The article below is a summary and commentary written by Stanford E. Lacy of Collins & Lacy, P.C. in Columbia, South Carolina. It is located on his firm’s website and blogosphere. I am proud to be counted as one of Stan’s biggest fans and routinely follow his sage postings. I will always appreciate Stan for giving me my first job as an attorney and training me in workers’ compensation law. Although written from a defensive perspective, this recent case confirms that claimant’s attorneys must also investigate claims early and secure evidence to prove a case is compensable. He can also hold employers and their insurance carriers accountable before the Commission if they improperly stop paying weekly benefits after 150 days from the date of accident. Because the law only provides that an injured worker can receive only 2/3 of their average weekly wage, every check matters. No one pays 1/3 in taxes, at least not yet. As a result, you find yourself “getting behind” each week. Having a carrier abruptly stop paying without following the law can literally cost you and your family everything. Better make sure your attorney knows about this case and what to do to protect you. Compare our attorneys’ credentials to any other law firm.
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 injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, 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
Section 42-9-260 Does Not Prohibit Denying Compensability after 150 Days; But the Doctrines of Laches and Estoppel Can
The issue was addressed by the Court of Appeals in the case of Jervey v. Martint Enviromental, Inc., Opinion No. 4930 (filed January 23, 2012).In 1996, South Carolina’s workers’ compensation system changed radically. Prior to June 18, 1996, our system required the parties enter into a Form 15 in which the carrier agreed to pay, and the claimant agreed to accept TTD. It was a contract. Once executed, the carrier was stuck. If the employer found out later the claim was not compensable, the issue was deemed waived. The only escape was to prove the employee fraudulently induced the carrier into the agreement. The result was a system in which carriers were loath to accept a claim except in the most obvious circumstances. Compensable claims had to wait months to be heard by a commissioner while injured workers languished waiting for benefits. A different system was needed.In 1996, the old contract-based system was replaced by the present notice-based system. Now, the carrier can initiate benefits and simply notify the South Carolina Workers’ Compensation Commission that benefits have commenced. There is no need for signatures because there is no contract. The carrier now has 150 days from the date the employer is notified of the accident to investigate the claim and unilaterally suspend benefits if the carrier determines the claim is not compensable. Read all about it in South Carolina Code of Law Section 42-9-260.After the 150 day period, the Commission’s regulations control suspension and termination of benefits, which simply return us to the old system but without the contract aspect. They require compensation continue until the claimant signs a Form 17 after working 14 calendar days or the carrier files a Form 21 and obtains an order from the Commission. This is the same procedure used prior to 1996 whenever the carrier wanted to suspend or terminate benefits.The question recently arose whether §42-9-260 acted as a statute of limitations to deny compensability. If the statute gives the carrier 150 days to unilaterally suspend compensation if the claim is deemed not compensable, is the right to raise compensability as a defense barred after 150 days?The issue was addressed by the Court of Appeals in the case of Jervey v. Martint Enviromental, Inc., Opinion No. 4930 (filed January 23, 2012). In Jervey, Claimant suffered sulfuric acid burns to neck, face and back. Martint immediately initiated TTD and provided medical treatment. Fifteen months later, Jervey filed a Form 50 seeking treatment for a cervical disc problem and asking the Commission to designate Dr. Donald Johnson as the authorized treating physician. Martint filed a Form 51 denying the claim was compensable. Jervey objected and argued the defense was barred by §42-9-260. Additionally, Jervey argued Martint should be barred from raising the defense by the doctrines of laches and estoppel. I’ll spare you the back and forth that went on from the hearing commissioner to the Court of Appeals. Suffice it to say, the Court held that the plain reading of the statue did not create a statute of limitations, so the issue of compensability is not barred by the statue. However, the employer/carrier can, by their actions, be estopped from denying compensability. The doctrine laches likewise can be applied.The moral is this. While the legislature did not create a statute of limitations for raising a defense, the Commission and the Courts can utilize equitable principles to reach what they deem to be a just result.
 §42-9-260 (F) reads in its entirety: After the one-hundred-fifty-day period has expired, the commission shall provide by regulation the method and procedure by which benefits may be suspended or terminated for any cause, but the regulation must provide for an evidentiary hearing and commission approval prior to termination or suspension unless such prior hearing is expressly waived in writing by the recipient or the circumstances identified in Section 42-9-260(B)(1) or (B)(2) are present. Further, the commission may not entertain any application to terminate or suspend benefits unless and until the employer or carrier is current with all payments due.