Worker’s Compensation Laws provide a legal framework for workers to be compensated for injuries sustained in the course of their employment. The administration of the claims process and decision making regarding compensability rest with the South Carolina Worker’s Compensation Commission who administers the state’s worker’s compensation system. S.C.Code § 42-3-10.
The Worker’s Compensation Act requires every South Carolina employer, with certain exceptions, to carry worker’s compensation insurance. However, according to S.C.Code § 42-1-360, certain classes of employees and employers are not required to be covered by worker’s compensation insurance. These exceptions include:
- Employers with less than four regular full time or part time employees;
- Agricultural employees;
- Persons engaged in selling agricultural products;
- Casual employees;
- State and county fair associations;
- Federal employees;
- Railroads and railway express companies, and
- Employers who have a total annual payroll of less than $3,000, regardless of the number of workers employed during that period.
In addition to those classifications listed above, owner-operator drivers S.C.Code § 42-1-360 (9) and certain commission-paid real estate agents S.C.Code § 42-1-360 (7) are also exempt from worker’s compensation coverage.
Employers are not required to provide worker’s compensation coverage for casual employees. Casual employees are defined in S.C.Code Ann. § 42-1-130 as “a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer.” Put simply, employment is casual when it is not permanent or when work is not assigned periodically, even if the employment is brief or isolated. “Where employment cannot be characterized as permanent or periodically regular, but occurs by chance, or with the intention and understanding on the part of both employer and employee that it shall not be continuous, it is casual. Smith v. Coastal Tire and Auto Service 263 S.C. 77, 81, 207 S.E.2d 810, 812 (1974). “Sporadic, irregular work must have some reasonably direct relationship to performance of work by the employer” otherwise it is considered casual labor. MacMullen v. South Carolina Electric & Gas Co., 312 F. (2d) 662 (4th Cir.1963).
Independent contractors in South Carolina do not have a right to workers’ compensation benefits. Wilkinson v. Palmetto State Transp. Co., 676 S.E.2d 700 (S.C. 2009).
South Carolina courts determine whether an individual is an independent contractor using the “right to control” test Anderson v. West, 241 S.E.2d 551 (S.C. 1978)). This test does not focus on whether an employer actually exercises control over the work of the individuals, but whether “there exists the right and authority to control and direct the particular work or undertaking as to the manner or means of its accomplishment” Anderson v. West, 241 S.E.2d 551 (S.C. 1978))
To determine whether the right to control exists, the court looks at four factors:
- Direct evidence of the right to, or exercise of, control.
- The method of payment.
- The furnishing of equipment.
- The right to fire.
Porter v. Labor Depot, 643 S.E.2d 96 (S.C. Ct. App. 2007).
However, the South Carolina Worker’s Compensation Commission is not bound to recognize agreements, which designate a worker as an independent contractor who would otherwise be considered an employee to avoid compliance with the Workers’ Compensation Act. Kilgore Group, Inc. v. SC EMP. SEC. COM’N, 437 S.E.2d 48, 313 S.C. 65 (1993).
Who May Claim Worker’s Compensation Benefits
Unlike a personal injury claim, which focuses on whether an individual was injured because of a breach of the duty of care, worker’s compensation law resolves the question of liability through the concept of compensability. Compensability does not consider the employer’s conduct as determinative of compensability rather it focuses on whether an employee suffered an injury or occupational disease and whether that injury or occupational disease arose out of the course of employment.
A compensable injury under the Worker’s Compensation Act is defined by S.C.Code § 42-1-160which defines it as an “injury by accident arising out of and in the course of employment.” West v. Alliance Capital, 628 S.E.2d 279, 368 S.C. 246 (Ct. App. 2006).
“Injury by Accident”
S.C.Code § 42-1-160 defines an injury by accident as a condition that is unexpected in the context of work duties, as such the worker would not view the resulting condition as a normal consequence of work. South Carolina Courts affirm this definition stating “An injury is accidental in that it is unforeseen and unexpected” or that the injury was unexpected and resulted from the normal performance of his duties. Ellis v. Spartan Mills, 277 S.E.2d 590, 276 S.C. 216 (1981). Further, a, fall or other fortuitous event or accident in the cause of the injury is required” is not required rather “the unexpected result or industrial injury is itself considered the compensable accident.” Stokes v. First National Bank, 410 S.E.2d 248, 306 S.C. 46 (1991).
“Arising out of and in the course of employment”
“Arising out of”
A compensable injury by accident must arise out of and occur in the course of employment. The phrase “arising out of” in the Workers’ Compensation Act refers to the injury’s origin and cause. For an injury to “arise out of employment, the injury must be proximately caused by the employment.” Therefore the employee must be injured while fulfilling work-related duties or engaging in something incidental to those duties Ardis v. Combined Ins. Co., 669 S.E.2d 628, 380 S.C. 313 (Ct. App. 2008). Broughton v. South of the Border, 520 S.E.2d 634, 336 S.C. 488 (Ct. App. 1999).
“In the course of employment”
A compensable injury must also occur “in the course of the employment” which refers to the time, place, and circumstances under which the accident occurred. Owings v. Anderson County Sheriff’s Dep’t, 315 S.C. 297, 433 S.E.2d 869 (1993). Therefore, the injury must “occur within the period of employment at a place where the employee reasonably may be in the performance of his duties and while fulfilling those duties or engaged in something incidental thereto.” Broughton v. South of the Border, 520 S.E.2d 634, 336 S.C. 488 (Ct. App. 1999). Baggott v. Southern Music, Inc., 330 S.C. 1, 496 S.E.2d 852 (1998).
Certain occupational diseases are treated as compensable injuries. S.C.Code § 42-11-10 defines an occupational disease:
As a disease arising out of and in the course of employment that is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease is considered an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of continuous exposure to the normal working conditions of that particular trade, process, occupation, or employment.
An employee must establish that an occupational disease arose directly and naturally from exposure hazards peculiar to the particular employment. S.C.Code § 42-11-10
South Carolina Courts have held occupational diseases are compensable if the claimant is able to prove the following six elements in order to receive Workers’ Compensation benefits for having contracted an occupational disease:
- A disease;
- The disease must arise out of and in the course of the claimant’s employment;
- The disease must be due to hazards in excess of those hazards that are ordinarily incident to employment;
- The disease must be peculiar to the occupation in which the claimant was engaged;
- The hazard causing the disease must be one recognized as peculiar to a particular trade, process, occupation, or employment; and
- The disease must directly result from the claimant’s continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment.
Fox v. Newberry County Memorial Hosp., 319 S.C. 278, 281, 461 S.E.2d 392, 394 (1995).
S.C.Code § 42-11-10 further states that an occupational disease shall not be compensable unless employee suffers a disability caused by the occupational disease.
Repetitive Trauma Injuries
Generally, a repetitive trauma injury, such as carpal tunnel syndrome, is compensable under the Workers’ Compensation Act. South Carolina Courts have defined a repetitive trauma injury as being tantamount to an injury by accident in that it is an unforeseen injury caused by trauma. Pee v. AVM, Inc., 352 S.C. 167, 573 S.E.2d 785 (2002).
S.C.Code § 42-1-172 (B) requires that the commissioner make a specific finding as to the compensability of a repetitive trauma injury based on evidence of a causal connection that is established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury.
Back injuries caused by repetitive trauma are compensable when supported by substantial evidence linking to the claimant’s employment. White v. Medical University of South Carolina, 355 S.C. 560, 586 S.E.2d 157 (Ct. App. 2003).
S.C.Code § 42-9-40 outlines the requirements for a compensable hernia case. The elements are:
(1) there was an injury resulting in hernia or rupture;
(2) the hernia or rupture appeared suddenly;
(3) it was accompanied by pain;
(4) the hernia or rupture immediately followed an accident; and
(5) the hernia or rupture did not exist prior to the accident for which compensation is claimed.
Jordan v. Kelly Co., 381 S.C. 483, 487, 674 S.E.2d 166, 169 (2009)
Types of Worker’s Compensation Benefits
The South Carolina Workers’ Compensation system pays benefits to employees who have suffered wage loss because of a workplace injury. Benefits can be classified into the following five areas of cash benefits and wage replacement benefits based on the severity of injury and subsequent level of disability.
Temporary Total Disability
An employee is eligible for temporary total disability when he is unable to perform suitable employment on one or more calendar days following the day of injury.
An employee who due to a compensable injury remains unable to earn wages after the first seven days of disability, is entitled to weekly benefits equal to two-thirds of his average weekly wage up to the maximum compensation rate. If the disability exceeds 14 days, the employee is entitled to receive compensation for the first seven days of disability. S.C.Code § 42-9-200. Temporary total disability benefits can continue for up to 500 weeks. S.C.Code § 42-9-10
Benefits terminate when the employee returns to work or when the employer provides credible evidence to the South Carolina Worker’s Compensation Commission that the employee is no longer disabled.
Temporary Partial Disability
An employee is eligible for temporary partial disability when he is able to work but at a lesser rate of earnings than that of his average weekly wage of his occupation at the time of the accident. Temporary partial disability benefits provide compensation equal to two-thirds of the difference between the post-injury and pre-injury average weekly wages, so long as the amount does not exceed the statutory maximum weekly benefit. Temporary partial disability benefits may not continue beyond 340 weeks, and any number of weeks wherein temporary total disability benefits were paid will be deducted from the 340-week maximum. S.C.Code § 42-9-20.
Permanent Partial Disability
An employee who at the end of the healing period, also known as maximum medical improvement, is left with complete loss or loss of use of any member or part of the body may receive permanent total disability benefits notwithstanding his ability to earn wages. The rate of compensation is determined from the use of medical evidence which provides an opinion as to the percentage disability rating (loss of function) for the affected body part with 100% representing a total loss of function and 0% representing full functioning. The percentage disability rating is then compared to one of the body parts listed in the schedule of injuries contained in S.C.Code § 42-9-30. Under the schedule of injuries, each body part is assigned a specific number of weeks of benefits.
An employee is entitled to a second opinion on a permanent partial disability rating upon approval by the South Carolina Worker’s Compensation Commission with a doctor of the employee’s choice at the employer’s expense.
Permanent total disability benefits are available to an employee who suffers a complete and permanent total incapacity from following any gainful occupation. S.C.Code § 42-1-120 defines incapacity as an inability “to earn the wages which the employee was receiving at the time of injury in the same or other employment.” South Carolina Courts treat total disability as an “inability to perform services other than those that are ‘so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” However, this does not require “not complete physical helplessness.” Coleman v. Ouality Concrete Products, 245 S.C. 625, 142 S.E.2d 43,44 (1965). Koon v. Spartan Mills, 332 S.E.2d 544, 286 S.C. 190 (Ct. App. 1985).
S.C.Code § 42-9-10 also provides that “The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes, or any two thereof, constitutes total and permanent disability.”
S.C.Code § 42-9-290 provides death benefits shall be paid to “the dependents of the employee wholly dependent upon his earnings for support at the time of the accident, a weekly payment equal to sixty-six and two-thirds percent of his average weekly wages,” for a period of five hundred weeks from the date of the injury, and burial expenses up to but not exceeding twenty-five hundred dollars.
S.C.Code § 42-9-290 further provides “If the employee leaves dependents, only partly dependent upon his earnings for support at the time of the injury, the weekly compensation to be paid must equal the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependence bears to the annual earnings of the deceased at the time of his injury.”
Injured employees subject to certain condition are entitled to medical treatment for compensable injuries. S.C.Code § 42-15-60 provides that “medical, surgical, hospital and other treatment, including reasonably required supplies, shall be furnished by the employer for a period not exceeding ten weeks from the date of injury to effect a cure or give relief, and for such additional time as will tend to lessen the period of disability.” The South Carolina Worker’s Compensation Commission may in its discretion order further necessary treatment.
For injuries resulting in total and permanent disability the injured employee is entitled to all reasonable and necessary medical care causally related to the original injury for life. Munn v. Nucor Steel, 336 S.C. 28,518 S.E.2d 289 (S.C. App. 1999)
The Claims ProcessReporting an Injury and Filing a Claim
S.C.Code § 42-15-20 requires that every injured employee or his representative give the employer notice of a job-related accident on South Carolina Worker’s Compensation Form 50 within ninety days after its occurrence. Further, an injured employee has two years to file a claim with the South Carolina Worker’s Compensation Commission after an accident. The two-year statute of limitations begins running on the date of discovery of the injury. S.C.Code § 42-15-20 states, “The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident, or if death resulted from the accident, within two years of the date of death.”
For occupational disease claims, the two-year period does not begin to run until the injured employee has been definitively diagnosed as having an occupational disease has been notified of the diagnosis. Bailey v. Covil Corp., 354 S.E.2d 35, 291 S.C. 417 (1987).
For repetitive trauma, S.C.Code § 42-15-20 states, “In the case of repetitive trauma, notice must be given by the employee within ninety days of the date the employee discovered, or could have discovered by exercising reasonable diligence, that his condition is compensable.”
Employer or Insurer’s Refusal to Acknowledge Claim
An employee may file an application for a hearing before a commissioner by submitting Form 50 or Form 52 to the South Carolina Worker’s Compensation Commission if an employer does not report and accident, if the employer does not report the accident, if the employer denies that the injury was sustained in the course and scope of employment, or if the employee believes that he or she did not receive all of the available benefits.
An employee may also file for a hearing if an employer and the injured employee fail to reach an agreement with regard to compensation within 14 days after the employer has knowledge or notice of the accident, or in the event payment is made, if there is a subsequent disagreement over the continuance of any weekly payment.
An informal conference involves the injured party or their counsel to meet with a representative from the employer’s insurance company, a Commissioner or Claims Mediator to discuss the settlement of your workers’ compensation claim. The Commissioner, or more likely a Claims Mediator, will review the doctor’s report of your treatment. At this time, the Claims Mediator will recommend a settlement amount. If ther parties are unwilling to accept the proposed settlement, the case will proceed to a formal hearing.
If the employer and employee are unable to agree on the issues regarding compensability S.C.Code § 42-17-20 authorizes the South Carolina Worker’s Compensation Commission to conduct a formal evidentiary hearing on any contested issues. The hearing shall be held in the city or county in which the injury occurred, unless otherwise agreed to by the parties and authorized by the commission.
Full Commission Review
According to S.C.Code § 42-17-50 “If an application for review is made to the commission within fourteen days from the date when notice of the award shall have been given, the commission shall review the award and, if good grounds be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award.”
Appealing North Carolina Industrial Commission Decisions
Either party may appeal this decision to the South Carolina Court of Appeals as to the application of the law to the facts of the case pursuant to According to S.C.Code § 42-17-60.