Mandatory Mediation in SC Workers’ Comp Cases – Something We Can All Agree On

Jan 14, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

Workers’ Comp Mediation is Just Around the Corner (by Stanford E. Lacy, Founding Partner, Collins & Lacy, P.C.)

SC Workers’ Comp Commission Jurisdiction – Deadlines Matter

Jan 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

The following case reaffirms that hiring an experienced workers’ compensation attorney really can make all the difference.  In this matter, the attorney was just two (2) days late filing a notice of appeal.  Even though the Commission made an exception to allow the appeal, the SC Supreme Court held that the Commission did not have proper jurisdiction once the deadline had passed. The case was ended. Nothing further could be done. The claimant lost because her lawyer was just 2 days late. Experience counts, especially in law.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injuries, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, chemical and fire burns, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Betty Ann Allison, as Personal Representative of the Estate of Benjamin Allison, Respondent,

v.

W. L. Gore & Associates, Appellant.

Appeal from Beaufort County Marvin Dukes, Master-in-Equity

Opinion No. 27031 
Heard June 9, 2011 – Filed August 22, 2011

VACATED

Carmelo B. Sammataro, of Turner, Padget, Graham & Laney, of Columbia, and O. Shayne Williams, of Turner, Padget, Graham & Laney of Greenville, for Appellant.

Marion Clyde Fairey, Jr., of Hampton, for Respondent.

JUSTICE PLEICONES:  This is a direct appeal in a workers’ compensation case from a master’s order reversing the Full Commission and finding respondent’s decedent is totally disabled as the result of an occupational disease.  On appeal, appellant (Employer) contends this matter should have been dismissed because respondent’s admittedly untimely appeal to the Commission deprived the Commission of jurisdiction.  We agree that the untimely appeal to the Commission requires that we vacate both the master’s order and the decision of the Full Commission.

ISSUE

Did respondent’s failure to file a Form 30 with the Commission within fourteen days of receiving notice of the single commissioner’s order deprive that body of appellate jurisdiction?

ANALYSIS

South Carolina Code Ann. § 42-17-50 (Supp. 2010) provides for an appeal to the Commission from the decision of a single commissioner if the “application for review is made to the Commission within fourteen days from the date when notice of the award shall have been given. . . .”  25A S.C. Reg. 67-701 (Supp. 2010) provides that such review shall be done by a Form 30, and that “the fourteen day period is jurisdictional.”  Reg. 67-701 A.  Here, respondent did not file his Form 30 within fourteen days of receiving notice of the single commissioner’s order, and Employer moved before the Commission to dismiss the appeal arguing the Commission lacked subject matter jurisdiction.  The Commission denied the motion, emphasizing the appeal was only two days late and that it resulted from respondent’s attorney’s error.  The Commission upheld the single commissioner’s denial of benefits.

Employer took no immediate appeal from the interlocutory order denying its motion to dismiss, but raised the denial in respondent’s appeal to the circuit court.  The master determined that by Employer’s failure to take an immediate appeal, the ruling that the Commission had “subject matter” jurisdiction over respondent’s appeal was rendered the law of the case.  This was error.

Employer argues, and we agree, that it could not immediately appeal the order denying the motion to dismiss.  Pursuant to S.C. Code Ann. § 42-17-60 (1990), an appeal from the Commission may be taken to circuit court “under the same terms and conditions as govern appeals in ordinary civil actions.”  This statutory language has been interpreted to allow an immediate appeal from an interlocutory order of the Commission only where the order “affects the merits.”  Chastain v. Spartan Mills, 228 S.C. 61, 88 S.E.2d 836 (1955); see also King v. Singer Co. Power Tool Div., 276 S.C. 419, 279 S.E.2d 367 (1981); Brunson v. Am. Koyo Bearings, 367 S.C. 161, 623 S.E.2d 870 (Ct. App. 2005).  A circuit court order denying a motion to dismiss for lack of subject matter jurisdiction is not directly appealable because, among other things, it does not affect the merits.  Woodward v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995) overruled in part on other grounds Sabb v. South Carolina State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002).  The master erred in holding that the Commission’s denial of Employer’s motion to dismiss was immediately appealable.

The master also held that the Commission had “subject matter” jurisdiction to hear respondent’s appeal despite the untimeliness of the Form 30.  We now clarify that this issue is properly couched as one of appellate jurisdiction rather than subject matter jurisdiction.  See Great Games, Inc. v. S.C. Dep’t of Rev., 339 S.C. 79, 529 S.E.2d 6 (2000).  A court’s subject matter jurisdiction is determined by whether it has the authority to hear the type of case in question.  E.g., Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994).  This same principle applies to administrative agencies.  The Commission has the authority to review decisions of a single commissioner, and under the Gold Kist standard, there is no subject matter jurisdiction issue here.  We now clarify that the question of compliance with rules, regulations, and statutes governing an appeal is one of appellate jurisdiction, see In re November 8, 2008 Bluffton County Election, 385 S.C. 632, 686 S.E.2d 685 (2009), and overrule prior decisions to the extent they pose the question of an executive agency’s authority to hear an appeal as one of subject matter jurisdiction.  E.g., Bursey v. S.C. Dep’t of Health and Envtl. Control, 369 S.C. 176, 631 S.E.2d 899 (2006); S.C. Dep’t of Corrections v. Tomlin, 387 S.C. 652, 694 S.E.2d 25 (Ct. App. 2010); Hamilton v. Bob Bennett Ford, 336 S.C. 72, 518 S.E.2d 599 (Ct. App. 1999) modified on other grounds 339 S.C. 68, 528 S.E.2d 667 (2000).

On the merits, we hold that the Commission lacks the authority to extend the fourteen days permitted for the filing of an appeal from the decision of a single commissioner.  See Goodman v. City of Columbia, 318 S.C. 488, 458 S.E.2d 531 (1995) (construing a pro se letter sent within fourteen days as satisfying the notice requirements of § 42-17-50 and Reg. 67-701).  This holding is consistent with the general rule that an appellate body may not extend the time to appeal.  E.g., Rule 263(b), SCACR; S.C. Code Ann. § 1-23-380(A)(1) (Supp. 2010); S.C. Coastal Conservation League v. S.C. Dep’t of Health and Envtl. Control, 380 S.C. 349, 669 S.E.2d 849 (Ct. App. 2008) overruled on other grounds 390 S.C. 418, 702 S.E.2d 246 (2010); Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000).

CONCLUSION

Since the Full Commission lacked jurisdiction to hear respondent’s appeal, the decision of that Commission as well as the master’s order are VACATED.

TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.

SC Workers’ Compensation Educational Association Lifetime Service Award – Stanford E. Lacy

Jan 7, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

The following announcement was posted on the Collins & Lacy, P.C. website.  Congratulations, Stan. I am honored to have learned workers’ compensation law from this man when he gave me my first job after law school.  He is a true icon in his field, and I will always be grateful for his early mentoring and long-lasting guidance in my career.

Collins & Lacy, P.C. and the South Carolina Workers’ Compensation Educational Association (SCWCEA) are pleased to announce founding partner Stanford E. Lacy has been honored with the Lifetime Service Award.

The SCWCEA Lifetime Service Award is given by the SCWCEA Board to individuals who have contributed significantly to the success and betterment of the SCWCEA and/or the South   Carolinaworkers’ compensation system. The Board unanimously determined there was one individual that completely fit the criteria of this great designation.

“Stan Lacy lives and breathes workers’ compensation. His institutional knowledge of the Association and the South Carolinaworkers’ compensation system is invaluable, and his presence and with are infectious,” said Chris Daniel, 2011 SCWCEA President and Claims Director for Companion Property & Casualty Group.

The Lifetime Service Award is not an annual event. It is given sparingly and only to those individuals who have made it their life’s work to enhance the SCWCEA and/or the SC workers’ compensation system.

“Stan has been a devoted member of the SCWCEA for more than 30 years. He’s served as president of the association, as well as an officer, board member, chair of multiple committees, a member of even more committees, and has even been a registration packet stuffer. Stan has done everything except run the organization, and I’m not certain he didn’t do that,” said Donna Croom, SCWCEA Executive Director.

Lacy graduated from the Universityof Virginiain 1967 and earned his law degree from the University of South Carolina School of Law in 1974. South Carolina Governor Carroll Campbell appointed him to the Advisory Committee for the Improvement of Workers’ Compensation Laws in South Carolina, where he worked with the legislature to review and revise legislation affecting the state’s workers’ compensation system. He began teaching workers’ compensation as an adjunct instructor at the USC School of Law in 1981 and has continued to teach ever since. Lacy is AV-rated by Martindale-Hubbell, has been selected by his peers for seven consecutive years to be included in The Best Lawyers in America, and was most recently honored by Best Lawyers as the 2012 Columbia,S.C. Lawyer of the Year for Workers’ Compensation Law.

“The Lifetime Service Award is a testament to Stan’s lifetime of work on behalf of the businesses of South Carolina. He is a magnificent lawyer, a leader in the legal community and a fixture of workers’ compensation law in South   Carolina. We couldn’t be more proud of our partner and friend,” said Collins & Lacy Managing Partner Ellen Adams.

About Collins & Lacy, P.C.

In 2011, Collins & Lacy, P.C. celebrates 27 years of providing legal services to South Carolina.  With offices in Columbia, Greenville and Myrtle Beach, South Carolina, the firm’s primary focus is defense litigation, representing local, regional and national clients in the areas of construction, employment law, hospitality/retail/entertainment law, insurance/bad faith, products liability, professional liability, public policy, transportation and workers’ compensation.   Collins & Lacy is committed to upholding the highest standards for integrity, civility and community service.

About the South Carolina Workers’ Compensation Educational Association

The SCWCEA is a non-profit organization of over 800 workers’ compensation professionals from throughout the United States. It conducts educational programs and provides educational resources for its members and the general public pertaining to the South Carolina Workers’ Compensation Act and its administration by the South Carolina Workers’ Compensation Commission. These programs and resources keep our members up-to-date on the very latest on medical and legal issues related to workers’ comp.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injuries, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, chemical and fire burns, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We would be honored to have the opportunity to sit down and personally discuss your case.

Call us today for a private, confidential consultation to review your particular case and determine the best course of action to protect you and your family.  The sooner you call; the quicker we can start helping.

SC Workers’ Compensation – Impairment Ratings – What Do They Mean?

Jan 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

 You were injured on the job.  You’ve been released from medical care, and the doctor has given you an impairment rating.  Now what?

Unless you qualify for permanent and total disability, which we will discuss in a subsequent blog, you will be assigned an impairment rating to a particular part of your body depending on your injury.  For example, if you injured your knee at work and had arthroscopy surgery, the treating physician may release you from care and give you a 10% impairment rating.  If you look down the list in the code section below, you will find the knee is worth 195 weeks total.  Given the 10% rating, you would be entitled to a minimum of 19.5 weeks (195 x 10%) of weekly compensation.  I say at a minimum because impairment ratings are only one factor the Commission uses to determine an award of disability.  Other factors include the injured workers age, education, prior work history, permanent work restrictions, and future medical treatment needs. The following is the actual statutory law for your review.  It is SC Code Section 42-9-10:

Schedule of period of disability and compensation.

In cases included in the following schedule, the disability in each case is considered to continue for the period specified and the compensation paid for the injury is as specified:

(1) for the loss of a thumb sixty-six and two-thirds percent of the average weekly wages during sixty-five weeks;

(2) for the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of the average weekly wages during forty weeks;

(3) for the loss of a second finger, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;

(4) for the loss of a third finger, sixty-six and two-thirds percent of the average weekly wages during twenty-five weeks;

(5) for the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of the average weekly wages during twenty weeks;

(6) the loss of the first phalange of the thumb or any finger is considered to be equal to the loss of one half of such thumb or finger and the compensation must be for one half of the periods of time above specified;

(7) the loss of more than one phalange is considered the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;

(8) for the loss of a great toe, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;

(9) for the loss of one of the toes other than a great toe, sixty-six and two-thirds percent of the average weekly wages during ten weeks;

(10) the loss of the first phalange of any toe is considered to be equal to the loss of one half of such toe and the compensation must be for one half the periods of time above specified;

(11) the loss of more than one phalange is considered as the loss of the entire toe;

(12) for the loss of a hand, sixty-six and two-thirds percent of the average weekly wages during one hundred and eighty-five weeks;

(13) for the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;

(14) for the loss of a shoulder, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks;

(15) for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;

(16) for the loss of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;

(17) for the loss of a hip, sixty-six and two-thirds percent of the average weekly wages during two hundred eighty weeks;

(18) for the loss of an eye, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;

(19) for the complete loss of hearing in one ear, sixty-six and two-thirds percent of the average weekly wages during eighty weeks; and for the complete loss of hearing in both ears, sixty-six and two-thirds percent of the average weekly wages during one hundred sixty-five weeks, and the commission, by regulation, shall provide for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards;

(20) total loss of use of a member or loss of vision of an eye is considered as equivalent to the loss of the member or eye. The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye is the proportion of the payments provided in this section for total loss as such partial loss bears to total loss;

(21) for the loss of use of the back in cases where the loss of use is forty-nine percent or less, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks. In cases where there is fifty percent or more loss of use of the back, sixty-six and two-thirds percent the average weekly wages during five hundred weeks. The compensation for partial loss of use of the back shall be such proportions of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is fifty percent or more loss of use of the back the injured employee shall be presumed to have suffered total and permanent disability and compensated under Section 42-9-10

(B). The presumption set forth in this item is rebuttable;

(22) for the total or partial loss of, or loss of use of, a member, organ, or part of the body not covered in this section and not covered under Section 42-9-10 or 42-9-20, sixty-six and two-thirds of the average weekly wages not to exceed five hundred weeks. The commission, by regulation, shall prescribe the ratio which the partial loss or loss or partial loss of use of a particular member, organ, or body part bears to the whole man, basing these ratios on accepted medical standards and these ratios determine the benefits payable under this subsection;

(23) proper and equitable benefits must be paid for serious permanent disfigurement of the face, head, neck, or other area normally exposed in employment, not to exceed fifty weeks. Where benefits are paid or payable for injury to or loss of a particular member or organ under other provisions of this title, additional benefits must not be paid under this item, except that disfigurement also includes compensation for serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation. The weekly compensation payments referred to in this section all are subject to the same limitations as to maximum and minimum as set out in Section 42-9-10.

As you can see, there are a number of provisions in this Code section that interact with other parts of the law.  Even if you have a “simple” case, you should meet with an experienced workers’ compensation attorney and see what options you may have.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injuries, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, chemical and fire burns, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death.  We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

SC Workers’ Compensation – New Maximum Compensation Rate for 2012

Jan 1, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

Commission Approves 3% Increase on Maximum Compensation Rate

Each year, the maximum “compensation rate” is adjusted to reflect inflation and cost of living increases.  An injured worker’s particular compensation rate is determined by the year of injury.  Once set, it does not change.  Unfortunately, you do NOT get a “raise” when the rates change even though it costs more to pay your bills.  Oftentimes, the insurance carrier makes an initial estimate of the compensation rate.  And even more often, that initial estimate is deliberately low.  Once the employer completes a Form 20, an exact compensation rate is calculated and payments should be adjusted.

During their December 19, 2011 full Commission Business Meeting, the SC Workers’ Compensation Commission approved a 3% increase to the maximum compensation rate for 2012. The rate for 2011 is $704.92 and the new rate beginning January 1 will be $725.47 which is a $20.55 increase over the previous year. Accidents that occur on or after January 1, 2012 will use the new maximum weekly compensation rate.