H 3931 Session 111 (1995-1996)
H 3931 General Bill, By House Labor, Commerce and Industry
Similar(H 3564)
A Bill to amend Section 42-9-30, as amended, Code of Laws of South Carolina,
1976, relating to the amount of Workers' Compensation and period of disability
for certain injuries, so as to provide for a presumption of total and
permanent disability in cases where there is a fifty percent or more loss of
use of the back, and provide that this presumption may be rebutted by a
preponderance of the evidence; to amend the 1976 Code by adding Section
42-9-45 so as to provide that mental illness resulting from work-related
stress is not an accidental injury arising out of and in the course of
employment except under certain conditions, and provide for related matters;
to amend Section 42-9-260, as amended, relating to notice to the Workers'
Compensation Commission when payments of Workers' Compensation have begun and
suspension or termination of payments, so as to delete certain language and
provisions, provide that when an employee has been out of work due to a
reported work-related injury or occupational disease for eight days, an
employer may start temporary total disability payments immediately and may
continue such payments for up to one hundred twenty days without waiver of any
grounds for denial of a claim as may appear following a good faith
investigation, provide for the termination or suspension of temporary
disability compensation, and provide for related matters; to amend Section
42-1-40, relating to the definition of "average weekly wages" under the
Workers' Compensation law, so as to delete certain language and provisions,
and provide that "average weekly wage" must be calculated by taking the total
wages paid for the last four quarters immediately preceding the quarter in
which the injury occurred as reported on the Employment Security Commission's
employer contribution reports divided by fifty-two or by the actual number of
weeks for which wages were paid, whichever is less; to amend Section 42-9-360,
relating to assignments of Workers' Compensation and exemptions from the
claims of creditors and taxes, so as to add provisions to the Section
including, among other things, the provision that it shall be unlawful for an
authorized health care provider
04/05/95 House Introduced, read first time, placed on calendar
without reference HJ-10
04/19/95 House Objection by Rep. Baxley, Delleney, Thomas,
Beatty, Mason, Cato, A. Young, L. Whipper,
Limehouse, Davenport, R. Smith, Cooper,
Moody-Lawrence & White HJ-21
05/09/95 House Debate adjourned until Wednesday, May 10, 1995 HJ-199
05/11/95 House Debate adjourned until Thursday, May 18, 1995 HJ-41
05/24/95 House Debate adjourned until Wednesday, May 31, 1995 HJ-90
01/11/96 House Retaining place on calendar recommitted to
Committee on Labor, Commerce and Industry HJ-27
05/02/96 House Recalled from Committee on Labor, Commerce and
Industry HJ-31
05/07/96 House Recommitted to Committee on Labor, Commerce and
Industry HJ-34
Indicates Matter Stricken
Indicates New Matter
RECALLED
May 2, 1996
H. 3931
Introduced by Labor, Commerce and Industry
Committee
S. Printed 5/2/96--H.
Read the first time April 5, 1995.
A BILL
TO AMEND SECTION 42-9-30, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
AMOUNT OF WORKERS' COMPENSATION AND PERIOD OF
DISABILITY FOR CERTAIN INJURIES, SO AS TO PROVIDE
FOR A PRESUMPTION OF TOTAL AND PERMANENT
DISABILITY IN CASES WHERE THERE IS A FIFTY PERCENT
OR MORE LOSS OF USE OF THE BACK, AND PROVIDE
THAT THIS PRESUMPTION MAY BE REBUTTED BY A
PREPONDERANCE OF THE EVIDENCE; TO AMEND THE
1976 CODE BY ADDING SECTION 42-9-45 SO AS TO
PROVIDE THAT MENTAL ILLNESS RESULTING FROM
WORK-RELATED STRESS IS NOT AN ACCIDENTAL INJURY
ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT
EXCEPT UNDER CERTAIN CONDITIONS, AND PROVIDE
FOR RELATED MATTERS; TO AMEND SECTION 42-9-260,
AS AMENDED, RELATING TO NOTICE TO THE WORKERS'
COMPENSATION COMMISSION WHEN PAYMENTS OF
WORKERS' COMPENSATION HAVE BEGUN AND
SUSPENSION OR TERMINATION OF PAYMENTS, SO AS TO
DELETE CERTAIN LANGUAGE AND PROVISIONS, PROVIDE
THAT WHEN AN EMPLOYEE HAS BEEN OUT OF WORK
DUE TO A REPORTED WORK-RELATED INJURY OR
OCCUPATIONAL DISEASE FOR EIGHT DAYS, AN
EMPLOYER MAY START TEMPORARY TOTAL DISABILITY
PAYMENTS IMMEDIATELY AND MAY CONTINUE SUCH
PAYMENTS FOR UP TO ONE HUNDRED TWENTY DAYS
WITHOUT WAIVER OF ANY GROUNDS FOR DENIAL OF A
CLAIM AS MAY APPEAR FOLLOWING A GOOD FAITH
INVESTIGATION, PROVIDE FOR THE TERMINATION OR
SUSPENSION OF TEMPORARY DISABILITY
COMPENSATION, AND PROVIDE FOR RELATED MATTERS;
TO AMEND SECTION 42-1-40, RELATING TO THE
DEFINITION OF "AVERAGE WEEKLY WAGES"
UNDER THE WORKERS' COMPENSATION LAW, SO AS TO
DELETE CERTAIN LANGUAGE AND PROVISIONS, AND
PROVIDE THAT "AVERAGE WEEKLY WAGE"
MUST BE CALCULATED BY TAKING THE TOTAL WAGES
PAID FOR THE LAST FOUR QUARTERS IMMEDIATELY
PRECEDING THE QUARTER IN WHICH THE INJURY
OCCURRED AS REPORTED ON THE EMPLOYMENT
SECURITY COMMISSION'S EMPLOYER CONTRIBUTION
REPORTS DIVIDED BY FIFTY-TWO OR BY THE ACTUAL
NUMBER OF WEEKS FOR WHICH WAGES WERE PAID,
WHICHEVER IS LESS; TO AMEND SECTION 42-9-360,
RELATING TO ASSIGNMENTS OF WORKERS'
COMPENSATION AND EXEMPTIONS FROM THE CLAIMS OF
CREDITORS AND TAXES, SO AS TO ADD PROVISIONS TO
THE SECTION INCLUDING, AMONG OTHER THINGS, THE
PROVISION THAT IT SHALL BE UNLAWFUL FOR AN
AUTHORIZED HEALTH CARE PROVIDER TO ACTIVELY
PURSUE COLLECTION PROCEDURES AGAINST A
WORKERS' COMPENSATION CLAIMANT BEFORE THE
FINAL ADJUDICATION OF THE CLAIMANT'S CLAIM; AND
TO AMEND SECTION 42-19-10, AS AMENDED, RELATING
TO THE WORKERS' COMPENSATION LAW AND
EMPLOYERS' RECORDS AND REPORTS OF INJURIES, SO
AS TO DELETE THE CURRENT PROVISIONS OF THE
SECTION, AND PROVIDE, AMONG OTHER THINGS, THAT
EVERY EMPLOYER SHALL KEEP A RECORD OF ALL
INJURIES RECEIVED BY HIS EMPLOYEES IN THE COURSE
OF THEIR EMPLOYMENT ON FORMS APPROVED BY THE
WORKERS' COMPENSATION COMMISSION AND THAT
CERTAIN INJURIES MUST BE REPORTED IN WRITING TO
THE COMMISSION ACCORDING TO CERTAIN GUIDELINES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 42-9-30(19) of the 1976 Code is amended
to read:
"(19) For the total loss of use of the back, sixty-six and
two-thirds percent of the average weekly wages during three
hundred weeks. The compensation for partial loss of use of the
back shall must be such those
proportions of the periods of payment herein provided in
this paragraph for total loss as such the partial
loss bears to total loss, except that in cases where there is fifty
percent or more loss of use of the back, in which event the injured
employee shall be deemed is presumed to have
suffered total and permanent disability and must be
compensated therefor for this under paragraph two
of Section 42-9-10. The presumption of total and permanent
disability due to a fifty percent or more loss of use of the back may
be rebutted by a preponderance of the evidence."
SECTION 2. The 1976 Code is amended by adding:
"Section 42-9-45. (A) Mental illness resulting from
work-related stress is not an accidental injury arising out of and in
the course of employment unless it is established by clear and
convincing evidence that:
(1) the stressful employment conditions causing the mental
injury were extraordinary and unusual in comparison to the
pressures and tensions experienced by individuals performing
similar work; and
(2) the stressful employment conditions were the predominant
cause of the mental injury; and
(3) the mental injury was caused by stressful employment
conditions that exist in a real and objective sense.
(B) A determination of mental injury, its cause, and resulting
disability or need for medical treatment must be supported by clear
and convincing psychiatric or psychological evidence.
(C) A mental injury is not considered compensable if it results
from a verbal disagreement with an employer or a coemployee, or
results from a personnel decision by the employer, including, but
not limited to, any disciplinary action, work evaluation, job transfer,
demotion, promotion, salary review, or voluntary or involuntary
termination of employment."
SECTION 3. Section 42-9-260 of the 1976 Code, as last
amended by Act 410 of 1988, is further amended to read:
"Section 42-9-260. (A) When an employee has been
out of work due to a reported work-related injury or occupational
disease for eight days, an employer may start temporary total
disability payments immediately and may continue such payments
for up to one hundred twenty days without waiver of any grounds
for denial of a claim as may appear following a good faith
investigation. Upon making the first payment, the employer
shall immediately notify the commission, in accordance with
regulations promulgated by the commission regarding the timely
filing of this notice and with a form prescribed by the
commission, that payment of compensation has begun.
The Commission shall provide by rule the method and
procedure by which benefits may be suspended or terminated for
any cause, but such rule must provide for an evidentiary hearing
and Commission approval prior to termination or suspension unless
such prior hearing is expressly waived in writing by the recipient.
Further, the Commission may not entertain any application to
terminate or suspend benefits unless and until the employer or
carrier is current with all payments due.
(B) Once payment of temporary disability compensation has
been commenced, it may be terminated or suspended immediately if
the employee:
(1) has returned to work; or
(2) agrees that he is able to return to work and executes the
proper commission form indicating that he is able to return to work.
Alternatively to items (1) and (2) of this subsection, once payment
of temporary disability compensation has been commenced, it may
be terminated or suspended at any time within one hundred twenty
days of the date that payments are commenced if a good faith
investigation reveals grounds for denial of the claim.
(C) If the employee has been released by the treating physician
to work and the employer provides work consistent with the terms
upon which the employee has been released, compensation may be
terminated or suspended if the employee refuses to return to work.
(D) If the employee has been released by the treating physician
to limited duty work and the employer provides limited duty work
consistent with the terms upon which the employee has been
released, compensation may be terminated or suspended if the
employee refuses to accept the limited duty work provided by the
employer or to return to work.
(E) If the employee refuses medical treatment under Section
42-15-60 or an examination or evaluation under Section 42-15-80,
the employee is not entitled to compensation benefits during the
period of the refusal. Upon the submission of documentation of the
refusal by the employee of this medical treatment, examination, or
evaluation to the commission and notice to the employee,
compensation may be terminated.
(F) An employee may request a hearing to have
temporary compensation reinstituted after termination. The
commission must give this hearing request priority consideration
over other hearing requests.
(G) Failure to comply with such rule as to termination
or suspension of benefits must this section shall result
in a twenty-five percent penalty imposed upon the carrier or
employer computed on the amount of benefits withheld without
prior Commission approval in violation of this section,
and the amount of the penalty must be paid to the employee in
addition to the amount of benefits withheld. However, the
penalty does not apply if the employer or carrier has terminated or
suspended benefits when the employee has returned to any
employment at the same or similar wage."
SECTION 4. The first paragraph of Section 42-1-40 of the 1976
Code is amended to read:
"`Average weekly wages' means the earnings of the injured
employee in the employment in which he was working at the time
of the injury during the period of fifty-two weeks immediately
preceding the date of the injury, including the subsistence allowance
paid to veteran trainees by the United States Government if the
amount of such allowance is reported monthly by such trainee to
his employer, divided by fifty-two. `Average weekly
wage' must be calculated by taking the total wages paid for the last
four quarters immediately preceding the quarter in which the injury
occurred as reported on the Employment Security Commission's
Employer Contribution Reports divided by fifty-two or by the
actual number of weeks for which wages were paid, whichever is
less. If the injured employee lost more than seven
consecutive calendar days at one or more times during such period,
although not in the same week, then the earnings for the remainder
of such fifty-two weeks shall be divided by the number of weeks
remaining after the time so lost has been deducted. When the
employment prior to the injury extended over a period of less than
fifty-two weeks, the method of dividing the earnings during that
period by the number of weeks and parts thereof during which the
employee earned wages shall be followed, so long as results fair
and just to both parties will be obtained. Where, by reason of a
shortness of time during which the employee has been in the
employment of his employer or the casual nature or terms of his
employment, it is impracticable to compute the average weekly
wages as defined in this section, regard is to be had to the average
weekly amount which during the fifty-two weeks previous to the
injury was being earned by a person of the same grade and
character employed in the same class of employment in the same
locality or community."
SECTION 5. Section 42-9-360 of the 1976 Code is amended to
read:
"Section 42-9-360. (A) No claim for
compensation under this title shall be assignable and all
compensation and claims therefor shall be exempt from all claims
of creditors and from taxes.
(B) It shall be unlawful for an authorized health care
provider to actively pursue collection procedures against a workers'
compensation claimant prior to the final adjudication of the
claimant's claim. Nothing in this section shall be construed to
prohibit the collection from and demand for collection from a
workers' compensation insurance carrier or self-insured employer.
Violation of this section, after written notice to the provider from
the claimant or his representative that adjudication is ongoing, shall
result in a penalty of five hundred dollars payable to the workers'
compensation claimant.
(C) Any person who receives any fee or other consideration
or any gratuity on accounts of services so rendered, unless such
consideration or gratuity is approved by the commission or such
court, or who makes it a business to solicit employment for a
lawyer or for himself in respect of any claim or award for
compensation is guilty of a misdemeanor and, upon conviction
must, for each offense, be punished by a fine of not more than five
hundred dollars or by imprisonment not to exceed one year, or by
both such fine and imprisonment.
(D) Payment to an authorized health care provider for
services shall be made timely but no later than thirty days from the
date the authorized health care provider tenders request for payment
to the employer's representative, unless the commission has
received a request to review the medical bill."
SECTION 6. Section 42-19-10 of the 1976 Code, as last
amended by Section 15, Part II of Act 612 of 1990, is further
amended to read:
"Section 42-19-10. Every employer shall keep a
record of all injuries, fatal or otherwise, received by his employees
in the course of their employment on blanks approved by the
commission. Within ten days after the occurrence and knowledge
of it, as provided in Section 42-15-20, of an injury to an employee
requiring medical or surgical attention, a report of the injury must
be made in writing and mailed to the commission on blanks
approved by it for this purpose. However, for the injury of a South
Carolina National Guard member as provided for in Section
42-7-67, the ten days must be counted from the date the employer,
the South Carolina National Guard, has knowledge that the federal
government has denied benefits to the injured guard member or that
benefits or additional benefits may be due under the provisions for
South Carolina Workers' Compensation.
Such report shall contain the name, nature and location of the
business of the employer and the name, age, sex, wages and
occupation of the injured employee and shall state the date and hour
of the accident causing injury, the nature and cause of the injury
and such other information as may be required by the Commission.
An injury for which there is no compensable lost time or
permanency and the medical treatment does not exceed an amount
specified by regulation of the Workers' Compensation Commission
may be filed in summary on a form and at a time prescribed by the
commission. Provided, however, this form may not be used to
report an injury to the back. Every employer shall keep a
record of all injuries, fatal or otherwise, received by his employees
in the course of their employment on forms approved by the
commission.
If the injury requires minimal medical attention at a cost not to
exceed an amount specified by regulation of the Workers'
Compensation Commission, does not cause more than one lost
workday or permanency, the employer is not required to make a
written report to the commission or their insurance carrier, provided
the employer maintains a record as prescribed by the commission
and pays directly the incurred cost of the resulting medical
attention.
All other injuries must be reported in writing to the commission
according to the following guidelines:
(1) An injury for which there is no compensable lost time or
permanency and the medical treatment does not exceed an amount
specified by regulation of the Workers' Compensation Commission
must be reported annually on a form and at a time prescribed by the
commission.
(2) An injury involving compensable lost time, medical
attention in excess of the limit established by commission regulation
in (1) above, or the possibility of permanency must be reported
within ten business days after the occurrence and knowledge of it,
as provided in Section 42-15-20, on a form or in an electronic
format prescribed by the commission.
However, for the injury of a South Carolina National Guard
member as provided for in Section 42-7-67, the reporting periods
must be counted from the date the employer, the South Carolina
National Guard, has knowledge that the federal government has
denied benefits to the injured guard member or that benefits or
additional benefits may be due under the provisions of Title
42."
SECTION 7. This act takes effect upon approval by the
Governor.
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