DEFINITIONS

Employer

The term "employer" means the State and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment and the legal representative of a deceased person or the receiver or trustee of any person. S.C. Code § 42-1-140. In an action against an employer alleging emotional harm caused by the sexual harassment of a co-employee, the co-employee would not be held to be the alter ego of the company for purposes of the exclusive remedy provision of the Workers' Compensation Act, § 42-1-540, where he was merely the office manager and the employee's supervisor; only the “dominant corporate owners and officers” may be alter egos of the company.  Dickert v. Metropolitan Life Ins. Co. (S.C. 1993) 311 SC 218, 428 SE2d 700, modified on rehearing. What must a proprietor do to make an election? The manner for such election is set forth in § 42-1-130. To make this election, the proprietor must meet the following criteria:
[1] his employees must be eligible for benefits under the Act;
[2] he must be actively engaged in the operation of the business; and
[3] the insurer must be notified of the election to be included.

§ 42-1-130. The election need not be in writing. Carver v. Bill Pridemore & Co., 278 S.C. 235, 294 S.E.2d 419 (1982).

Statutory Employer

The phrase “statutory employer” is not used within the Act. However, court decisions refer to a liable upstream employer as a statutory employer. § 42–1–400 provides: When any person, in this section and §§ 42–1–420 and 42–1–430 referred to as “owner,” undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 42–1–420 to 42–1–450 referred to as “subcontractor”) for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him. The Court must make two determinations in assessing whether owner workers' compensation liability will attach to the upstream employer. First, that employer must be subject to the Act. Second, the injured employee’s work must have constituted part of the upstream employer’s “trade, business, or occupation.”

Initially, the “trade, business, or occupation” analysis focuses on the work the owner has employed the subcontractor to complete. Whatever the parties contract to call their relationship is not controlling in a statutory employment analysis. See § 42–1–610 (1985) (“No contract or agreement, written or implied, and no rule, regulation or other device shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this Title except as otherwise expressly provided in this Title.”); To determine if there is a statutory employment relationship, this Court has established three tests based on § 42–1–400 (1976). Owners are statutory employers for injuries related to activities that:
(1) are an important part of the trade or business of the employer;
(2) are a necessary, essential, and integral part of the business of the employer; or
(3) have been previously performed by employees of the employer.

Glass v. Dow Chemical Co., 325 SC 198, 201, 482 SE2d 49, 50 (1997). Owners are treated as statutory employers in these situations because an owner should not be able to avoid workers' compensation liability by subcontracting out the work of their business. The tests differentiate between work done for an owner where it would be unfair to allow the owner to escape compensation responsibility and work provided to the business that would be outside the policy of the statutory section. Employees who work for the subcontractor but are not employed to do the work that the owner would normally do would not have a statutory employment relationship with the owner.

Employee

The term “employee” means every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, including aliens and also including minors, whether lawfully or unlawfully employed, but excludes a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer. Any sole proprietor or partner of a business whose employees are eligible for benefits under this title may elect to be included as employees under the workers' compensation coverage of the business if they are actively engaged in the operation of the business and if the insurer is notified of their election to be included. § 42-1-130. Where the work being performed by an employee of a subcontractor was part of the trade, business, profession or occupation of owner, it is not necessary to consider whether employee's employment was casual since for an employee to be excluded under the act, his employment must be both casual and not in the trade, business, profession or occupation of his employer.  Carrier v. Westvaco Corp., 1992, 806 F.Supp. 1242, affirmed 46 F.3d 1122. Employment is “casual” when it is irregular, unpredictable, sporadic and brief in nature.  Smith v. Coastal Tire and Auto Service, 263 SC 77, 207 SE2d 810 (S.C. 1974).

Borrowed Employee

Under the borrowed servant doctrine, when a general employer lends an employee to a special employer, that special employer is liable for workers' compensation if:
(1) there is a contract of hire between the employee and the special employer;
(2) the work being done by the employee is essentially that of the special employer; and
(3) the special employer has the right to control the details of the employee's work.

Eaddy v. A.J. Metler Hauling & Rigging Co., 284 S.C. 270, 272, 325 S.E.2d 581, 582-83 (Ct.App.1985).

Independent Contractor

Independent contractors are not included unless they individually elect to come within the Act. An independent contractor (which could be a sole proprietor or a partner of a business) is considered to be the employer, and therefore, not covered by the Act unless he elects to be included under §42-1-130. Carver v. Bill Pridemore & Co., 278 S.C. 235, 294 S.E.2d 419 (1982).

The distinguishing factor between an employee and an independent contractor is the right to control the details of the work. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 676 S.E.2d 700 (2009). There are four factors courts look at when determining the right of control:
1) Direct evidence of the right or exercise of control:
2) furnishing of equipment;
3) right to fire; and
4) method of payment.
The four factors should be evaluated in an evenhanded manner, and all must be considered.

EXCLUSIVE REMEDY

General Rule

§ 42-1-540 provides that the exclusive remedy of an employee against his employer is workers’ compensation. This means that the employee, his personal representative, parents, dependents, or next of kin are prohibited from pursuing any action at common law or otherwise against an employer for injury or death by accident. An action for damages is barred even though the particular element of damages alleged is not compensated under the Act.

“Upstream” Contractors, Subcontractors, and Owners are Immune: If an injured employee whose immediate employer has no workers’ compensation insurance pursues the next “upstream” subcontractor and collects benefits, all other upstream subcontractors, contractors, and owners are immune under the exclusivity doctrine); Brittingham v. Williams Sign Erectors, Inc., 299 S.C. 259, 384 S.E.2d 319 (Ct. App. 1989).

Exceptions

Subcontractors: Subcontractors of the employer or the employees of such subcontractors are not immune under the exclusivity doctrine (§ 42-1-540). Likewise, actions by employees of one subcontractor are not barred against another subcontractor or his employees when both subcontractors are hired by a common contractor (§ 42-1-540). The reason such subcontractors and their employees are not immune from suit is that they have no corresponding exposure under the statutory employer/employee sections of the Act. The Act incorporates the basic tenant that an employer who does not have exposure to pay benefits should not enjoy the Act’s immunity, See Parker v. Williams & Madganik, Inc., 275 S.C. 65, 267 S.E.2d 524 (1980). Should an employee be injured by the negligent act of a subcontractor and the accident arose out of and in the course of employment, the employee would be entitled to workers’ compensation benefits from the immediate employer. The employee could then sue the subcontractor, and the employer would then have a lien against the proceeds of any recovery.

Intentional Torts: An intentional tort is not an “accident” within the Act and an employee’s suit at common law against an employer is not barred by the exclusivity doctrine. McSwain v. Shei, 304 S.C. 25, 402 S.E.2d 890 (1991). Dictum in Shei indicates that an employee may have an election to either file a workers’ compensation claim against the employer or file an action at common law, but cannot do both. The Court said, “we caution the bench and bar, however, that an employee may not recover under workers’ compensation and at common law.” 402 S.E.2d at 893. The same rule applies to assaults by employees. Boulware v. Mills, 294 S.C. 24, 362 S.E.2d 184 (Ct. App. 1987). In Boulware, claimant was assaulted by an employee and received workers’ compensation benefits. He then sued the employer and assailant as “co-employee.” The Court affirmed defendant’s motion to dismiss recognizing the principle that claimant had an option to claim workers’ compensation or sue his employer under common law. The court left open the issue of whether an employee may collect workers’ compensation and then pursue a common law action against a co-employee based upon the co-employee’s intentional tort. In Youmans v. Coastal Petroleum Co., 333 S.C. 195, 508 S.E.2d 43 (Ct. App. 1998) the Court of Appeals reinstated benefits to a claimant who was injured in an altercation with his employer following a racial slur uttered by his employer. In finding the claim compensable, the Court noted that “the willful intent to injure” defense requires proof of a “deliberate or formed intention” and the deciding factor is not necessarily who was the aggressor. “Rather, the defense is available only when the acts of the employee are so serious and aggravated as to evince a willful intent to injure. The defense is not available if the altercation is spontaneous, impulsive, instinctive or otherwise lacking a deliberate or formed intention to do injury.” Youmans, 333 S.C. at 200, 508 S.E.2d at 45.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Jurisdiction: The Commission has jurisdiction only when there is an employee/employer relationship. Tharpe v. G.E. Moore Co., 254 S.C. 196, 174 S.E.2d 397 (1970); Crim v. Decorator’s Supply, 291 S.C. 193, 352 S.E.2d 520 (Ct. App. 1987). All questions raised under the Act shall be determined by the Commission. (§ 42-3-180). See also Cook v. Mack’s Transfer & Storage, 291 S.C. 84, 352 S.E.2d 296 (Ct. App. 1986). The Act is to be given liberal construction with doubts as to jurisdiction to be resolved in favor of inclusion rather than exclusion of employees. See also Allen v. Phinmey Oil Co., 241 S.C. 173, 127 S.E.2d 448 (1962).

South Carolina Code section 42-15-10 authorizes a claimant to file for benefits in South Carolina if this is the state where:
(1) the claimant is hired;
(2) the claimant is injured; or
(3) the employment is located.
Our courts have held that the Act is to be given liberal construction with doubt resolved in favor of inclusion rather than exclusion of employees. O’Briant v. Daniel Construction Company, 279 S.C. 254, 305 S.E.2d 241 (1983).

Extraterritorial Jurisdiction

The South Carolina Commission may exercise jurisdiction over claims occurring outside the confines of the state when the claimant is hired within the state or the employment is located within the state.

State in which claimant was hired: For there to be an employee/employer relationship, it is not necessary that the employee have commenced work but only that there exists a contract of hiring. Givens v. Steel Structures, Inc., 279 S.C. 12, 301 S.E.2d 545 (1983); Simpkins v. Lumberman’s Mutual Casualty Co., 200 S.C. 228, 20 S.E.2d 733 (1942). A contract of hiring occurs where there is a meeting of the minds between the employer and the employee. The state of contracting is the state where the minds meet or the final act occurred which created a binding contract. O’Briant v. Daniel Construction Company, 279 S.C. 254, 305 S.E.2d 241 (1983). In O’Briant, a Georgia employer called the claimant who was in South Carolina and offered him a job. The claimant accepted over the telephone and the Court held that the final act which rendered a binding contract * * * was O’Briant’s verbal acceptance while he was in South Carolina. When claimant was later fatally injured in Georgia, his dependents were allowed to file for benefits in South Carolina.

State where employment is located: South Carolina follows the “base of operation” rule. Oxendine v. Davis, 373 S.C. 438, 646 S.E.2d 143(S.C. 2007). The base of operation means the state in which the employer’s place of business is located and where claimant gets his assignments regardless of where the work is performed. In Oxidine, claimant lived in North Carolina, was hired in North Carolina and was injured framing a house in North Carolina. But the employer was located in Mullins, South Carolina, and claimant went there for assignments and at times to be paid.

Time Limitation

An injured employee must report the occurrence of an accident as soon as possible to the employer. § 42-15-20. If the employee fails to give notice within ninety (90) days of the date of the injury, the employee’s claim is barred unless the injured worker can show both excusable neglect and the employer was not prejudiced by the delay.

Discovery Rule

The Supreme Court has applied the discovery rule to statute of limitations in Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639 (1992). In Mauldin, Claimant injured her knee and reported it to her employer who provided medical treatment. The knee stabilized but periodically got sore, would swell and hurt. Over two years after the accident, claimant’s condition was diagnosed as “torn medial meniscus.” Claimant’s claim was denied by the employer on the theory of statute of limitations. The Court held that the statute of limitations did not begin to run until claimant discovered her compensable injury.

Notice of Injury

An injured employee must report the occurrence of an accident as soon as possible to the employer. § 42-15-20. If the employee fails to give notice within ninety (90) days of the date of the injury, the employee’s claim is barred unless the injured worker can show both excusable neglect and the employer was not prejudiced by the delay.

Occupational Diseases: In occupational disease cases, notice must be given within ninety (90) days from the date the employee becomes disabled and could, through reasonable diligence, discover that his condition is a compensable one. Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct. App. 1985).

Repetitive Trauma: Notice must be given within 90 days of the date the employee discovered or could have discovered his condition is compensable.

No Benefits Until Notice Is Given: The employee is not entitled to physicians’ fees or compensation until notice is given to the employer unless the employer had actual knowledge of the accident or the employee was prevented from giving notice because of physical or mental incapacity or fraud or deceit of some third person. § 42-15-20.

Failure to Give Notice: An employee’s failure to give timely notice will result in denial of the claim unless the employee can show to the satisfaction of the Commission that:
(1)The claimant has a reasonable excuse for not giving timely notice; and
(2) The employer has not been prejudiced by this delay.

Gray v. Laurens Mills, 231 S.C. 488, 99 S.E.2d 36 (1957).

In the event a dispute arises between the parties as to whether the employee gave timely notice or the lack of notice was excusable and non-prejudicial, the Commission must make specific and express findings relative to this issue. See Aristizabel v. I.J. Woodside – Division of Dan Rivers, Inc., 268 S.C. 366, 234 S.E.2d 21 (1977); Dawkins v. Capitol Construction Co., 250 S.C. 406, 158 S.E.2d 651 (1967).

Notice is Procedurally Jurisdictional: The issues of timely notice and reasonable excuse are jurisdictional matters. Harper v. Cline Iron & Metal, 219 S.C. 527, 66 S.E.2d 30 (1951). This means these issues may be considered by the Court of Appeals who can consider all of the evidence and reach its own conclusions in accordance with its view of the preponderance of the evidence. Dawkins v. Capitol Construction Co., 250 S.C. 406, 158 S.E.2d 651, 652; O’Briant v. Daniel Construction Co., 279 S.C. 254, 305 S.E.2d 241 (1983). However, notice is not subject-matter jurisdictional. It is procedural. This means it cannot be raised for the first time on appeal. It must be raised in the Form 51 or the defense will be waived. Saab v. S.C. State University, 567 S.E.2d 231 (2003).

Form of Notice: The employee’s notice to the employer does not need to be in writing. Oral notice is sufficient. Mize v. Sangamo Electric Co., 251 S.C. 250, 161 S.E.2d 846 (1968). An employer’s actual knowledge of an accident is sufficient to satisfy the notice requirement. See e.g., Buggs v. United States Rubber Co., 201 S.C. 281, 22 S.E.2d 881 (1943).

Statute of Limitations

Two Year Limitations: The claim must be filed with the Commission within two years of the date of the injury.

Repetitive Trauma Cases: Two years. § 42-15-40. Statute begins to run when Claimant knew or should have known condition is compensable BUT no more than 7 years after the last date of injurious exposure.

Special Rules for Death Claims

Death must result proximately from an accident within two years of the accident or while total disability still continues and within six years after the accident § 42-9-290

Occupational Disease Death Claims

There is no distinction under the S.C. Workers’ Compensation Act for Occupational Disease claims resulting in the death of the Claimant. The same rules set forth above apply.

Occupational Disease Claims

Section 42-15-40 provides that, for occupational disease claims, the two year statute of limitations does not begin to run until the employee has been diagnosed definitively as having an occupational disease and has been notified of the diagnosis. The Supreme Court has held that a claim for total disability benefits arising from an occupational disease must be filed within two (2) years after the claimant has received notice of a definitive diagnosis of the disease and has become totally disabled. Bailey v. Covil Corp., 291 S.C. 417, 354 S.E.2d 35 (1987); White v. Orr-Lyons Mils, 287 S.C. 174, 336 S.E.2d 467 (1985).

Extension of Limitation Period

Waiver and Estoppel: The statute of limitations is an affirmative defense and is waived if not raised. Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 154 S.E.2d 845 (1967). Similarly, the employer/carrier can be estopped from relying upon this defense under appropriate circumstances. Robertson v. Brissey’s Garage, 270 S.C. 58, 240 S.E.2d 810 (1978); Lovell v. C.A. Timbers, Inc., 263 S.C. 384, 210 S.E.2d 610 (1974). Such cases generally involved conduct on the part of the employer or carrier that mislead the claimant into a false sense of security such that the claim was not filed within the statute of limitations. Such conduct need not be intentional. If the employer simply induced the claimant to believe that the claim is compensable and would be taken care of without filing the claim with the Commission within the period limited, Courts have held that the employer is estopped to assert statute of limitations as a defense. Skipper v. Marlowe Mfg. Co., 242 S.C. 486, 131 S.E.2d 524 (1963).

Tolling the Statute of Limitations: In 1989, the Supreme Court adopted the rule that the statute of limitations is tolled during the period in which an employee is induced by the employer to believe his claim is compensable and will be taken care of without the employee filing a claim. Hopkins v. Floyd’s Wholesale, 295 S.C. 154, 382 S.E.2d 9007 (1989). The statute of limitations is also tolled by filing a claim. (See § A, 3 above).

COMPENSABILITY

General Rule

The South Carolina Workers’ Compensation Act provides compensation for injuries by accident occurring in the course and scope of employment; as well as compensation for cumulative trauma injuries, occupational diseases, aggravations of pre-existing injuries, aggravations of pre-existing diseases, as well as psychiatric or psychological claims including stress claims, and hear attacks, if they arise out of unusual and extraordinary conditions of employment. The term “arising out of” in the Workers' Compensation Act refers to the origin of the cause of the accident, while the term “in the course of” refers to the time, place, and circumstances under which the accident occurred. Owings v. Anderson County Sheriff's Department, 315 S.C. 297, 433 S.E.2d 869 (1993). “An injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal relationship between the conditions under which the work is to be performed and the resulting injury.” Id. If the injury can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. Holley v. Owens Corning Fiberglas Corp., 301 S.C. 519, 392 S.E.2d 804 (Ct.App.1990), aff'd. 302 S.C. 518, 397 S.E.2d 377 (1990). “By accident” means unexpectedness as to cause or result. The focus is not on some specific event, the injury itself can be an accident. Stokes v. First National Bank, 306 S.C. 46, 410 S.E.2d 248 (1991).

“Injury”Defined

“Injury” and “personal injury” mean only injury by accident arising out of and in the course employment. § 42-1-160. Injury means personal injury or injury to the person. Injury to property is not covered. Likewise, injury to a proprietary interest such as reputation is not included. Therefore, the exclusivity doctrine does not extend to suits for slander and libel. Dockins v. Ingles Markets, Inc., 306 S.C. 287, 411 S.E.2d 437 (1991).

Types of Injuries

Accident Not Required

In determining whether something constitutes an “injury by accident” the focus is not on some specific event, but rather on the injury itself. The word “accident” means an unlooked for and untoward event which is not expected or designed by the person who suffers the injury. No slip, fall or other fortuitous event or accident in the cause of the injury is required; the unexpected result or industrial injury is itself considered the compensable accident. Creech v. Ducane Co., 320 S.C. 559, 563, 467 S.E.2d 114, 116 (S.C. Ct. App. 1995).

Infectious Diseases

Infectious diseases are compensable pursuant to the following rule: “An external infection, which has been distinctly traced to a definite point of contact, such as a scratch or abrasion, and to a definite time, being of an unusual nature and generally happening suddenly or unexpectedly, is generally held to constitute an accident, or an injury by accident, within the meaning of the act.” Alewine v. Tobin Quarries, Inc., 206 S.C. 103, 33 S.E.2d 81 (1944).

Heart

Heart attacks and strokes are compensable in limited circumstances. The Employee must show employment conditions were extraordinary and unusual, and causation by medical evidence to a reasonable degree of medical certainty. A heart attack is not compensable if arises out of events incidental to normal employment relations. § 42-1-160.

Psychological Injury

Psychological Injuries are compensable under the South Carolina Workers Compensation Act when the psychological injury is caused by a physical injury, or, under certain circumstances, in the absence of physical injury.

Mental/Mental

Stress, mental injuries, and mental illness arising out of and in the course of employment unaccompanied by physical injury and resulting in mental illness or injury are not considered a personal injury unless the employee establishes, by a preponderance of the evidence:
(1) that the employee's employment conditions causing the stress, mental injury, or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and
(2) the medical causation between the stress, mental injury, or mental illness, and the stressful employment conditions by medical evidence. § 42-1-160.

Stress and mental injuries arising out of and in the course of employment unaccompanied by physical injury are not considered compensable if they result from any event or series of events which are incidental to normal employer/employee relations including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations, except when these actions are taken in an extraordinary and unusual manner.

Stress, mental injuries, and mental illness alleged to have been aggravated by a work-related physical injury may not be found compensable unless the aggravation is:
(1) admitted by the employer/carrier;
(2) noted in a medical record of an authorized physician that, in the physician's opinion, the condition is at least in part causally-related or connected to the injury or accident, whether or not the physician refers the employee for treatment of the condition;
(3) found to be causally-related or connected to the accident or injury after evaluation by an authorized psychologist or psychiatrist; or
(4) noted in a medical record or report of the employee's physician as causally-related or connected to the injury or accident. § 42-1-160

Physical/Mental

Psychological injuries, or psychological overlay, caused by a physical injury, is compensable.

Occupational Diseases

Elements of an occupational disease
a.       A disease;
b.       The disease must arise out of and in the course of employment;
c.       The disease must be due to hazards in excess of those hazards that are ordinarily incident to employment;
d.       The disease must be peculiar to the occupation in which the claimant was engaged;
e.       The hazard causing the disease must be one recognized as peculiar to a particular trade, process, occupation, or employment; and
f.       The disease must directly result from the claimant’s continuous exposure to the normal working conditions of the particular trade, process, occupation, employment. § 42-11-10; Muir v. C.R. Bard, Inc., 336 S.C. 266, 519 S.E.2d 583 (Ct. App. 1999).
g.       Employee must show the disease resulted directly and naturally from exposure in this state to the hazards peculiar to the particular employment by the greater weight of the evidence.

EXCLUSIONS AND DEFENSES

Course of Employment

An accident arises out of employment when the employment is a contributing proximate cause of the accident. Simmons v. City of Charleston, 349 S.C. 64, 72, 562 S.E.2d 476, 480 (Ct.App.2002). It must be apparent to the rational mind, considering all the circumstances, that a causal relationship exists between the conditions under which the work is performed and the resulting injury. Smith v. NCCI, Inc., 369 S.C. 236, 253, 631 S.E.2d 268, 277 (Ct.App.2006). If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. Gray v. Club Group, Ltd., 339 S.C. 173, 187, 528 S.E.2d 435, 442 (Ct.App.2000). The injury must be fairly traced to the employment as a contributing proximate cause and cannot be the result of conditions to which the worker would be equally exposed outside of the employment. Id.

The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Hall v. Desert Aire, Inc., 376 S.C. 338, 350-51, 656 S.E.2d 753, 759 (Ct. App. 2007).

Engaged in the Furtherance of Employer’s Business

As a general rule, the employee must be fulfilling his job duties or engaged in something incidental to those duties. If the injury is otherwise compensable, it does not matter whether it take place on or off the employer’s premises.

Not in Furtherance of Employer’s Business

Injuries that occur when an employee is performing a personal act are generally not found to be compensable, unless the employee can show an employment connection. The personal comfort doctrine provides that certain acts, although not strictly in the course of business, are incidental to employment. Those acts include, but are not limited to: eating, drinking, smoking, seeking warmth, shelter, or medication.

Traveling Employees

Our Supreme Court adopted the position taken in Larson's treatise on Workmen's Compensation Law, s 25.21, where it is generally observed that accidents arising while an employee is eating or traveling to and from an eating establishment while out-of-town are acts within the course and scope of employment. These acts, though strictly personal, are incidental to the work and should be anticipated by the employer. A review of the cases cited by Larson establish that generally the trip to and from an eating establishment, as well as the taking of meals themselves, while on out-of-town business are within the course and scope of employment unless the circumstances attending the taking of the meal constitutes a deviation. Merritt v. Smith, 269 S.C. 301, 307, 237 S.E.2d 366, 369 (1977).

An employee may, through his own actions, deviate from his employment to an extent to take the employee outside the course and scope of his employment. Boykin v. Prioleau, 255 S.C. 437, 179 S.E.2d 599 (1971) (employee took other employees on an extensive joy ride instead of taking them home). See also White v. South Carolina State Highway Department, 226 S.C. 380, 85 S.E.2d 290 (1955) (employee deviated from his route twelve miles to pick up family).

Commuting

The general rule is that an employee traveling to and from work is not covered by the Act. Sola v. Sunny Slope Farm, 244 S.C. 6, 135 S.E.2d 321 (S.C. 1972). There are at least 5 exceptions.

1. Special errand rule. The injury is sustained by an employee while performing a special task, service, mission or errand for his employer even if it does not occur during normal hours or on a work day. Bickley v. South Carolina Electric & Gas Co., 259 S.C. 463, 192 S.E.2d 866 (1972).

2. Means of transportation. Where the means of transportation is provided by the employer, or the time is paid for or included in wages, an accident occurring going to and from work is compensable.

3. Charge with a duty or task. If on his way to or from work, the employee is charged with some duty or task in connection with his employment, an accident is compensable. Travel to and from medical visits authorized under workers’ compensation is incidental to employment. Shuler v. Gregory Electric, 366 S.C. 435, 622 S.E.2d 569 (Ct. App. 2007); however, the mere fact that a claimant is, while going to work, also carrying some of the paraphernalia of the employment does not, in itself, convert the trip into a part of the employment. Whitworth v. Window World, Inc., 377 S.C. 637, 661 S.E.2d 333 (2008) citing Larson’s Workers’ Compensation Law §16.09[4][a] (2007).

4. The way used is inherently dangerous. If the way is inherently dangerous and is either the exclusive way in and out of work, or was constructed and maintained by the employer, an accident is compensable.

5. Way used is required by employment contract. If traveling a particular way to work is as an expressed or implied requirement in the employment contract and an accident results, the going and coming rule does not apply.

No Fixed Place of Work Exception

Apply the going and coming rule, along with applicable exceptions. There is no other rule.

Transportation Included in Employment Exception

Where the means of transportation is provided by the employer, or the time is paid for or included in wages, an accident occurring going to and from work is compensable.

Special Missions, Assignments, or Circumstances Exception

The injury is sustained by an employee while performing a special task, service, mission or errand for his employer even if it does not occur during normal hours or on a work day.

Premises and Parking Lot Cases

The courts differentiate between travel to and from work with injuries occurring in the parking lot. “[E]mployment includes not only the actual doing of work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee is injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it happened while the employee was engaged in his work at the place of its performance.” Williams v. South Carolina State Hospital, 245 S.C. 377,140 S.E.2d 601 (1965).

Related to Employment

Refers to time, place and circumstance. Did the accident happen at a time, in a place, and under circumstances that bring it within the employment? Where a claimant was traveling from a medical visit necessitated by her previous compensable injury, the injury was related to her employment. Shuler v. Gregory Elec., 366 S.C. 435, 441, 622 S.E.2d 569, 572 (S.C. Ct. App. 2005).

Intentionally Self-Inflicted Injury or Death

Compensation is not payable to an employee who willfully intends to injure or kill himself or another. (§ 42-9-60). As used in this section, “willful intention” means a deliberate or formed intent. Zeigler v. South Carolina Law Enforcement Div., 250 S.C. 326, 157 S.E.2d 598 (1967).

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

No compensation is payable if the injury or death was occasioned by intoxication of the employee. (§ 42-9-60). However, for intoxication to be a bar to recovery, employer must show it was the proximate cause of the injury. Kinsey v. Champion American Service Center, 268 S.C. 177, 232 S.E.2d 720 (1977). As a practical matter, this is often very difficult to prove.

Employee’s Violation of Positive Orders of Employer

An employee is not automatically considered outside of the course of his employment if he violates an order from his employer; not every violation of an order given to a workman will necessarily remove him from the protection of the Workmen's Compensation Act. However, certain rules concern the conduct of the workman within the sphere of his employment, while others limit the sphere itself. A transgression of the former class leaves the scope of his employment unchanged, and will not prevent the recovery of compensation, while a transgression of the latter sort carries the workman outside of the sphere of his employment and compensation will be denied. Thus, where an empmloyee had been sintructed not to approach or attempt to apprehend shoplifters, but died of a heart attack while chasing a shopfilter, his death was not compensable. Wright v. Bi-Lo, Inc., 314 S.C. 152, 155, 442 S.E.2d 186, 188 (Ct. App. 1994)

Personal Animosity

If a third-party or co-employee injures a claimant for purely personal reasons with no causal relationship to the employment, the resulting injuries are not compensable under the Act. (See above "Intentionally Self-Inflicted Injury or Death")

Hostile Attacks

Horseplay: South Carolina has followed the rule that the innocent victim of horseplay in the work place is entitled to workers’ compensation benefits. Allstep v. Daniel Construction Co., 216 S.C. 268, 57 S.E.2d 427 (1950). But our Supreme Court has indicated that the instigator of horseplay who is injured thereby would not be entitled to benefits. Jones v. Hampton Pontiac, 304 S.C. 440, 405 S.E2d 395 (1991).

Assaults: Assaults can be both compensable under the Act and give rise to a common law cause of action, and therefore, should be considered as a dual claim. For an assault to be compensable, it must arise out of and in the course of employment. If there is no causal relationship between the assault and the employment, the injury is not compensable under the Act. Bright v. Orr-Lyons Mill, 285 S.C. 58, 328 S.E.2d 68 (1985); Bridges v. Elite, Inc., 212 S.C. 514, 48 S.E.2d 497 (1948). It has been held that assaults arising out of purely personal transactions are not compensable.

Examples of Assault Cases: In Baggott v. Southern Music, Inc., 330 S.C.1, 496 S.E.2d 852 (1998), the Supreme Court reversed the denial of benefits to an employee who was assaulted by a co-employee while shooting pool at a gaming establishment. Baggott went to the pool hall to repair a jukebox. After completing the repairs he ordered a beer and began shooting pool. A co-worker entered the bar and an altercation ensued over Claimant mistakenly turning on the alarm at the business. The Commission denied the claim finding that Claimant’s injuries were sustained after he completed his work. In awarding benefits, the Supreme Court noted that Claimant’s injuries occurred in the course of his employment because when his co-worker entered the pool hall and confronted Claimant about a work-related matter, Claimant was “compelled to resume his work duties…” Baggott, 496 S.E.2d at 854.

Retirement

General Rule

Retirement is not a defense to permanent disability in South Carolina; however, a Claimant’s voluntary decision to retire for reasons unrelated to a claim may assist in mitigating exposure for permanent disability at a hearing.

Proof of Voluntary Retirement

Evidence of voluntary retirement may include Claimant’s own testimony, written statements, conversations with other employees, acceptance of SS retirement benefits or statements made to experts.

BENEFITS

Calculation of Average Weekly Wage

The goal is to compute the average weekly wage (AWW) that will most nearly approximate the amount the claimant would be earning were it not for the injury. Use claimant’s reported gross earnings for the previous four completed quarters divided by 52; or if less than four quarters, use claimant’s reported gross income divided by number of weeks worked; or if claimant is a recent hire, use the reported gross income of a similar employee; or if none of these methods result in a fair AWW, use an alternate method and provide documentation as to how AWW was calculated. The AWW was must be fair to both claimant and employer. S.C. Code Ann. § 42-1-40; see Pilgrim v. Eaton, 391 S.C. 38, 703 S.E.2d 241 (Ct. App. 2010). Fringe benefits such as medical, disability and life insurance payments could not be included when calculating AWW, where they were not in lieu of wages or a specified part of a wage contract. Anderson v. Baptist Medical Center, 343 S.C. 487, 541 S.E.2d 526 (2001). If claimant was working for more than one employer at the time of work injury, additional gross wages are generally included in AWW. (Reg. 67-1603(H)

Compensation rate is then calculated by multiplying the AWW by 0.6667. The Commission sets a maximum compensation rate, adjusted each year based on the average weekly wage earned in the state.

The Employer must complete Form 20, Statement of Earnings of Injured Employee, and serve claimant (or his attorney) within thirty (30) days after temporary disability (total or partial) benefits begin. (Reg. 67-1603(c)(1)). If no temporary benefits are being paid, employer must also prepare, file and serve Form 20 with a request for informal conference or hearing, or within thirty (30) days of claimant’s request for hearing or informal conference. Failure to file and serve Form 20 may result in a fine by a hearing commissioner.

Total Disability

Generally, total disability is limited to 500 weeks. Total disability in compensation law is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.

South Carolina provides three methods to obtain disability compensation:
(1) total disability under § 42–9–10;
(2) partial disability/wage loss under § 42–9–20;3 and
(3) scheduled disability under. § 42–9–30.

The first two methods are premised on the economic model, in most instances, while the third method conclusively relies upon the medical model with its presumption of lost earning capacity.

First, a claimant may be presumptively totally disabled. As such, a claimant must show a physical injury enumerated in § 42–9–10. The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes, or any two thereof, constitutes total and permanent disability to be compensated according to the provisions of this section.

Second, a claimant may establish total disability under § 42–9–10 by showing an injury, which is not a § 42–9–30 scheduled injury, caused sufficient loss of earning capacity to render him totally disabled. An example of such a claim occurred in Coleman v. Quality Concrete Prod.'s, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965), where a claimant experienced a double hernia after being injured while at work. The claimant established the double hernia, coupled with a lack of education or adequate job training, made him unable to find comparable, stable employment.

Third, a claimant may establish total disability through multiple physical injuries. Under this scenario a claimant who has a § 42–9–30 scheduled injury must show an additional injury, and then prove a loss of earning capacity.

If the commission deems a claimant permanently and totally disabled (PTD), he is entitled to compensation for 500 weeks plus lifetime medical treatment related to the injury. However, TTD plus TPD plus PTD cannot exceed 500 weeks. [CAVEAT: If disability results from permanent brain damage, paraplegia, or quadriplegia, claimant is entitled to lifetime benefits without regard to the 500 week limitation.]

Partial Disability

Any disability less than total disability is partial disability. Where an employee is not at MMI, but is working and is earning less than his AWW, he can receive temporary partial disability.

Once an employee has received MMI, and has some permanent disability, but is not entitled to an award of permanent total disability, he is entitled to an award of permanent partial disability. A claimant with one scheduled injury is limited to the recovery under § 42–9–30. If the injury effects more than one body part, a claimant can also prove a partial wage loss claim. A claimant can receive up to 340 weeks of partial wage loss under § 42-9-20.

Impairment Rating

Impairment ratings are generally assigned by physicians in accordance with the AMA Guides to Evaluation of Permanent Impairment. Impairment rating(s) are considered one component of a determination of permanent disability, either total or partial, in a scheduled member or a loss of earning capacity claim. Commissioners are not bound by any impairment rating in awarding permanent disability benefits, nor is there a set multiplier.

Vocational Rehabilitation

There is no requirement in the South Carolina Workers’ Compensation Act that an injured worker be provided vocational rehabilitation.

Return to Work with Loss of Earnings

See Partial Disability – Permanent, above.

Earning Power Assessment

Typically prepared by a vocational expert to establish total or partial wage losse. Can be used by injured workers to establish loss of earning capacity in pursuit of permanent partial disability benefits under §42-9-20 after injury to or effect upon more than one body part. Should an earning power assessment indicate an injured worker has no residual earning power, that evidence can be used to establish a permanent and total disability claim.

Employer Job Offer

An employer is not required to create a job in order to return an injured employee to work. However, returning injured workers to employment both during pendency and continuing after resolution of claim can greatly benefit employers/carriers in reducing temporary and permanent disability benefit exposure. If an employer has light duty work that can accommodate an injured worker’s physical restrictions, either temporarily, permanently or both, they are encouraged to issue an offer in writing specifically describing the position, pay, and work schedule for the job being offered. Failure of an employee to accept similar employment offered by the employer before reaching MMI can result in the suspension of temporary benefits.

Vocational Expert

Used often by both parties in cases where an injured worker’s future (residual) earning capacity is at issue. See See Total Disability,Partial Disability, Return to Work with Loss of Earnings & Earning Power Assessment above.

Amputation or Loss of Use

Generally governed by S.C. Code Ann. §42-9-30 and Reg. 67-1101 in a permanent partial disability determination. Subject to certain presumptions of permanent partial disability as described for specific body parts listed in the scheduled member statute and/or regulation cited above.

Disfigurement/Scarring

Benefits payable for “serious permanent disfigurement of the face, head, neck, or other area normally exposed in employment, not to exceed fifty weeks [at claimant’s compensation rate].” Where compensation is paid for any injury under the permanent disability provisions of the Act, no disfigurement compensation shall be paid for that injury(ies), unless there are, “serious burn scars or keloid scars on the body resulting from [those] injuries. . . .” S.C. Code Ann. § 42-9-30(23)

Loss of Sight

Compensation awarded pursuant to Reg. 67-1105, based on loss of vision without the use of corrective lenses. Percentage of impairment to vision is determined using a Snelling Notation chart contained in the text of that regulation.

Loss of Hearing

The method for determining hearing impairment is based on the American Academy of Otolaryngology “Guide for Evaluation of Hearing Handicap”, which is based upon the American Medical Association's “Guides to the Evaluation of Permanent Impairment”. The calculation of a hearing handicap is derived from the pure tone audiogram, obtained with an audiometer calibrated to ANSI S3.6-1969 standards and as follows:
(1) The average of the hearing threshold levels at 500 Hz, 1000Hz, 2000Hz, and 3000Hz are calculated for each ear.
(2) The percent impairment for each ear is calculated by multiplying by 1.5% the amount that the above average hearing threshold level exceeds 25dB (low fence) up to a maximum of 100%, which is reached at 92dB (high fence).
(3) The hearing handicap, a binaural assessment, is calculated by multiplying the smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear), and dividing the total by six. S.C. Code Ann. Regs. 67-1102.

Penalties

Interest

Interest accrues on the unpaid portion of an award at the statutory rate during pendency of an appeal.

Costs

Costs can be awarded to either party in a Commissioner’s discretion for any motion filed to compel performance under an Order of the Commission and/or payment of any benefits due under the Act. Hearing costs may be assessed against any party if a Commissioner determines the hearing “has been brought, prosecuted, or defended on unreasonable grounds. Reg. 67-614

Counsel Fees

Attorney’s fees can be awarded to either party in a Commissioner’s discretion for any motion filed to compel performance under an Order of the Commission and/or payment of any benefits due under the Act.

Death Benefits

Death benefits are capped at 500 weeks less any TTD and TPD paid. S.C. Code Ann. §42-9-290. Where there are wholly dependent person(s), funeral expenses are paid up to but not exceeding $2,500, in addition to the 500 week death benefit. S.C. Code Ann. §42-9-290.

Widow/Widower

Persons who were wholly dependent on the deceased take to the exclusion of all others. § 4 2-9-290. Wholly dependent persons include the deceased’s spouse, minor children, and any other person who can prove whole dependency. If there is more than one wholly dependent person, the death benefit is divided equally among them unless the wholly dependent persons are the spouse and more than one minor child. In such case, the spouse receives half of the death benefit and the other half is divided among the minor children. § 42-9-130 and §42-9-290.

Death Benefits/Children

Children through the age of 18 are considered minors, and are considered wholly dependent. Also, a dependent child mentally or physically incapable of self-support is wholly dependent regardless of age. Children 19 or older who are enrolled in school are entitled to benefits until age 23 or until they leave school, whichever comes first. § 42-9-290.

Death Benefits/Parents and Siblings

If the deceased leaves no wholly dependent person, partially dependent persons receive a portion of the death benefit. § 42-9-290. A partially dependent person is one who received some support from the deceased but has other income as well. To compute a partially dependent’s heir of the death benefits, first determine the annual contribution by the deceased to the partially dependent person, then divide by the deceased’s annual earnings at the time of the injury. This gives you the percentage of the deceased’s income that was paid to the partially dependent person. Now multiply that percentage by the death benefit. If there is more than one partially dependent person, each person receives a portion of the death benefit according to their relative extent of dependency. . §4 2-9-130.

After payment of partially dependent persons: The balance is commuted to present value, burial expenses are paid, and what is left is paid first to nondependent children and, if no nondependent children, then to the deceased’s mother and father. If both mother and father predeceased the deceased, then the deceased’s personal representative is paid actual burial expenses and the costs of administration of the deceased’s estate and the remainder goes to the Second Injury Fund. § 42-9-140.

If no wholly or partially dependent persons: Commute to present value, pay the burial expenses, and pay the balance first to nondependent children. If none, pay to the deceased’s mother and father. If they predeceased the deceased, pay the deceased’s personal representative the actual costs of burial expenses and costs of administration of the deceased’s estate and the remainder goes to the Second Injury Fund. § 42-9-140.

“Deadbeat” parent or parents exception: If the death benefit is payable to the deceased’s mother and father, the Commission can deny benefits to a parent or both parents if it finds that the parent or parents failed to reasonably provide support for the decedent as defined in §20-7-40 and did not otherwise provide for the needs of the decedent during his or her minority. S.C. Code Ann. §42-9-140(F).

Death Benefits/Amounts of Benefits

A death benefit is 500 weeks. When an employee receives or is entitled to compensation under this Title for an injury covered by the second paragraph of § 42–9–10 or 42–9–30 and dies from any other cause than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his next of kin dependent upon him for support, in lieu of the compensation the employee would have been entitled to had he lived. But if the death is due to a cause that is compensable under this Title and the dependents of such employee are awarded compensation therefor, all right to unpaid compensation provided by this section shall cease and determine.

Rules applicable to aliens not residents (or about to become nonresidents) of the United States or Canada: The same amounts are paid as provided for residents except that dependents in any foreign country are limited to a surviving spouse and child or children or, if there is no surviving spouse or child, to a surviving father or mother whom the employee has supported, either wholly or in part, for a period of 3 years before the date of the injury. The Commission may, at its option, or upon the application of the carrier, limit the award to one-half of the commuted amounts to such aliens.

Medical Benefits

Medical, surgical, hospital and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from the injury to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability. S.C. Code Ann. §42-15-60.

As a general rule, medical benefits must be provided until claimant reaches maximum medical improvement (MMI). There are three exceptions to this rule:

(1) Permanent and total disability: Where the claimant has been deemed permanently and totally disabled, he or she is entitled to lifetime medical treatment for injuries. S.C. Code Ann. §42-15-60.
(2) Medicals that tend to lessen the period of disability. Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 514 S.E.2d 593 (1999). In Dodge, the injured worker had reached MMI and had been paid an award but needed on-going pain medication to work. Carrier refused. The Supreme Court held that, because the injured worker could not work without his pain medication, it was medical treatment that tended to lessen his period of disability and ordered it be provided indefinitely. For injuries on or after July 1, 2007, expert medical evidence is required to prove the treatment will tend to lessen the period of disability.
(3) Change of condition period: The Act provides that a claimant can file to reopen his claim if he has a change of condition for the worse within one (1) year from the date of the last payment of compensation. For injuries on or after July 1, 2007: When a claim is settled on a Form 16-A, continued treatment must be provided only during the one (1) year change-of-condition period UNLESS the Form 16-A or Order of the Commission provides otherwise. In addition, no future medical treatment is required where the claimant has not returned to the authorized physician for more than one (1) year unless the settlement agreement or Order of the Commission provides otherwise or the employee has made reasonable attempts to obtain treatment. §42-15-60.

Second opinions will be granted in most cases. However, challenges to second opinions may still be made and determined on a case-by-case basis.

Prosthetic devices must be provided for the life of the injured worker or so long as are necessary. § 42-15-60.

Refusal of Medical Treatment

May result in suspension of TTD/TPD for the period of refusal/non-compliance. S.C. Code Ann. §§42-15-60; 42-15-80. Reg. 67-506. Temporary compensation is not payable for that period unless, in the opinion of a Commissioner, the injured worker provides evidence of circumstances that justified the refusal/non-compliance. S.C. Code Ann. §42-15-60

SUBROGATION OR CREDIT

General Rule

Where an employee is injured in a compensable accident caused by the negligence of a third-party, the Act allows the employee to collect workers’ compensation benefits from the employer and further preserves the employee’s rights to bring an action against the negligent third-party. The employer’s carrier has a lien against the proceeds of any recovery from the third-party to the extent of benefits paid. S.C. Code Ann. §§42-1-550 through 42-1-580. If the amount recovered by the claimant is less than his estimated total damages, the Commission may reduce the amount of the carrier’s lien by the portion that such settlement or judgment bears to the Commission’s evaluation of the employee’s total cognizable damages at law. (§42-1-560(f)). “Total cognizable damages at law” means all of those elements of damages recognized and known to law as being applicable to third-party actions without regard to liability. Garrett v. Limehouse & Sons, Inc., 293 S.C. 349, 360 S.E.2d 519 (Ct. App. 1987). See also Hardee v. Bruce Johnson Trucking Co., 393 S.C. 349, 360 S.E.2d 522 (Ct. App. 1987). Where the lien is on-going such as lifetime benefits for a paraplegic, the lien that is subject to reduction begins on the day benefits are paid and ends on the day the third-party suit is resolved. If after payment of the lien there remains $5,000, then the balance of the third-party proceeds are placed in a fund to cover future benefits and are not subject to a reduction. Breeden v. TCW, Inc., Tennessee Express, 355 S.C. 112, 584 S.E.2d 379 (2003).

Attorney’s Fee

Up to one-third (1/3) of the carrier’s lien will be paid to the recovering attorney as attorney’s fees. In addition, the carrier must pay a proportionate share of the costs of recovery. §42-1-560(b).

Motor Vehicle Accidents

Generally, where a worker is injured in a motor vehicle accident caused by the alleged negligence of third-party, the employer/carrier may pursue subrogation pursuant to S.C. Code Ann. §§ 42-1-550 through 42-1-580.

Health Benefits

Health insurance carriers often pursue subrogation claims against employers/carriers in Workers’ Compensation claims in the case of compensable injuries for which the employer/carrier accepts liability or is ordered to pay benefits under the Act. The subrogation claims generally include those medical benefits provided by the health insurance carrier for injuries causally related to the work accident.

Credits

Unemployment Benefits: employers/carriers may not take credit for unemployment benefits paid to an injured worker by the South Carolina Department of Employment and Workforce. Short- and Long-Term Disability Insurance: employers/carriers may take credit for short- or long-term disability benefits paid to a claimant through a policy of disability insurance ONLY IF the employer paid 100% of the premium for the policy from which the benefits were paid AND the benefits were paid in lieu of workers’ compensation benefits.

ATTORNEYS

Any attorney must be licensed and in good standing with the South Carolina Bar and/or another recognized State’s Bar’s Association to represent a party before the South Carolina Workers Compensation Commission.

Letter of Representation: An attorney employed to represent a party before the Commission must notify the Commission’s Judicial Department in writing. (Reg. 67-1202).

When an attorney represents a party, the Commission notifies the attorney, not the party. It is up to the attorney to notify the party. (Reg. 67-210(B)).

Carriers must designate defense counsel. Additionally, the employer/carrier’s attorney in a contested case must file a letter of representation with the Judicial Department and provide a copy to the opposing party no later than sixty (60) days from the date of service of the Form 50 or Form 52. (Reg. 67-603(D)).

Any Form requesting a hearing (Forms 50, 21 or 52) and all motions filed with the Commission are considered legal pleadings and require the Employer’s representative (attorney) to file and serve the document.

Certifying Organization

Currently the South Carolina Supreme Court does not recognize the need to specialize in or be certified as a “specialist” to represent a party before the South Carolina Workers Compensation.

Required Documentation

Out of state attorneys must obtain local counsel and apply through the South Carolina Workers Compensation Commission for Pro Hac Vice status.

Additional Information

Additional information contact the South Carolina Bar Association at www.scbar.org

CLAIMS PROFESSIONALS

Claims professionals are required to be licensed in South Carolina through the Department of insurance in order to manage and adjust workers’ compensation claims. There is no continuing education requirement but there is a continued licensed requirement.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

Office of Adjudication

The South Carolina Workers Compensation Commission is a stand-alone agency composed of a judicial and administrative department. The judicial department, which handles contested claims, is managed by a Judicial Director.

Appointment of Workers’ Compensation Judges

The Commission consists of seven members appointed by the Governor with the advice and consent of the senate for six years terms.

Qualifications of WCJ

The Act does not provide any specific requirements to be a commissioner. In the event the Governor does not fill a vacancy within sixty days after the vacancy occurs, the commission by majority vote shall deputize a person with suitable experience, training, and knowledge to serve as a deputy commissioner to serve until such time as the Governor fills the vacancy. The commissioners are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules, and the State Ethics Commission is responsible for enforcement and administration of Rule 501 pursuant to Section 8-13-320. Commissioners must also comply with the applicable requirements of Chapter 13 of Title 8.

Procedure

Procedures before the Commissioner are subject to the South Carolina Administrative Procedures Act, 1-23-10, et seq. The South Carolina Rules of Evidence do not apply. A claim for benefits can be initiated by a First Report of Injury, but a letter notifying the Commission of pertinent information, or by a Form 50 Notice of Claim and/or Request for Hearing. The employee is referred to as the claimant. Both the employer and the carrier, unless the employer is self-insured or lacks insurance, are named as defendants. If the employer lacks insurance and is not self-insured, the SC Uninsured Employers Fund should be a defendant. A single commissioner hears disputed issues. The injured workers is known as a claimant. The Employer and Carrier are both defendants. Parties can issue subpoenas in state, and take depositions. Otherwise there is no real discovery.

South Carolina does not incorporate Utilization Review in its Act.

Investigatory Powers

The Commission or any member or any person deputized by it, may subpoena witnesses, administer or cause to be administered oaths and examine or cause to be examined such parts of the books and records of the parties to proceedings as relate to questions in dispute. § 42-3-140. The Commission can order medical examinations.

Reasoned Decision

The commission shall hear the parties at issue and their representatives and witnesses and shall determine the dispute in a summary manner. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, must be filed with the record of the proceedings. The order should include sufficient evidence so that a reviewing court can determine if there is factual evidence to support the findings of fact. § 42-17-40

Workers’ Compensation Appeals

General Rule

An appeal of the hearing commissioner’s order must be made within 14 days. Appeals are made to the Full Commission. Full commission reviews shall be conducted by all commissioners, excluding the original hearing commissioner, or by three-member panels, excluding the original hearing commissioner, appointed by the chairman. The decisions of three-member panels have the same force and effect as full commission reviews. § 42-3-20

Scope of Review

The Full Commission, or the Appellate Panel, determines the case based on the record from the hearing. In extraordinary instances, the Commission can permit the introduction of additional evidence. Reg. 67-207. The Appellate Panel hears the appeal de novo, and can issue it on findings of fact and conclusions of law without regard to the single commissioner’s order.

Original Jurisdiction

All questions arising under the Act shall be determined by the Commission, except as otherwise provided in the Act. 42-3-180. The Workers' Compensation Commission has subject matter jurisdiction only where the relationship of employer and employee exists at the time of the alleged injury for which the claim is made.  The principal that parties cannot by consent confer jurisdiction upon a court also applies to the Workers' Compensation Commission.  McCreery v. Covenant Presbyterian Church (S.C.App. 1989) 299 S.C. 218, 383 S.E.2d 264, reversed 303 S.C. 271, 400 S.E.2d 130

Circuit Court and Appellate Courts

For injuries prior to 7/1/2007, an appeal from the Commission was taken first to the circuit court. For all injuries after that date, appeals are taken to the S.C. Court of Appeals. A party aggrieved by the decision of the Court of Appeals can petition the SC Supreme Court for certiorari to review the Court of Appeals decision; this is discretionary with the Supreme Court. 1-23-380(g) governs the standard of judicial review of awards of the Commission. The Commission can be reversed “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

“Substantial evidence” is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.

SETTLEMENT

The South Carolina Act allows for the voluntary settlement of claims other than adjudicated lifetime benefits cases at any time. S.C. Code Ann. Section

Mandatory Mediation

In 2013, the Commission adopted Regulation 67-1802 which requires mediation prior to a contested hearing of the following claims: Claims alleging permanent total disability or the loss of more than 50% of the use of the back resulting in permanent total disability; occupational disease claims; third party lien reduction claims; contested death claims, mental/mental injury claims; and claims involving concurrent jurisdiction under the S.C. Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act. The parties may consent to use any mediator who is certified as a mediator pursuant to the requirements of the S.C. Bar Association. If the parties are unable to agree on a mediator, the Commission appoints a mediator. Parties must select a mediator within ten days of the filing of the Employer’s Response to a hearing request or the response by the Claimant to the Employer’s Request for hearing. Mediation must be completed within sixty (60) days of the responsive pleading. If the mediation is not completed within this time frame, the case will be set for a contested hearing before the jurisdictional commissioner.

Claims with an unrepresented claimant are not subject to mandatory mediation unless the Claimant requests that the case be mediated.

Voluntary Mediation

Regulation 67-1803 provides for the voluntary mediation of any claim. If all parties do not consent to mediation, however, the case will be set by the Commission for a contested hearing.

Informal Settlement Conferences

Assume the claim is uncontested and no attorneys are involved, just you and the claimant. When the claimant reaches MMI, someone has to determine permanent disability. At this stage, permanency can be determined in one of two ways. Either the parties can agree, or they can attend an informal conference and ask a mediating officer to help the parties reach an agreement. Both methods utilize the Form 16 (or Form 16-A for accidents post July 1, 2007) and an attorney is usually not involved or needed. All agreements to resolve a claim, whether by Form 16 or 16-A or otherwise, except for clincher agreements where both parties are represented, require the approval of one or more commissioners.

Non-binding Mediation. An informal conference is basically non-binding mediation. The claimant and a representative of the carrier meet with a mediating officer from the Commission. He or she will review the file and will recommend to the parties a rating or dollar amount he thinks is fair. Either party can reject the recommendation or make a counter-offer. If the parties agree on an amount, the case is settled on a Form 16 or 16-A. If informal conference fails, the file is returned to the Judicial Department and scheduled for a hearing before a Commissioner.

Use the Form 18. See Regulation 67-804. The proper way to request an informal conference (a/k/a “viewing”) is to request one on a Form 18. Simply check “yes” in Section 6 on an updated Form 18 and mail it to the Commission as soon as claimant reaches MMI. Attach to the Form 18 a copy of the doctor’s report stating claimant has reached MMI and an impairment rating, if any. For accidents post July 1, 2007, attach a completed Form 14B (subject to $200.00 fine without it). The Commission will also require you file a Form 15, Form 20 and Form 17 if applicable and not filed previously.

Forms 16 and 16-A – A Form 16 settlement allows the Claimant one (1) year to file for a change of condition for the worse. Also, it entitles the claimant to continued “authorized” treatment for one year. If you agree to provide further treatment, language should be added to the Form 16 describing what kind of future treatment will be provided. § 42-15-60. Completing the Form 16 is self-explanatory. Complete as much of it as you can before the informal conference. If possible, be prepared to write the check that day. This is not always possible, but if you can reach an agreement, complete and execute a Form 16, write the check and have the claimant sign the Form 19 all at the same time. The one year change of condition clock will begin that day.

For Injuries after July 1, 2007: A Form 16A should be used instead of a Form 16. When a claim is settled on a Form 16A, the employer is not required to provide further medical treatment after one year from the date of full payment unless the form provides otherwise. §42-15-60(B)(1). A Form 14B, Physician’s Statement, must be attached. The Form 14B states whether claimant has reached maximum medical improvement, impairment rating(s), restrictions, and future medical treatment. It must be completed by the treating physician.

Compromise and Release

Often, the carrier will want to settle a case on a full and final basis. This can be done in South Carolina. The document has many names: Agreement and Release; Settlement Agreement; Atkins Release; etc. The most common name is “The Clincher.” It is a document that, after approval by the Commission, fully and finally ends claimant’s claim with the filing of a Form 19. Claimant waives any future medical expenses, benefits, and – most importantly- the right to reopen the file if he has a change of condition for the worse within one (1) year of the last date of payment.

Clinchers cost more. Because the claimant is waving his right to reopen his file and receive more medical benefits, the carrier will pay more for the Clincher than for a Form 16 settlement.

The Clincher is a contract. A Clincher is a legal contract and must be prepared by an attorney. There are no set forms for Clincher, and while many may look similar, not every Clincher is the same.

Approval by Commission. If Claimant is represented, clincher agreements no longer have to be approved/signed by a Commissioner. The only requirement is the Agreement and Release must be filed with the Commission. Commission approval is still required, however, if Claimant is unrepresented, by way of an informal conference. (Reg. 67-803(B)(2)).

INSURANCE

General Rule

Every employer liable for workers’ compensation benefits under the Act in South Carolina must either insure and keep insured his liability through a licensed insurance company authorized to write workers’ compensation insurance in South Carolina, or qualify by law as a self-insurer § 42-5-20 (see also www.scselfinsurers.com )

Particular Requirements

Every employer subject to or electing to become subject to the Act shall file with the Commission, in a form prescribed by it, annually evidence of compliance with the provisions of 42-5-20. In the event the employer insures his liability under the Act with an insurance carrier, the carrier shall be required to make necessary filings with the Commission’s registered agent (NCCI) in the format prescribed and accepted by the Commissions agent. SC Code Ann. 42-5-30; R-67-404,405 and 416.

General Rule Where Employer is Uninsured

When an employee makes a claim for benefits pursuant to Title 42 and the State Workers' Compensation Commission determines that the employer is subject to Title 42 and is operating without insurance or as an unqualified self-insurer, the commission shall notify the South Carolina Uninsured Employers fund of the claim. The fund shall pay or defend the claim as it considers necessary in accordance with the provisions of SC Code Ann. Section 42-7-200. When the fund is notified of a claim, the fund may place a lien on the assets of the employer by way of lis pendens or otherwise so as to protect the fund from payments of costs and benefits. If the fund is required to incur costs or expenses or to pay benefits, the fund has a lien against the assets of the employer to the full extent of all costs, expenses, and benefits paid.

Damages by Action at Law Where Employer is Uninsured

Generally, if an employee or the employee’s dependents elect to bring an action at law “to recover damages for personal injury in the course of his employment, or for death resulting from such injury,” the South Carolina Workers’ Compensation Act provides that his exclusive remedy is through the South Carolina Workers Compensation Act. This is called the “exclusivity doctrine.”

Employers who have elected to withdraw from the Act, being at that time exempt from the Act, or Employers not subject to the Act through jurisdictional requirements or exemptions are liable in Civil Court for damages founded in negligence. SC R 67-403, 404 and SC Code Ann Section 42-1-360. Certain common law defenses are still available as allowed in Civil Court.

Uninsured Employers Guaranty Fund

§ 42-7-200 established, within the office of the State Accident Fund, the South Carolina Workers' Compensation Uninsured Employers' Fund. The fund is created to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees in accordance with provisions of this section. The fund is administered by the director of the State Accident Fund, who shall establish procedures to implement this section. To establish and maintain the South Carolina Workers' Compensation Uninsured Employers' Fund, there must be earmarked from the collections of the tax on insurance carriers and self-insured persons provided for in §§ 38-7-50 and 42-5-190 an amount sufficient to establish and annually maintain the fund at a level of not less than two hundred thousand dollars. The Fund has a right of subrogation against any employer for whom it pays benefits.