation provides a no-fault means of compensating workers for medical costs and lost wages. By “no-fault” we mean negligence is not a consideration. If an employee trips over his own feet, the employer is still liable.
The Industrial Commission was renamed the Workers’ Compensation Commission in May, 1986. Today’s Commission is made up of seven commissioners who are appointed by the Governor. Each Commissioner serves for a six-year term. Terms are staggered so that several experienced commissioners will always be serving. There is a chairman who is one of the seven commissioners. The chairman is appointed by the Governor to serve a two-year term. A commissioner may serve no more than two consecutive terms as chairman.
The Commissioners rotate between seven administrative districts: District 1 – Greenville; District 2 – Anderson; District 3 – Orangeburg; District 4 –Charleston; District 5 – Florence; District 6 – Spartanburg; and, District 7 – Richland.
The venue for hearings is typically the county where the accident occurred. The commissioner attends hearings and is responsible for determining contested cases, approving settlements, and conducting viewings and informal conferences.
Besides hearing commissioners, there is an entire bureaucracy that accompanies the Workers’ Compensation Commission. The Executive Director is appointed by the seven Commissioners and serves at their leisure. The Executive Director is responsible for the supervision and management of the Commission’s branches:
|Administrative||Coverage and Compliance|
|Information Resource Management||Judicial|
There are also two deputy commissioners who can conduct Viewings and Informal Conferences, other than Clincher approvals.
On average, about 150,000 on-the-job accidents are reported each year in South Carolina. Of that, around 2% go to a contested hearing before a Commissioner. That means that the vast majority are resolved through the employer, its insurance carrier and the employee. When an employee hires an attorney, the value of the claim typically increases significantly. Employer and insurance adjusters are taught that preventing an employee from hiring an attorney is probably their single greatest cost reducer. In some instances, the participation of an attorney for the injured worker can cause the value of the claim to increase ten times (10x) or more.
The Workers’ Compensation Act applies to “all private employments in which
four or more employees are regularly employed in the same business or establishment.” S.C. Code Ann. §42-1-150.
The Workers’ Compensation Act defines a covered employer to include “the State and all political subdivisions thereof, all public and quasi-public corporations therein, and every person carrying on any employment. . .” S.C. Code Ann §42-1-140.
Every covered employer is required to maintain workers’ compensation insurance by statute. Additionally, an exempt employer may voluntarily elect to be covered by obtaining workers’ compensation insurance.
The Act specifically exempts the following employers: 1) Textile Hall Corporation, 2) state and county fair associations, 3) railroads, 4) railway express companies, and 5) any person who has regularly employed in service less that four employees in the state, or had a total annual payroll during the previous calendar year of less than three thousand dollars regardless of the number of persons employed. Agricultural employees and real estate agents are also exempted from coverage.
A sole proprietor or partner must elect to be covered by the Act. A corporate officer must file a Form 5 with the Commission if he/she wishes to be excluded from coverage. Regular employees, i.e. not corporate officers, may not elect to be excluded from coverage. Agreements between an Employer and employee to exclude coverage are void. Charitable Organizations are not exempt from coverage.
The most often debated provision under the coverage statute is whether a particular individual is a covered employee. A full-time employee is covered. A part-time employee is covered. A temporary employee is covered, unless at the time the employee was engaged to perform the work, the temporary agency provided a copy of its proof of insurance coverage to the contracting employer.
Whenever an employee is involved in an accident at work, there is a potential workers’ compensation claim. South Carolina has adopted a liberal definition of “accident.”
In Creech v. The Ducane Co., No. 2435 (S.C. Ct. App. Dec. 20, 1995) (1996 Davis Adv. Sh.#1), the Court reversed the Commission and Circuit Court who had denied the claim because it was not the result of an external event such as a slip, trip, sudden effort, etc.
The Court of Appeals ruled that:
… an ‘injury by accident’ includes not only an injury the means or cause of which is an accident, but also an injury which is itself an accident, that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, without the prior occurrence of any external event of an accidental character.
The claimant had previously suffered a back injury and been compensated. He later re-injured his back, when he bent over to lift an object weighing less than one pound.
Why do I have to go to their doctor?
Your employer has the right, by South Carolina law, to select the doctor that its workers attend for on-the-job accidents. Employers, with the assistance of their insurance companies, typically use conservative doctors that will provide minimal treatment and not write employees out of work. This allows your employer to contain costs.
Employers want workers released to return to work in order to avoid paying weekly checks (temporary benefits). Light duty may be offered when injuries prevent an employee from doing all the physically demanding duties of their regular job. It is important to comply with the company doctors instructions because benefits may be suspended otherwise. If you go to your own doctor, the employer is not obligated to pay for that medical treatment.
We regularly meet with and depose doctors to get to the truth regarding our clients’ injuries. Second opinions, independent medical evaluations (IME), Functional Capacity Evaluations (FCE), and other diagnostic tests may be necessary before a worker is written out of work by the company doctor. Referral to a specialist or surgeon may be necessary.
Employers are allowed to contact your authorized doctors directly, but there are strict guidelines concerning such contact. An injured employee should be given 10 days notice of any communication and has the opportunity to be present and participate, or have their attorney participate, in any meeting between the doctor and employer’s representative. When Employers or insurance adjusters fail to comply with these guidelines, medical records may be objected to and excluded from the evidence at a hearing.
Why was my claim denied?
As noted above, most employers are required by state law to purchase workers’ compensation insurance. An employers’ workers’ compensation insurance premium is based in large part on the number of reported losses that they have. If a claim is successfully denied, then it does not cause an increase in the premium. Also, some employers have deductibles that they must pay before the insurance carrier becomes responsible. When an insurance company evaluates an adjuster, the primary focus is usually…
1) why did they pay a claim, or
2) why did they pay that much.
Insurance companies are not as interested in reviewing denied claims, because those claims did not cost them money.
Many defenses are asserted to workers’ compensation claims. Some of the most common relate to the definitions of an “accident”, an “injury”, and the phrases “arising out of” and “in the course of employment”. Cases are also litigated over factual issues/defenses regarding whether medical treatment is necessary, the severity of injuries, and the amount of disability suffered.
The defenses which are established by the definitions of terms under the Workers’ Compensation Act involve the following:
1. Is an injured person an employee?
2. Did an accident occur at work?
3. Did an injury result from the accident?
4. Was the injured employee “on the job” at the time of the accident?
5. Was the injured employee doing the employer’s business at the time of the accident?
If the insurance adjuster does not believe each one of these questions can be answered affirmatively, then this may be grounds for denial of the claim. Without the assistance of an experienced workers’ compensation attorney, valid claims can go unpaid.
Regulation 67-503 addresses payment of temporary total and temporary partial compensation. Temporary compensation is due on the 8th calendar day of incapacity. If incapacity lasts for more than 14 days, then benefits are due for the first seven.
The company’s insurance adjuster is responsible for filing a partially completed Form 15 when payment of temporary benefits begins (Section I). The Form 15 must be filed with the Claims Department and served on the claimant with the claimant’s first check. If the compensation rate changes, the adjuster must complete and serve a new Form 15. If an ongoing period of temporary partial compensation has a varying rate from week to week, the adjuster shall report the first payment on a Form 15. Any supplemental payments shall be reported on a Form 15-S. The Form 15-S is to be completed and filed with a Form 18, six months after the date benefits begin and each six months thereafter until the file is closed.
Permanent impairment is not the same as permanent disability. Permanent impairment is determined by a doctor after an employee has reached maximum medical improvement. Permanent disability is determined by the Workers’ Compensation Commissioner or by agreement of the parties and takes into consideration permanent impairment as well as other factors. An employee may be Totally and Permanently Disabled or Permanently Partially Disabled.
South Carolina statutes provide for scheduled or Specific Disability and General Disability. Specific disability is calculated based in large part on the impairment rating provided by the doctor, the individual worker’s weekly compensation rate, and the scheduled injury chart included in the Workers’ Compensation Act. Impairment is considered an “objective” finding by the medical provider, although doctors opinions can vary wildly on the amount of impairment. General Disability is considered a more “subjective” factual determination made by the Commission. Impairment may only be a small factor in the determination of General Disability. Age, physical condition, education, training, the nature of the injury, and past work experience are some of the other factors the Commission may take into consideration. The AMA Guides To The Evaluation of Permanent Impairment is a medical text relied upon by the Commission in some, but not all, situations. With the assistance of an experienced workers comp lawyer, it is not unusual for the Commission to award more than the doctor’s impairment rating. For instance, a 60 year old, brick mason with an 15% impairment to the back and 15 pound lifting restriction may be awarded Total and Permanent Disability because of his reduced ability to earn a living. Depending on an injured workers past wages this may amount to an award in excess of $300,000.00.
Calculation of permanent disability for scheduled injuries is done according to a formula set out in the Workers’ Compensation Act. Each body part is assigned a particular number of weeks. To determine permanent partial disability, the employee’s compensation rate is multiplied by the number of weeks for the injured body part set out by the statute, the resulting amount is then multiplied by the percentage of impairment that the doctor has given. For example, an employee has a compensation rate of $200. He has suffered an injury to his back. His doctor has released him to return to work, put him at maximum medical improvement (MMI) and given him a 15% permanent impairment rating to the back. ($200 C/R x 300 weeks (back)) x 15% impairment = $9,000.00. Compare this award to that of the brick mason under the General Disability example above.
Section 42-9-140 outlines the rights of surviving dependents. A surviving spouse is entitled to 100% of the award, if there are no dependent children. If there are dependent children the surviving spouse takes one-half and the remainder is divided equally among the children.
Benefits are awarded as if the Claimant was permanently and totally disabled. Adult beneficiaries may be paid in lump sum. A Conservator must be appointed for child beneficiaries. The Act also provides for funeral expenses of $2,500 in addition to the amount of the award.
It is wonderful achieving justice for our clients. If you have been hurt at work, contact me with any questions you have. You can contact me by calling our injury firm at (843) 800-8663, by using the live chat feature, or by filling out this contact form.
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