FREQUENTLY ASKED QUESTIONS: SOUTH CAROLINA WORKERS’ COMP

Below are some of the questions that we as South Carolina workers’ compensation lawyers get asked most often:

Will I lose my job if I hire an attorney?
What if I have a pre-existing injury or medical condition?
Can my claim be denied based on a drug test?
Can my medical records be given to my employer and insurance carrier without my permission?
Do I need to discuss my case with a lawyer?
What will it cost me to consult an attorney?
How should I choose a workers’ compensation lawyer out of so many?

Will I lose my job if I hire an attorney?

These are still very difficult economic times. If you do get hurt at work, you’re understandably reluctant to hire a lawyer or pursue a claim. No one wants to risk a good job, especially these days. Unfortunately, you’re in a real trap.  If you don’t report an accident and later learn you have something more serious than first thought, you may lose the right to pursue a claim later. Here’s the reality. If your employer typically fires someone when they get hurt, it is even more important that you consult an attorney as soon as possible. We can help you, but you have to get us involved early.

What if I have a pre-existing injury or medical condition?

It doesn’t matter. Whether it is a “new injury” or an “aggravation of a prior injury or condition,” the claim is still compensable. The relevant statute, SC Code of Laws Section 42-9-35, provides:

 “(A) The employee shall establish by a preponderance of the evidence, including medical evidence, that: (1) the subsequent injury aggravated the preexisting condition or permanent physical impairment; or (2) the preexisting condition or the permanent physical impairment aggravates the subsequent injury…(D) The provisions of this section apply whether or not the employer knows of the preexisting permanent disability.” The last part of this statute complies with the federal law Americans with Disabilities Act (ADA) that prohibits employers from denying employment based on previous injuries or disabilities. Employers are not allowed to ask about prior injuries or claims. Only after you are offered a job can they require a pre-employment physical examination. At that point, you should be absolutely honest about any conditions or surgeries.

Can my claim be denied based on a drug test?

It depends. Obviously, if you come to work impaired and are injured due to the impairment, no benefits will be awarded. However, the accident must be directly caused by the impairment. Even if you are “intoxicated” and something hits or falls on you, that claim would still be compensable under the law. Additionally, a “positive” drug test is not always fatal to a claim. As we all know, these urine tests are not always reliable, and you may need to get your own independent testing to refute such finding. The relevant statute, SC Code of Laws Section 42-9-60, provides as follows:
“no compensation shall be payable if the injury or death was occasioned by the intoxication of the employee…in the event that any person claims that the provisions of this section are applicable in any case, the burden of proof shall be upon such person.”

Can my medical records be given to my employer and insurance carrier without my permission?

Yes. But arguably not all of your past medical records is subject to disclosure. By seeking benefits, you give up your right to privacy for treatment relating to the claim. This area gets a little confusing given all of the HIPPA regulations. Regardless of the right, employers and adjusters still need to be very mindful of how such private, personal information is disseminated to others. The relevant statute, SC Code of Laws Section 42-15-95,  provides:

“(A) any employee who seeks treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title shall be considered to have given his consent for the release of medical records relating to such examination or treatment under any applicable law or regulation. All information compiled by a health care facility, as defined in Section 44-7-130, or a health care provider licensed pursuant to Title 40 pertaining directly to a workers’ compensation claim must be provided to the insurance carrier, the employer, the employee, their respective attorneys or certified rehabilitation professionals, or the South Carolina Workers’ Compensation Commission, within fourteen (14) days after receipt of written request.

Do I need to discuss my case with a lawyer?

It depends. If your injury is not serious or you expect to heal completely, then you probably do not need an attorney. Hopefully, this eBook has answered a lot of your questions. However, if you have something serious, such as surgery or prosthetic devices implanted, then you absolutely should consult with an experienced workers’ compensation attorney to thoroughly review your particular circumstances. This information is very basic. The actual laws are much more complex and confusing. We get involved in our client’s cases as soon as possible in order to guide treatment and anticipate problems. Please don’t make the mistake of calling us after it is too late.

What will it cost me to consult an attorney?

The consultation is free if you call our firm. We will be happy to sit down with you and talk about your case and your options. If you decide to hire us, we charge a “contingency fee” which means we only get paid if we are successful. You don’t have to pay any money out of pocket and owe us nothing if we do not win your case. If we do prevail, attorney fees are up to one-third (1/3) and must be approved by the Commission.  In certain cases, we charge a reduced fee of twenty-five (25) percent. The only costs you would owe is for medical records, deposition charges, and filing fees.

How should I choose a workers’ compensation lawyer out of so many?
Many people just ask a friend, family member, or even a coworker. That’s always a good start, but we encourage you to do your own research. This first decision is critical to your case. We respectfully suggest you carefully compare the actual credentials and real experience in handling workers’ compensation cases. Interview several attorneys and ask how many cases they have tried vs. settled. Ask how long and how often they handle workers’ compensation files. Is this a regular part of their practice or do they just take a few each year. Then, after you’re satisfied all of your questions and concerns have been answered, hire the best, most qualified lawyer in whom you have the most confidence. After you have had an opportunity to review our credentials, please call us for a personal interview. We would like you to consider hiring our firm and let us help you and your family get through one of the most difficult times in your life. We hope to hear from you. You can reach me directly at 803-554-4157 or send me an email at .

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