TOP 10 ADVANTAGES TO INJURED WORKERS UNDER SC WORKERS’ COMPENSATION LAW
As a seasoned workers’ compensation attorney with over 25 years experience, I am still amazed at the critical differences between the workers’ compensation laws of South Carolina and North Carolina. Many of my professional colleagues often argue that “SC should be more like NC” until they learn the real distinctions between the laws as written. Additionally, the NC legislature just passed sweeping new changes this past year that have dramatically tilted the already biased laws in further favor of employers and workers’ compensation insurance carriers. Fortunately, here is South Carolina, our laws, while not perfect, are substantially more fair, and our SC Workers’ Compensation Commission is operated with greater efficiency allowing more injured workers to have their cases heard in court and resolved much more quickly.
Below are the “Top 10 Advantages of SC Workers’ Compensation Law”:
1. Average Weekly Wage (AWW) Includes Everything – This initial determination of AWW and the resulting “compensation rate” (2/3 of AWW). In NC, an employee is only able to include those wages earned from the job on which the injury occurred. Of course, if you are out of work, you are losing all wages and benefits, and many people in this difficult economy have more than one job. In SC, ALL wages and benefits, even from other employers, are “stacked” to get the highest, most fair AWW possible.
2. Medical Treatment Can Be Changed – Because the employer/carrier pays for “authorized medical treatment,” they get to choose which doctors to use. However, over time, experienced workers’ compensation attorneys and the Commission develop a sense of which doctors are “company oriented” and which are “patient oriented.” In cases where treatment is not working or seems too conservative, employees can request a second opinion from another specialist if carrier refuses a reasonable request. Further, after release from medical care and an initial impairment rating, the employee can also request another review by a different doctor for additional treatment which “may tend to lessen the period of disability.” By contrast, a second opinion is available in NC to an employee who has been released from care for purposes of impairment ratings only. No additional treatment will be awarded no matter what the second opinion doctor recommends.
3. Pre-Existing Conditions Are Not Fatal to Claim – As we get older, we all develop varying levels of “degenerative changes” in our bones and joints. Or, a person may have been injured on the job or outside of work previously. Unless someone actively conceals this prior injury in an employment physical, a “new injury” or “aggravation of a pre-existing condition” is still compensable under SC workers’ compensation law.
4. Impairment Ratings Only One Factor – After a claimant is released from medical treatment, the doctor will issue an “impairment rating.” In NC, this rating is given great weight and is difficult to challenge, no matter how seemingly biased and unfair it may seem. In SC, by comparison, the treating physician’s impairment rating is just one factor used in determining a permanent disability award by Commission. Other factors include the claimant’s age, education, work history and experience, as well as future medical prognosis and anticipated treatment.
5. Right to Privacy with Treating Doctor – Nurse Case Managers (NCM) work for and are paid by the insurance companies. They answer to the adjuster, and their job and future referrals depends on getting you back to your job, even if you may not be ready to return to work. In NC, attorneys cannot stop NCM from speaking with their clients. In SC, we can and do. The NCM should be focused on getting recommended treatment approved and scheduling appointments, not playing detective and trying to get information from you or about you to report back to the adjuser. In SC, lawyers can protect their clients from abuses and require the patient be allowed to be examined without interference.
6. Prompt Hearings – When a claim is denied or a dispute arises in an admitted case, a claimant can request a hearing and be heard in approximately 3-4 months on average. If the employer/carrier requests a hearing, the matter will be set within 2 months, by regulation. That is a very quick timeline, and both parties must be ready to fully present their cases. By comparison, the process in NC can take many months with no clear directives in the law, and medical depositions are taken after the intial hearing where fact witnesses are heard.
7. Prompt Decisions and Orders – Following a hearing, Commissioners review all submitted evidence, including medical records and depositions of treating physicians or other experts. They then issue written Order narratives for prevailing attorney to use to draft a formal proposed Decision and Order. Usually, the decision occurs in less than 30 days. Prompt resolution of pending issues is very important to either bring a case to a close or get a claimant needed medical treatment. In NC, this process can take additional months after waiting for many prior months for the initial hearing.
8. Prompt Appeals – Again, the timeline between a prompt resolution and additional delay can be quite dramatic. In SC, appeals take months, not years. First, there must be a legitimate factual dispute or legal issue to challenge. Factual disputes usually result in an affirmation, as the Full Commission will typically defer to the hearing Commissioner as that judge was able to personally observe the demeanor of the claimant and/or witnesses. Only legal issues can be properly appealed beyond the Workers’ Compensation Commission to the Circuit Court. Regardless of the basis, appeals to the Full Commission are usually finalized in approximately sic (6) months. By comparison, appeals in NC can add several years to the process and force claimants to go without treatment or compensation.
9. Resolving Cases By Commission Order – Mediation is required in NC and is really the only way to resolve cases. There is no current option available to force a carrier to pay a rating up front or pay future benefits other than by agreement. In SC, we are now fully utilizing the benefits of mediation to get cases settled. However, if those efforts fail, an aggrieved party still has the all important ability to have their case heard before a Commissioner. Not surprisingly, the availability of that ultimate option will continue to be most helpful in mediation negotiations.
10. Uninsured Employers Fund (UEF) – In SC, employers are legally required to have workers’ compensation insurance if they have four (4) or more regularly scheduled employees. In NC, the number required is three (3). However, despite the laws, many employers, especially in high risk, dangerous professions (construction, roofers, etc.) are simply not able to pay the high premiums and go without it. Sadly, if one of their workers is seriously injured, they may not be compensated…in NC. In SC, however, there is the Uninsured Employers Fund which, under these circumstances, will pay the medical bills and claims of an injured worker and then go back against the employer for reimbursement. The good news is that the person injured and their family in SC is compensated.
Robert J. Reeves has been a practicing workers’ compensation lawyer for over 25 years. He is able to help those injured throughout South Carolina but primarily focuses on cases in Rock Hill, Fort Mill, Lancaster, Lake Wylie, Clover, and Columbia.