Workers’ Compensation FAQs
The above information should provide you with a good basis for understanding the workers’ compensation process and filing a claim. However, here are some answers to some of the most frequently asked questions about workers’ compensation insurance in South Carolina:
What does a workers’ compensation lawyer do?
A workers’ compensation lawyer is responsible for advocating for an injured worker though the entirety of the workers’ compensation process. This includes helping the worker file for workers’ compensation, helping the worker to request a hearing or an appeal, working directly with the workers’ compensation insurance provider and the employer, advocating for a worker’s right to take time off from work, and advising the employer regarding all aspects of workers’ compensation law. A workers’ compensation attorney can also provide information about a third party liability claim and the benefits of filing this claim type, and can also gather medical evidence on the injured worker’s behalf to demonstrate the extent of injuries suffered.
What if I am released back to work before I am ready?
Being released back to work is an order that is handed down by the doctor who is responsible for reporting back to your workers’ compensation insurance provider. Typically, this is a doctor who is chosen by the workers’ compensation insurance company. Sometimes, many people believe that this creates a conflict of interest, and that a doctor may act in a manner that is within the insurance company’s best interests, not the patients.
If you are release back to work before you believe that you are ready, you can request a hearing before the South Carolina Workers’ Compensation Commission where you present a case as to why you are not ready to return to work and why you should be allowed to continue recouping workers’ compensation benefits.
What are my options if I am injured on the job and my employer does not carry workers’ compensation insurance?
Being injured on the job when your employer does not carry workers’ compensation insurance is a very scary feeling. In the event that your employer does not carry workers’ compensation insurance and they are legally obligated to do so, they may face civil penalties and fines, and may be liable for your injuries. Further, it is illegal for an employer to require you to pay for any of the premiums for workers’ compensation insurance, or for any of your medical treatment related to an injury that occurs while you are performing a work-related task. If you believe that your employer is obligated to offer workers’ compensation insurance but does not, it is best if you can speak to a legal professional about this before you are injured on the job. If you do not become aware of your employer’s lack of workers’ compensation insurance until after you have been injured, it is essential that you seek legal counsel, which can advise you of your options.
What if I was at fault for my injury?
In the vast majority of cases, you have the right to receive workers’ compensation benefits even if you were at fault for your injuries. However, there are some exceptions to this rule; your employer may not be liable for your injuries, and therefore may not be liable to provide you with workers’ compensation benefits, in the event that your injury was caused as a direct result of your intoxication – from either alcohol or illegal drugs – or if your injury was caused because you failed to use safety equipment that was provided to you by your employer.
How much does a workers’ compensation attorney charge?
Most workers’ compensation lawyers in South Carolina charge a contingent fee for their services, meaning that any fee being assessed is contingent on your case being won; if you do not receive any workers’ compensation benefits, the attorney will not be paid. The amount that your attorney will charge depends on a number of factors, but most attorneys charge less than 25 percent of your total winnings (in many states, there are caps on the percentage of winnings that attorneys in workers’ compensation cases are allowed to collect).
Before you hire an attorney, it is highly advised that you meet with the attorney to learn about their background in workers’ compensation law, as well as their fee structure. If the attorney charges upfront fees, usually referred to as retainer fees, you should seek legal counsel from another professional.
Can I choose my own doctor?
Unfortunately, the current law reads that the employer and the employer’s workers’ compensation insurance carrier have the right to choose the doctor from whom you will seek medical care following a workplace injury. While you certainly have the right to receive treatment from a doctor of your choosing, keep in mind that, with the exception of emergency situations, your employer will not be obligated to pay for this care.
Many employees feel as though their rights are violated or that they receive unfair treatment when unable to choose their own doctor. If you feel this way, you can request a hearing with the South Carolina Workers’ Compensation Commission. If you disagree with a doctor about treatment options, you can use medical evidence from your own doctor to dispute an opinion.
When will my benefits be terminated?
Your benefits will be terminated after your doctor releases you back to work. You will receive notice of the decision that you have been medically released, the benefits have been terminated, and why. You can fight this decision if you believe that it has been made in error.
Can I File for Workers’ Compensation Insurance if I Am Only a Part-time Employee?
Many workers wonder whether or not they are entitled to workers’ compensation insurance if they are only part-time workers, and are not employed for a full 40 hours a week. The answer is that all employees, both full-time and part-time, are covered under workers’ compensation insurance, and that an employer is required to carry workers’ compensation insurance even if they only have part-time workers. To be sure, South Carolina Code of Laws Section 41-2-130 defines an employee as:
“…every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, including aliens and also including minors, whether lawfully or unlawfully employed…”
This means that not only are part-time workers covered under workers’ compensation insurance, but so are workers who are undocumented or who are minors.
If your employer tried to tell you that you do not qualify for workers’ compensation insurance after you have suffered a workplace injury based on your status as a part-time employee, they are likely mistaken; consult with an attorney or contact the Workers’ Compensation Commission directly for clarification and to protect your right to benefits.
How Long Do I Have to Be Employed to Qualify for Workers’ Compensation Benefits?
Another question that most workers have is for how long they have to work before they can reap the benefits provided by the workers’ compensation system. The good news for workers’ is that workers’ compensation insurance coverage begins from the moment the employee is hired. This means that a worker who is injured in their first month of work is as equally entitled to workers’ compensation benefits as is a worker injured in their 10th year of work.
Again, do not be dissuaded by an employer who tries to tell you that you are not eligible for workers’ compensation benefits because you have not worked for the company for a sufficient amount of time; you are covered from your first day on the job.
What if My Employer Will Not Report My Injury to Their Workers’ Compensation Insurance Carrier?
The failure of an employer to report a workplace injury to the appropriate party is a violation of the law. If your employer fails to report the injury, the first thing that you should do is to hire an experienced workers’ compensation attorney. The second thing that you should do is to file your workers’ compensation claim with the South Carolina workers’ compensation commission on your own to ensure that you are not denied benefits (remember, you have two years from the date that your workplace accident occurred to file a claim for benefits).
Depending upon the circumstance, you may also consider filing a complaint directly against your employer with the South Carolina Human Affairs Commission. Your employer is legally barred from retaliating against you if you do decide to file a complaint.
The most important thing that you can do is to seek medical treatment for your injuries and to file your doctor’s orders. If you need to, you should file your workers’ compensation claim on your own be diligent throughout the process. An attorney can advise you from there.
Do I Have to Take Time Off for a Work-related Injury?
When you are injured on the job, the first thing that you should do as soon as possible – and immediately if you can – is to seek medical care. Seeking medical care may require you to miss work. Further, your doctor may advise you to take some time off from work to heal, or you may be physically unable to return to work or perform work-related tasks due to your injury.
If your doctor tells you that you are unable to return to work, you should absolutely follow this recommendation until you are released back to your job. If you have to miss work due to medical reasons, you are entitled to compensation for your days of missed pay. There is a seven-day waiting period before benefits can begin. After the seven-day window, benefits will be paid at a rate of 66.66 percent of your average weekly wage prior to the injury. If you have to miss work for more than 14 days, you will receive back pay for the initial seven days for which pay was unavailable. Payments will be made directly to you (not to your employer and then to you) from the workers’ compensation insurance carrier. When you are medically released back to work, these payments will cease.
Keep in mind that if missing work is not per a doctor’s order, you will not be entitled to compensation for your lost wages. If you believe that you are released back to work before you are ready, you can appeal the decision with the South Carolina Workers’ Compensation commission.
Consult with an Experienced South Carolina Workers’ Compensation Attorney
If you have more questions about the process of filing for workers’ compensation benefits in South Carolina, believe your rights have been infringed upon, or want to learn more about the process, contact an experienced South Carolina workers’ compensation attorney as soon as possible. You can request a free consultation to discuss all of your legal questions today with the attorneys at the Elrod Pope Law.