March 2013

Lowcountry Lawyers: Workers' Compensation

Author: Sammy Svalina

While most people in South Carolina have likely heard the term “workers’ comp” and may even have a general understanding of what it means, very few people are familiar with the intricacies of this specialized field of law unless they have dealt with it firsthand. Svalina Law Firm, P.A., has specialized in handling workers’ compensation matters throughout South Carolina for a number of years.

The concept behind workers’ compensation law is easy enough. If an employee suffers injury by accident arising out of and in the course of employment, then that individual is entitled to medical treatment (including mileage reimbursements to appointments), temporary total compensation, and disability benefits if permanently impaired (this may include future medical treatment). However, due to amendments to the South Carolina Workers’ Compensation Act in 2007, this simple concept has been complicated by new standards which require strict compliance in order for an injured worker to receive benefits under the Act.

When an employee is injured on the job, he or she should immediately report the accident to the supervisor, listing all injured body parts. Failure to report to the employer within 90 days of the accident may forfeit an employee’s right to benefits under the Act. After reporting the injury, an employee must immediately go to a doctor, report all injured body parts, and obtain an out-of-work excuse if unable to go back to work. If an employer denies benefits upon notice of the injury, an employee has two years from the date of the accident to file a claim with the Workers’ Compensation Commission.

If an employee is injured and unable to work for more than seven days, the employee is eligible to receive temporary total disability benefits, calculated at the rate of 66 2/3 percent of the employee’s average weekly wage. This is commonly referred to as an employee’s “compensation rate.”

When an employee has suffered permanent impairment to a body part causing disability, there are three types of benefits which the employee can receive: scheduled member disability, permanent partial disability, or permanent total disability. Scheduled member disability benefits apply when an employee has suffered permanent impairment to a single body part or “scheduled member.” S.C. Code 42-9-30 provides a schedule of body parts with a value assigned to each body part in terms of the number of weeks of compensation an employee is entitled to receive for sustaining an injury to that body part. For example, if an employee permanently injures his arm, the statute provides that he is entitled to 220 weeks of benefits, depending on the percentage of impairment and disability the injury causes the employee. Permanent partial disability benefits apply when an injured employee is able to go back to work but is unable to earn money at the same level that he was making before the injury. Permanent total disability benefits apply when an employee has injured two or more body parts which prevent the employee from obtaining any type of gainful employment.

In most cases resulting in permanent impairment, a vocational rehabilitation expert is needed, as well as expert testimony from the treating physician explaining “to a reasonable degree of medical certainty most probably” the limitations to the body part caused by the permanent injury. The treating physician must also testify to the future medical treatment needed for the injured body part.

Finally, and most importantly, an employee injured on the job should immediately seek the advice of an attorney to protect his/her rights under the Workers’ Compensation Act as amendments in 2007 have made it more difficult for injured employees to protect themselves.

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