Sep 12, 2012 | Brain Injury/Head Trauma, Uncategorized, Workers' Compensation
Columbia Police made an arrest in a collision between a vehicle and a pedestrian that took pace near the intersection of Assembly and Greene Streets around 5 a.m. Wednesday.
23-year-old Natalie Jacobson was charged with felony DUI for driving into a construction zone and striking a victim construction worker.
The construction worker was a member of the Lovelace Commercial Construction crew that was doing road work at the scene at the time of the incident. According to the report, the victim was doing traffic control. Police say that the injured crew member is still in the hospital with a head injury.
It takes just an instant of inattention on the road to hit a construction worker doing his or her job. The traffic laws are strict in this area in an attempt to try and prevent what happened here. Please be aware and pay extra attention in road construction areas. The difference could literally save a person’s life.
South Carolina Workers’ Compensation Attorneys
If someone you love is seriously injured while at work on the job, call the experienced workers’ compensation attorneys of Reeves, Aiken & Hightower LLP. Our seasoned litigators have over 75 years combined trial experience. Our team of personal injury attorneys include former insurance defense lawyers, a former Registered Nurse (RN), and former criminal prosecutor. We can investigate all aspects of a serious accident and hold all parties accountable for your loss. Call us today and speak directly with one of our lawyers at 803-548-4444 or 877-374-5999 toll free. We have offices throughout South Carolina and proudly represent injured workers and their families in York County, including Rock Hill, Fort Mill, Indian Land, Tega Cay, Lake Wylie and Clover. We would be honored to have an opportunity to help you and your family get through this most difficult time in your lives.
Aug 25, 2012 | Uncategorized, Workers' Compensation
In order to win a denied workers’ compensation claim, the claimant must show the alleged injury arose out of and in course and scope of employment. This burden of proof usually requires the submission of medical evidence from a doctor or other health care provider relating the injury to the work accident. South Carolina law [Section 42-1-160(g)] defines “medical evidence” as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider.” For years, the use of a “check the box” questionnaire has been used by workers’ compensation claimants’ attorneys. The letter format is much less expensive than scheduling a doctor’s deposition, and treating physicians have become used to receiving these requests for virtually all of their workers’ compensation patients. However, as claims are increasingly being defended more aggressively by insurance companies, many are now starting to question their sufficiency as “medical evidence.”
Questionnaires are customarily used in claims where there is a dispute as to the causal relationship of an alleged injured body part; where there is a question of whether the claimant has reached maximum medical improvement; whether additional medical treatment is necessary; and/or where a prior medical opinion has been changed or even reversed. The questionnaires themselves typically consist of three or four short statements regarding the issue(s) in dispute and then provide “boxes” the option to check “yes” (to agree) or “no” (t0 disagree) with the question posed. However, the questionnaires almost never seek further elaboration from the health care provider of how the opinion was reached or what objective medical evidence was used to base the opinion offered. Hence, the dilemma. While the claimant has technically complied with the statute and produced an opinion from a health care provider, stated to a reasonable degree of medical certainty. However, there is no real foundation offered for a hearing Commissioner to consider the sufficiency of the opinion.
To date, the Commission has not issued any regulation nor given guidance on the use of these medical questionnaires. For now, the questionnaires remain admissible as “medical evidence” at a hearing. But, it appears that the sufficiency and probative value of “check the box” questionnaires will be the subject of defense challenge in the future. Better make sure your lawyer’s questionnaire is clear and shows a basis for the opinion being offered.
Robert J. Reeves of Reeves, Aiken & Hightower LLP has practiced workers’ compensation law for over 23 years. His first seven (7) years was as an insurance defense attorney. He has proudly represented injured workers and their families in York County since 1996. Prior to becoming a lawyer, he was a Registered Nurse (RN). Given his insurance defense and nursing background, Mr. Reeves understands and has successfully prosecuted all types of complex, serious injury claims. He stands ready to fight for you and your family during this difficult and scary time in your life. Call him directly today on his mobile phone 704.351.7979 for a private consultation about your particular circumstances.
Aug 9, 2012 | Uncategorized, Workers' Compensation
Workers’ compensation appeals are hard to win. They’re that way by design. As a matter of policy, courts and the legislature make sure that administrative decisions are generally left to administrative courts. Workers’ compensation is generally left to the Workers’ Compensation Commission because that is where it is supposed to be by law. The idea is that the Workers’ Compensation system should be as streamlined and as cheap and easy to administer as possible. So, the legislature and courts want to keep workers’ compensation cases out of the normal law courts, and they chiefly do that by making appeals hard to win and simplifying procedure, e.g. if there is any evidence to support a workers’ compensation commission decision, the decision will be upheld on appeal, and the rules of evidence simply do not apply.
Watson v. Xtra Mile Driver Training
This pattern is exemplified in Watson v. Xtra Mile Driver Training. In that appeal from an Appellate Panel of the Workers’ Compensation Commission, Watson made three arguments, all of which the majority of the court rejected and one of which was accepted by the dissent.
- That evidence of a computer report contradicted by more reliable evidence on the record should not have been admitted.
- That the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled.
- That the Workers’ Compensation Commission erred in crediting temporary total disability (TTD) payments made after maximum medical improvement (MMI) against the amount payable to Employee for permanent partial disability.
The most important argument here, and the only one seriously contestable was whether the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled. The dissent agreed with Employee on that point. The rules of evidence simply do not apply before the Workers’ Compensation Commission, and it is a settled matter that after maximum medical improvement (MMI), employees are no longer entitled to temporary total disability payments.
Permanent and Total Disability
The standard of review in determining whether the the Workers’ Compensation Commission erred in determining that the employee was not permanently and totally disabled was the “substantial evidence” standard. The commonly cited gloss on this standard is:
“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 conclusions the [Appellate Panel] reached in order to justify its actions.”
Broughton v. S. of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct. App. 1999). In this case, there was pretty strong evidence of permanent and total disability, but the majority declines to overturn the Workers’ Compensation Commission under the substantial evidence standard. The key facts are:
- “job factor restrictions included:
(1) no continuous standing for more than twelve minutes;
(2) no continuous sitting for more than three minutes;
(3) no continuous walking for more than 0.1 miles;
(4) no pushing more than twenty pounds;
(5) no pulling more than twenty pounds;
(6) no stopping; and
(7) no crawling on her hands and feet.”
- “The Dictionary of Occupational Titles places Ms. Watson’s occupation as a Director of Placement in the sedentary strength category. Therefore, Ms. Watson meets these strength requirements and may return to work as Director of Placement.”
- Employee testified that she could drive sitting down a solid 35-45 minutes.
- A vocational analyst testified that the results of the FCE were inconsistent and that Employee was permanently and totally disabled.
Is there substantial evidence here to support the finding that Employee is not permanently and totally disabled?
A further wrinkle is that Permanent and Total Disability can be found under either of two statutes: 42-9-10 and 42-9-30(21).
42-9-10 provides permanent and total disability “when the incapacity for work resulting from an injury is total,” i.e. when the ability to earn a living is “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.”
42-9-30(21) provides permanent and total disability for “a claimant with 50% or more loss of use of the back” without proof of loss of earning capacity.
The dissent would have found that the Workers’ Compensation Commission was in error to have found no permanent and total disability in both sections.
The SC Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
If you or someone you know has been injured or killed on the job, whether in Columbia or elsewhere in South Carolina, you need the help of a serious workers’ compensation attorney like those at Reeves, Aiken & Hightower. Call us at 877-374-5999, or contact us at this link, to schedule a free, private consultation. We can help you evaluate your claim and get you the recovery you deserve.
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Jun 25, 2012 | Uncategorized, Workers' Compensation
The South Carolina Supreme Court sent a signal on June 13 to the Court of Appeals concerning their handling of Worker’s Compensation appeals.
In Carolinas Recycling v. SC Second Injury fund, the Supreme court basically restated the existing law of Workers Comp appeals, that decisions would be reversed on appeal only if they were “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record” (Substantial Evidence). What does that mean? Is means that although the court “may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact,” it may reverse if the decision is against the Substantial Evidence, which the court has taken to mean evidence in view of which reasonable minds could not differ.
What does this have to do with Workers’ Comp? Workers’ compensation is an administrative law system, administered relatively separately. Courts try to treat workers’ compensation with a hands off approach to keep the comp cases out of the ordinary courts to keep the docket down, and I suppose to further the ends of the legislature that established the administrative system.
In seemingly telling the Court of Appeals to a take an ever so harder look at Worker’s Comp claims appeals, the Supreme Court is either just telling the Court of Appeals to take a harder look, or more worryingly telling the Workers Compensation Commission to squeeze injured employees tighter.
Don’t Let the Workers Compensation System Get the Best of You
The SC workers comp attorneys at Reeves, Aiken, & Hightower know the South Carolina worker’s compensation system and are ready to get you the recovery you deserve. Peruse our website, examine our credentials to any other firm. Then call us at 877-374-5999 or contact us at this link for a private consultation.
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Jun 21, 2012 | Uncategorized, Workers' Compensation
The Department of Labor’s Occupational Safety and Health Administration (OSHA) has found that Norfolk Southern Railway violated the whistleblower protection provisions of the Federal Railroad Safety Act in firing injured workers.
One part of the investigation centered around the OSHA office in Columbia, SC and an accident occurring in Greenville, SC. Back in 2009, a worker in Greenville was hit by the company’s gang truck. The railroad fired the injured worker for improper performance of duties, while letting the other individuals involved in the incident continue work. OSHA found this to be disparate treatment, and thus, the wrongdoing on the part of Norfolk Southern.
For this incident, OSHA has ordered the railroad to pay punitive damages of $200,000 as well as compensatory damages of $110,852 and attorney’s fees of $14,325.
SC Workers Comp Lawyer
The SC workers comp attorneys at Reeves, Aiken, & Hightower know the South Carolina worker’s compensation system and are ready to get you the recovery you deserve. Peruse our website. Examine our credentials. Then call us at 877-374-5999 or contact us at this link for a private consultation.
