For workers who are injured in the state of South Carolina, South Carolina workers’ compensation insurance is designed to help injured workers recover the money that they need to pay for medical bills and a portion of their lost wages. If you are injured while on the job and have questions about your rights under the law, do not hesitate to contact an experienced South Carolina workers’ compensation attorney.
A workplace injury can happen to anyone in nearly any industry type. Where there are certainly industry types where accidents are more common, even an office worker may be at risk of an injury in certain cases.
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Workers’ Compensation: Industries with the Highest Rate of Injury
In the year 2014, there were 4,679 workers killed while on the job in the United States, equivalent to a rate of 3.3 per 100,000 full-time workers. On average, this means that there were more than 13 work-related deaths every day, or about 90 deaths per week. This data is found on the website of the Occupational Health and Safety Administration (OSHA).
For obvious reasons, workers in certain industry types are at a much higher risk of sustaining a work-related injury than are others. The Bureau of Labor Statistics reports that the following industries had the highest rate of nonfatal occupational injuries and illnesses in 2014 in the state of South Carolina:
- Natural resources and mining;
- Oil and gas extraction;
- Construction; and
- Healthcare and social services.
Not surprisingly, some of the industries with the lowest rates of occupational injuries include management, real estate, finance, information, and scientific services. However, persons in these industries may still be at risk for certain injury types, including carpal tunnel, slip and fall injuries, physical assault, and more.
Of all of the worker fatalities recorded in 2014, more than 20 percent of them were in the construction industry. The leading cause of worker deaths within this industry type included falls, electrocutions, being struck by an object, and being caught in or in between machinery.
How Does the Workers’ Compensation Insurance System Work?
Workers ‘compensation insurance is unique in that it is no fault insurance. This means that a worker who is injured while performing a work-related task in South Carolina (and whose employer carries workers’ compensation insurance) can file a workers’ compensation claim for benefits regardless of what caused the injury. In other words, even if the worker contributed to their own injury, a claim may still be filed. Further, the injured employee need not prove the fault of the employer nor any other party.
The system is a bit of a trade off; while workers do not need to prove fault, they are simultaneously barred from filing a lawsuit directly against the employer, even if the employer’s fault contributed to the workplace injury.
Who Is Covered by Workers’ Compensation in South Carolina?
Nearly all employers in the state of South Carolina are required to carry workers’ compensation insurance, and as such, nearly all employees are covered under it. However, there are some exceptions to this rule; any employer who employs fewer than four full or part-time employees is not required to carry workers’ compensation insurance. Employees in certain industry types, including agriculture, railroad, and railway express, may also not be covered under workers’ compensation insurance.
However, most employers are required under law to carry workers’ compensation insurance, and cannot elect to not do so.
Keep in mind that only employees are covered under workers’ compensation insurance, not independent contractors. The distinction between these two worker types is very important. In some cases, an employer may intentionally misclassify a worker as an independent contractor rather than as an employee with the intent of skirting the responsibility to offer the individual workers’ compensation insurance and other benefit types.
An employee is typically considered to be a person who receives a salaried or hourly wage, and is not paid on a per-project or completion basis; whose schedule is controlled by the company for which they work; who is monitored in their activities; and who has other types of employee benefits or who has signed an employee agreement. If you believe that you have been wrongfully classified as an independent contractor when you are truly an employer, and if you believe that you are entitled to workers’ compensation benefits that you are not receiving, you should speak with an attorney.
What Does Workers’ Compensation Pay for?
There are two primary types of benefits that a worker is entitled to after suffering an on the job injury: medical treatment and compensation for lost wages. You are entitled to all relevant and necessary medical treatment that is related to your workplace injury. This includes all:
- Doctors’ and hospital visits;
- Prescription medications;
- Medical supplies;
- Prosthetic devices; and
In addition to medical treatment, you may also be eligible to recover compensation for part of your lost wages. According to the South Carolina Workers’ Compensation Commission, you are entitled to compensation at a rate that is equal to 66.66 percent of your average weekly wage that you were receiving prior to sustaining your injury. However, you cannot receive more than the maximum average weekly wage determined on an annual basis (even if 66.66 percent of your average wage exceeds this number).
For the surviving family members of deceased workers, death benefits are also available.
Benefits will cease after the injured employee has healed enough to return to work at the same wage that was being earned prior to the occurrence of the accident and injury.
In some cases, a worker does not ever fully heal, and is permanently unable to return to work or return to their former manner of living. Those who suffer an injury resulting in paraplegia, quadriplegia, or permanent brain damage are entitled to lifetime disability benefits. Those who suffer other injuries that result in total disability or death are allowed to collect disability/death benefits for a maximum 500-week time period.
The Difference Between Third Party Liability Claims and Workers’ Compensation Insurance
Above, it was mentioned that the workers’ compensation insurance system allows workers to recover benefits regardless of fault, but also bars them from filing a claim against an at fault employer. However, the system does not bar injured workers from filing a claim against a negligent third party. In fact, a worker may be able to file both a workers’ compensation claim and a third party liability lawsuit simultaneously. The difference between the two are:
- A workers’ compensation claim is a claim filed with an insurance company, whereas a third party liability suit is a lawsuit filing directly against an at-fault party;
- In a third party liability suit, the worker must prove negligence;
- Workers’ compensation insurance only yields damages for lost wages and medical expenses, whereas a third party liability claim can yield damages for the above and pain and suffering; and
- While only certain workers are covered under workers’ compensation insurance, anyone has the right to file a negligence-based lawsuit.
The most difficult component of a third party liability suit is that a person must prove fault in order to recover compensation.
Parties who might be named in a third party liability suit (remember, an injured worker cannot file a lawsuit against their employer unless the employer wantonly and willfully caused the employee’s injuries) include:
- The manufacturer of a defective product;
- A negligent driver or passerby;
- A product shipper; or
- A negligent property owner.
An attorney can help you to explore the differences of a workers’ compensation claim and a third party liability claim – and the benefits of each – in more detail.
Injuries vs. Occupational Diseases and Workers’ Compensation Insurance
Physical injuries – such as a broken bone – are covered under workers’ compensation insurance, as are occupational illnesses or diseases. According to Title 42 – Workers’ Compensation, Chapter 11 of the South Carolina Code of Laws, an occupational disease is defined 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.” For example, a construction worker who was continually exposed to asbestos and develops mesothelioma as a direct result may be entitled to benefits for an occupational disease. Some common occupational disease that an employee may contract or develop as a direct result of their job include:
- Asbestos-related illnesses;
- Carpal tunnel;
- Certain cancers;
- Musculoskeletal complications;
- Deafness or blindness;
- Skin diseases; and
- Respiratory complications or diseases.
In some cases, claims for workers’ compensation benefits for psychological disorders have been filed. These claims are possible when the psychological disorder meets the criteria for an occupational disease named above. Further, according to South Carolina Code, stress, mental injuries, and mental illnesses arising out of and in the course of employment that are not accompanied by a physical injury are only eligible for workers’ compensation benefits in the event that:
- The employee’s work situation or employer causing the stress was extraordinary and unusual;
- The stress/mental injury did not result due to normal employer-employee relations; and
- Medical evidence proves that stressful employment conditions were the direct cause of the stress, mental injury, or mental illness.
Reporting a Workplace Injury
One of the most important components of receiving workers’ compensation benefits is ensuring that a claim for benefits is filed within a timely manner. The first step in the process is reporting a workplace injury as soon as it occurs or as soon as is possible but within no more than 90 days. If you do not report your injury to your employer within the 90-day time frame, you may be permanently barred from recovering compensation. The process of filing for workers’ compensation benefits, as well as the time limits for doing so, is discussed below in more detail.
Workers’ Compensation Statute of Limitations
As mentioned above, it is important that you take action to notify your employer of your workplace injury and file your claim within the required time frame. If you fail to do either, you may be permanently prevented from recovering compensation, and will therefore have to pay for your medical expenses and other finances losses out of your own pocket.
You have 90 days from the date that your injury occurs to notify your employer of the accident. However, it is highly advised that you do not wait this long, and instead inform your employer of your injury as soon as possible.
Once you have reported your injury to your employer, your employer is responsible for 1) ensuring that you receive medical attention and 2) reporting your injury to their workers’ compensation carrier. From here, the workers’ compensation carrier (insurance company) is responsible for reporting the event to the South Carolina Workers’ Compensation Commission.
While reporting the injury is the employer’s duty, you have a responsibility to make sure that it has been done. If your employer does not report your injury or denies that your accident happened, you should report your injury own your own. To do so, you will need to submit a Form 50 or Form 52 to the Workers’ Compensation Commission. While you only have 90 days to inform your employer of an injury, you have two years from the date that your injury occurs to file a workers’ compensation claim for benefits. The same is true for the surviving family members of a deceased worker.
If you are appealing a denied claim, this too must be completed with a certain amount of time. You must file your appeal within 14 days of the date of receiving notice that your claim has been denied.
If you are filing a third party liability claim in addition to or in place of a workers’ compensation claim for benefits, you must do this three years’ time from the date that your injury occurred, per South Carolina Code Section 15-3-530.
Because of the strict statute of limitations, which governs how long you have to file a workers’ compensation claim or a lawsuit, it is important that you consult with an attorney as soon as possible after your injury occurs.
The laws for filing a claim for an occupational disease or illness are slightly different. First of all, no benefits will be paid for an occupational illness unless the illness was contracted within one year to the last exposure to the hazard, or within two years if the disease is a pulmonary disease arising out of the inhalation of dusts. Further, the statute of limitations for filing a claim for an occupational disease is typically considered to start from the date of discovery.
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How to File for Workers’ Compensation in South Carolina?
As mentioned briefly above, it is your full responsibility to ensure that your workers’ compensation claim is filed. The following provides a step-by-step guide for filing for workers’ compensation benefits in South Carolina:
- Report your injury. The first thing that you need to do after you have suffered a workplace injury is to report the injury to your employer. You must report your injury to your employer within 90 days of the injury’s occurrence, although doing so as soon as possible is highly advised.
- Ensure that your employer reports the injury to their insurance carrier. The second thing that you need to do is make sure that your employer reports the injury to their workers’ compensation insurance carrier. Your employer has a legal obligation to file a First Report of Injury or Illness form. If your employer does not file this form, then you have the right to file for workers’ compensation insurance on your own.
- File the appropriate form with the Workers’ Compensation Commission. If your employer does not report your injury to their insurance company for whatever reason, then you have the right and the obligation to file for workers’ compensation on your own. To do so, you will file either a Form 50 or a Form 52 with the South Carolina Workers’ Compensation Commission (the latter is a claim for death benefits). If you do not wish to have a hearing at this time, it is important that you check the box stipulating so.
- Attend a workers’ compensation hearing. If your employer denies your injuries, denies your benefits, if you are unhappy with the doctor that is assigned to your case by your insurance carrier, or if there are any other indications that your rights to workers’ compensation insurance are being violated, you can request a hearing with the South Carolina Workers’ Compensation Commission. You will request a hearing by filing a Form 50. During your hearing, you will have an opportunity to present your case, and a commissioner will then make a determination about your case. It is highly advised that you seek legal counsel at this point. Your attorney can represent you during a hearing and provide you with important information about your rights.
- File an appeal. If you do not agree with a commissioner’s decision regarding your workers’ compensation benefits, you have the legal right to file an appeal of the decision. To do so, you will need to file a Form 30 – Request for Commission Review with the South Carolina Workers’ Compensation Commission within no more than 14 days’ time from the date that you receive the commissioner’s decision. If you wait more than 14 days, you may be unable to appeal the decision at all.
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 Firm.