Andrew Fajardo, Esq. Chappell, Smith & Arden

Sterling Educational Services, Inc.

General Principles of Workers Compensation

January 27, 2016

OverviewA. General Overview of Workers CompensationB. Elements of a Workers Compensation ClaimC. Practice Tips, Definitions and Concepts

1. Disabilities: Temporary and Permanent2. Vocational Rehabilitation Benefits3. Psychological Injuries4. Scheduled Injuries and Loss of Use Valuation5. Average Weekly Wage and Compensation Rate6. Medical Care and Choice of Health Care Provider7. Litigation Process and Procedures

A. Discussion of Risk in Workers Compensation

• History of South Carolina Workers Compensation Act

• Three Main Types of Risk in Workers Compensation from an Employer’s Perspective1. Medical Risk2. Indemnity Risk3. General Insurance Risk

B. Elements of a Workers Compensation Case

• Employee/Employer Relationship• Coverage under the SC Workers Compensation

Act• Compensable Injury

Relationship between Employee and Employer

• Employee is defined under §42-1-130– Excludes independent contractors, casual employees,

volunteers and certain others. • Employer is defined under §42-1-140– Can be just about any entity, including the State, political

subdivisions, corporations, sole proprietorships, etc. • Employment is defined under §42-1-150– Generally any type of work for compensation – Adds “in which four or more employees a re regularly

employed in the same business or establishment.”

Coverage under South Carolina Workers Compensation Act

• Every South Carolina employer and employee, with certain exceptions, is presumed covered by the State’s Workers Compensation Act. Employers required to carry workers comp

insurance, unless exempt. Requires 4 or more regular “employees” to be

subject to Act.

SC Uninsured Employers Fund

Compensable Injury

• “Injury” can include many types of conditions– Can be acute injury, due to repetitive trauma,

psychological, or occupational disease• Primarily seen as an Injury by Accident– Defined under §42-1-160– Two Pronged Test• Arises Out of Employment• Occurs in Course and Scope of Employment

Two Pronged Test: “Arising Out Of”

• Accident must “arise out of “ the employment– Refers to origin and cause of accident– Test of proximate causation

• Injury arises out of employment if it is proximately caused by the employment.

• Must be apparent to the rational mind, considering all the circumstances, that a causal relationship exists between the conditions under which the work is performed and the resulting injury.

• Special requirements for Occupational Diseases and Repetitive Trauma

Two Pronged Test:“Occurs in Course and Scope”

• Accident must occur in course and scope of employment– Refers to the time, place and circumstances under

which the accident occurs. – Generally, will be compensable if it happens at

work in furtherance of employer’s interests. – However, there are always exceptions and special

circumstances

C. Definitions, Concepts and Practice Tips

1. Disabilities: Temporary and Permanent2. Vocational Rehabilitation benefits3. Psychological Injuries4. Scheduled Injuries and Loss of Use Valuation5. Average Weekly Wage and Compensation Rate6. Medical Care and Choice of Health Care Provider7. Litigation process and procedures

1. Disability

• Defined under §42-1-120– “incapacity because of injury to earn the wages

which the employee was receiving at the time of injury in the same or any other employment.”

• 500 week limit for recovery• Exceptions: Lifetime weekly benefits for

paraplegia, quadraplegia, or severe physical brain damage

Temporary Disability

• Occurs when an employee suffers a loss in wages

• Types of Temporary Disability– Temporary Total Disability• Complete inability to earn wages

– Temporary Partial Disability• Inability to earn the same wages as prior to the injury• Likely due to reduction in hours, change of position,

sales, etc.

Permanent Disability

• Occurs when the incapacity to earn similar wages becomes permanent.

• Types of Permanent Disability1. Permanent and Total Disability• §42-9-10

2. Permanent Partial Disability / Wage Loss Disability• §42-9-20

2. Vocational Rehabilitation Benefits

• No specific provision requiring employers to provide vocational rehabilitation services

• South Carolina Vocational Rehabilitation Department

• Distinguished from “occupational therapy”• Role of Vocational Experts– Used as evidence of permanent disability

3. Mental Injuries

• Refers to psychological or psychiatric conditions proximately caused by employment

• Two types of mental injuries1. Physical – Mental injuries2. Mental – Mental injuries• Must be caused by “unusual or extraordinary”

conditions of employment• Many factors involved with these types of claims,

including type of employment, reasonable expectations, etc.

4. Scheduled Injuries and Loss of Use Valuations

• Permanent Impairment Ratings (PIR) and the AMA Guides • Limit on recovery to scheduled members, unless

exceptions apply. • Almost every body part, organ, or other system is

addressed in the Act and assigned a value in terms of “weeks.” §42-9-30

Covers most commonly injured body parts Reg. 67-1101

Covers most everything else

Valuation of PIR for Indemnity

• Examples are easiest!• Employee has a compensable right knee injury, undergoes surgery and

returns to work. After reaching maximum medical improvement, he is assigned a 10% permanent impairment rating.

• Under §42-9-30 (16), the right lower extremity is worth a maximum of 195 weeks of compensation.

• Do the math• 10% of 195 weeks = 19.5 weeks• 19.5 weeks x Compensation Rate = Base Value

• Permanent Impairment ≠ Loss of Use • “Loss of Use” incorporates a number of factors, including work

restrictions, ongoing medical care, and effects on daily living. • Decided by Commissioner

5. Average Weekly Wage and Compensation Rate

• AWW and C/R• Gross earnings (pre-tax) of Claimant in the

employment in which he was working at the time of injury.

• Can also include wages from other concurrent employers at the time of injury.

• Maximum C/R per year, regardless of actual income. Max for 2016 is $784.03.

• Critical in determining indemnity value of claims

Calculation of AWW/CR

• AWW – Four Methods1. Employee’s income in the four quarters preceding, but not

including, the date of injury and divided by 52 weeks2. Employee’s income divided by the total number of weeks the

employee has worked (if less than a year). 3. Income of similarly situated employee4. Other methods as required in exceptional cases, so as to be most

fair to the employee.

• Compensation Rate • 66 and 2/3rds percent of the AWW (66%) • Maximum C/R per year

6. Medical Care and Choice of Health Care Provider

• Role of Employer/Carrier• Pay for all medical expenses that are reasonably necessary to

effect a cure or give relief for the employee’s compensable injuries

• Retain right to control medical providers, within reason• Addressed in §42-15-60.

• Role of Employee• Must accept and undergo medical treatment offered• If refused without reasonable excuse, employee may lose

right to pursue additional benefits.• Addressed in §42-15-80

7. Litigation Process and Procedures

• Litigation process is primarily driven by Forms– All Forms are available on SCWCC website!– Most Forms are self-explanatory and are designed

to allow injured workers to complete on their own.

Uncontested Cases• Notice given accident accepted by Employer/Carrier treatment

provided MMI reached • Temporary Benefits

– Prior to 150 days, TTD checks can be cut off without court order– After 150 days, TTD checks can only be cut off by agreement or court order

• Permanent Benefits– Form 14B – Determined by either settlement or Commissioner

• Resolution of Claim– Order of Commission – Settlements: Form 16A vs. Clincher – Subsequent Change of Condition

Contested Cases

• Form 50 – Employee’s Request for Hearing• Form 51 – Employer’s Response • Form 21 – Employer’s Request for Hearing• Form 22 – Employee’s Response• Form 58 – Pre-Hearing Brief and Evidence• Hearing, Decision & Order• Appeals

Appeals

• Form 30 – Request for (Full) Commission Review

• Subsequent Appeals– Pre-2007 injuries are first appealed to Circuit

Court, then to SC Court of Appeals– Post-2007 injuries are appealed directly to the SC

Court of Appeals– Supreme Court

Works Cited

Beard, Poteat, Lamar, Sumwalt, Bluestein, Sullivan, The Law of

Workers' Compensation Insurance in South Carolina. 6th ed.

Columbia, SC: Continuing Legal Education, South Carolina Bar,

2012. Print.

South Carolina Workers' Compensation Law Annotated.

South Carolina: Thomson Reuters, 2016. Print.