H*3838 Session 111 (1995-1996)
H*3838(Rat #0511, Act #0424 of 1996) General Bill, By
House Labor, Commerce and Industry
Similar(S 727)
A Bill to amend Section 42-1-40, Code of Laws of South Carolina, 1976,
relating to the definition of "average weekly wages", so as to revise the
definition; to amend Section 42-1-160, relating to the definitions of "injury"
and "personal injury", so as to revise the definitions; to amend Section
42-1-310 and 42-1-320, relating to the application and effect of Workers'
Compensation provisions, so as to provide that an employer or employee may not
elect to not be bound by certain Workers' Compensation provisions and that the
State, its political subdivisions, its employees and the employees of its
subdivisions are subject to the Workers' Compensation provisions; to amend
Section 42-1-460, relating to contracts subject to the Workers' Compensation
provisions, so as to revise the conditions upon which a contract is subject to
these provisions; to amend Section 42-9-260, as amended, relating to the
notice an employer must provide the Workers' Compensation Commission when
certain payments have begun and the suspension or termination of payments, so
as to provide for the conditions upon which temporary disability payments may
be granted; to amend Section 42-9-360, relating to assignments of
compensation, so as to provide that it is unlawful for an authorized health
care provider to pursue collection procedures against a Workers' Compensation
claimant under certain circumstances, provide penalties for persons receiving
certain illegal payments and the procedure in which a health care provider
must be paid; to amend Section 42-19-10, as amended, relating to employers'
records and reports of injuries, so as to revise the recordkeeping procedure;
by adding Section 38-73-515 so as to provide that an insurer issuing Workers'
Compensation insurance shall offer deductibles optional to the policyholder
for certain benefits payable; to repeal Sections 42-1-330, 42-1-340, 42-1-510,
and 42-1-530, relating to the waiver of certain exemptions, the effective date
of and manner of giving notice of nonacceptance or waiver defenses that are
not available to an employer under the Workers' Compensation provisions, and
defenses that are not available to an employer when neither he nor an employee
is covered by the Workers' Compensation provisions; and to amend Section
42-1-520, relating to defenses available to an employer operating under the
Workers' Compensation provisions when an employee is not operating under these
provisions, so as to substitute "officer of a corporation" for
"employee".-amended title
03/22/95 House Introduced, read first time, placed on calendar
without reference HJ-12
03/28/95 House Objection by Rep. Cato, Clyburn, Anderson,
Davenport, L. Whipper, A. Young, Cooper, Mason,
Huff, Neilson, Howard, Govan, Cobb-Hunter,
Harvin, McElveen & Delleney HJ-42
04/05/95 House Debate interrupted HJ-72
04/26/95 House Read second time HJ-148
04/26/95 House Roll call Yeas-78 Nays-17 HJ-148
04/27/95 House Read third time and sent to Senate HJ-54
04/27/95 House Motion noted: Reconsider the vote whereby H.
3838 received third reading HJ-55
05/03/95 House Motion to reconsider tabled HJ-79
05/04/95 Senate Introduced and read first time SJ-7
05/04/95 Senate Referred to Committee on Judiciary SJ-7
04/24/96 Senate Committee report: Favorable with amendment
Judiciary SJ-21
04/25/96 Senate Amended SJ-45
04/25/96 Senate Read second time SJ-45
04/25/96 Senate Ordered to third reading with notice of
amendments SJ-45
05/02/96 Senate Special order SJ-63
05/22/96 Senate Debate interrupted SJ-129
05/23/96 Senate Read third time and returned to House with
amendments SJ-2
05/28/96 House Point of order-Senate amendments not printed and
on members' desks for 24 hours HJ-114
05/29/96 House Debate adjourned on Senate amendments until
Thursday, May 30, 1996 HJ-229
05/30/96 House Senate amendment amended HJ-25
05/30/96 House Returned to Senate with amendments HJ-25
05/30/96 Senate Concurred in House amendment and enrolled
06/13/96 Ratified R 511
06/18/96 Signed By Governor
06/18/96 Effective date 06/18/96 except as may otherwise
be provided in this Act
06/18/96 See act for exception to or explanation of
effective date
07/03/96 Copies available
07/03/96 Act No. 424
(A424, R511, H3838)
AN ACT TO AMEND SECTION 42-1-40, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF
"AVERAGE WEEKLY WAGES", SO AS TO REVISE THE
DEFINITION; TO AMEND SECTION 42-1-160, RELATING TO THE
DEFINITIONS OF "INJURY" AND "PERSONAL
INJURY", SO AS TO REVISE THE DEFINITIONS; TO AMEND
SECTIONS 42-1-310 AND 42-1-320, RELATING TO THE
APPLICATION AND EFFECT OF WORKERS' COMPENSATION
PROVISIONS, SO AS TO PROVIDE THAT AN EMPLOYER OR
EMPLOYEE MAY NOT ELECT TO NOT BE BOUND BY CERTAIN
WORKERS' COMPENSATION PROVISIONS AND THAT THE
STATE, ITS POLITICAL SUBDIVISIONS, ITS EMPLOYEES AND
THE EMPLOYEES OF ITS SUBDIVISIONS ARE SUBJECT TO THE
WORKERS' COMPENSATION PROVISIONS; TO AMEND SECTION
42-1-460, RELATING TO CONTRACTS SUBJECT TO THE
WORKERS' COMPENSATION PROVISIONS, SO AS TO REVISE
THE CONDITIONS UPON WHICH A CONTRACT IS SUBJECT TO
THESE PROVISIONS; TO AMEND SECTION 42-9-260, AS
AMENDED, RELATING TO THE NOTICE AN EMPLOYER MUST
PROVIDE THE WORKERS' COMPENSATION COMMISSION WHEN
CERTAIN PAYMENTS HAVE BEGUN AND THE SUSPENSION OR
TERMINATION OF PAYMENTS, SO AS TO PROVIDE FOR THE
CONDITIONS UPON WHICH TEMPORARY DISABILITY
PAYMENTS MAY BE GRANTED; TO AMEND SECTION 42-9-360,
RELATING TO ASSIGNMENTS OF COMPENSATION, SO AS TO
PROVIDE THAT IT IS UNLAWFUL FOR AN AUTHORIZED
HEALTH CARE PROVIDER TO PURSUE COLLECTION
PROCEDURES AGAINST A WORKERS' COMPENSATION
CLAIMANT UNDER CERTAIN CIRCUMSTANCES, PROVIDE
PENALTIES FOR PERSONS RECEIVING CERTAIN ILLEGAL
PAYMENTS AND THE PROCEDURE IN WHICH A HEALTH CARE
PROVIDER MUST BE PAID; TO AMEND SECTION 42-19-10, AS
AMENDED, RELATING TO EMPLOYERS' RECORDS AND
REPORTS OF INJURIES, SO AS TO REVISE THE
RECORDKEEPING PROCEDURE; BY ADDING SECTION 38-73-515
SO AS TO PROVIDE THAT AN INSURER ISSUING WORKERS'
COMPENSATION INSURANCE SHALL OFFER DEDUCTIBLES
OPTIONAL TO THE POLICYHOLDER FOR CERTAIN BENEFITS
PAYABLE; TO REPEAL SECTIONS 42-1-330, 42-1-340, 42-1-510,
AND 42-1-530, RELATING TO THE WAIVER OF CERTAIN
EXEMPTIONS, THE EFFECTIVE DATE OF AND MANNER OF
GIVING NOTICE OF NONACCEPTANCE OR WAIVER DEFENSES
THAT ARE NOT AVAILABLE TO AN EMPLOYER UNDER THE
WORKERS' COMPENSATION PROVISIONS, AND DEFENSES
THAT ARE NOT AVAILABLE TO AN EMPLOYER WHEN
NEITHER HE NOR AN EMPLOYEE IS COVERED BY THE
WORKERS' COMPENSATION PROVISIONS; AND TO AMEND
SECTION 42-1-520, RELATING TO DEFENSES AVAILABLE TO AN
EMPLOYER OPERATING UNDER THE WORKERS'
COMPENSATION PROVISIONS WHEN AN EMPLOYEE IS NOT
OPERATING UNDER THESE PROVISIONS, SO AS TO
SUBSTITUTE "OFFICER OF A CORPORATION" FOR
"EMPLOYEE".
Be it enacted by the General Assembly of the State of South
Carolina:
Average weekly wages
SECTION 1. 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 the allowance
is reported monthly by the trainee to his employer. `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. 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, as 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."
Injury and personal injury
SECTION 2. Section 42-1-160 of the 1976 Code is amended to read:
"Section 42-1-160. `Injury' and `personal injury' shall mean
only injury by accident arising out of and in the course of the
employment and shall not include a disease in any form, except when it
results naturally and unavoidably from the accident and except such
diseases as are compensable under the provisions of Chapter 11 of this
title. In construing this section an accident arising out of and in the
course of employment shall include employment of an employee of a
municipality outside the corporate limits of the municipality when the
employment was ordered by a duly authorized employee of the
municipality.
Stress arising out of and in the course of employment unaccompanied
by physical injury and resulting in mental illness or injury is not a
personal injury unless it is established that the stressful employment
conditions causing the mental injury were extraordinary and unusual in
comparison to the normal conditions of the employment.
Stress arising out of and in the course of employment unaccompanied
by physical injury is not considered compensable if it results from any
event or series of events which is incidental to normal
employer/employee relations including, but not limited to, personnel
actions by the employer such as disciplinary actions, work evaluations,
transfers, promotions, demotions, salary reviews, or terminations, except
when these actions are taken in an extraordinary and unusual
manner."
Compensation for personal injury or death
SECTION 3. Section 42-1-310 of the 1976 Code is amended to read:
"Section 42-1-310. Every employer and employee, except as
stated in this chapter, shall be presumed to have accepted the provisions
of this title respectively to pay and accept compensation for personal
injury or death by accident arising out of and in the course of the
employment and shall be bound thereby."
Scope of title
SECTION 4. Section 42-1-320 of the 1976 Code is amended to read:
"Section 42-1-320. The State, its municipal corporations and
political subdivisions thereof, and the employees of the State or its
municipal corporations and political subdivisions are subject to this
title."
Contract of service
SECTION 5. Section 42-1-460 of the 1976 Code is amended to read:
"Section 42-1-460. Every contract of service between any
employer and employee covered by this title, written or implied, in
operation or made or implied prior to July 17, 1936, shall be presumed to
continue, subject to the provisions of this title; and every such contract
made subsequent to said date shall be presumed to have been made
subject to the provisions of this title.
A like presumption shall exist equally in the case of all minors, unless
notice of the same character be given by or to the parent or guardian of
the minor."
Temporary disability
SECTION 6. 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 disability payments
immediately and may continue these payments for up to one hundred
fifty days from the date the injury or disease is reported without waiver
of any grounds for good faith denial. Upon making the first payment,
the employer immediately shall notify the commission, in accordance
with a form prescribed by the commission, that payment of compensation
has begun.
(B) Once temporary disability payments are commenced, the payments
may be terminated or suspended immediately at any time within the one
hundred fifty days if:
(1) the employee has returned to work; however, if the employee
does not remain at work for a minimum of fifteen days, temporary
disability payments must be resumed immediately; or
(2) the employee agrees that he is able to return to work and
executes the proper commission form indicating that he is able to return
to work; or
(3) a good faith investigation by the employer reveals grounds for
denial of the claim; or
(4) the employee has been released by the treating physician to work
without restriction and the employer offers comparable employment;
or
(5) 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;
or
(6) the employee refuses medical treatment, as provided in Section
42-15-60, or refuses an examination or evaluation, as provided in Section
42-15-80, and the termination or suspension of benefits continues until
the refusal ceases or the commission determines the refusal is justified
pursuant to either Section 42-15-60 or 42-15-80.
(C) An employee whose disability payments have been terminated or
suspended pursuant to this section may request a hearing to have the
payments reinstituted. The hearing must be held within sixty days of the
date of the employee's request for a hearing.
(D) If an employee has been declared as having reached maximum
medical improvement, the employer may request a hearing to address the
termination of temporary disability payments. The hearing must be held
within sixty days of the date of the employer's request for a hearing.
(E) An employer may request a hearing at any time to address
termination or reduction of temporary disability payments.
(F) After the one-hundred-fifty-day period has expired, the
commission shall provide by regulation the method and procedure by
which benefits may be suspended or terminated for any cause, but the
regulation 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 or the circumstances
identified in Section 42-9-260(B)(1) or (B)(2) are present. 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.
(G) Failure to comply with this section shall result in a twenty-five
percent penalty imposed upon the carrier or employer computed on the
amount of benefits withheld 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."
Assignments or compensation
SECTION 7. 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 account of services so rendered, unless the consideration or
gratuity is approved by the commission or the 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 fined not more than five
hundred dollars or imprisoned not more than one year, or both.
(D) Payment to an authorized health care provider for services shall be
made in a timely manner 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."
Employers' records and reports of injuries
SECTION 8. 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 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, and does not cause more than one lost workday or
permanency, the employer is not required to make a written report to the
commission or the employer's 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."
Deductibles
SECTION 9. The 1976 Code is amended by adding:
"Section 38-73-515. (A) Each insurer issuing a policy of
workers' compensation insurance shall offer, as a part of the policy or as
an optional endorsement to the policy, deductibles optional to the
policyholder for benefits payable under Title 42. Deductible amounts
offered must be disclosed fully to the prospective policyholder in writing
in the amount of one hundred dollars, two hundred dollars, three hundred
dollars, four hundred dollars, five hundred dollars, or increments of five
hundred dollars up to a maximum of two thousand five hundred dollars
for each compensable claim. The policyholder exercising the deductible
option shall choose only one deductible amount.
(B) If the policyholder exercises the option and chooses a deductible,
the insured employer is liable for the amount of the deductible for
benefits paid for each compensable claim of work injury suffered by an
employee. The insurer shall pay all or part of the deductible amount,
whichever is applicable to a compensable claim, to the person or provider
entitled to the benefits conferred by this chapter and then seek
reimbursement from the insured employer for the applicable deductible
amount. The payment or nonpayment of deductible amounts by the
insured employer to the insurer must be treated under the policy insuring
the liability for workers' compensation in the same manner as payment or
nonpayment of premiums.
(C) Optional deductibles must be offered in each policy insuring
liability for workers' compensation which is issued, delivered, issued for
delivery, or renewed after June 30, 1996, unless an insured employer and
insurer agree to renegotiate a workers' compensation insurance policy in
effect on July 1, 1996, so as to include a provision allowing for a
deductible.
(D) Premium reduction for deductibles must be determined before the
application of any experience modification, premium surcharge, or
premium discounts. To the extent that an employer's experience rating
or safety record is based on benefits paid, money paid by the insured
employer under a deductible as provided in this section must not be
included as benefits paid so as to harm the experience rating of the
employer.
(E) This section does not apply to employers who are approved to
self-insure against liability for workers' compensation or group
self-insurance funds for workers' compensation established pursuant to
the laws of this State."
Repeal
SECTION 10. Sections 42-1-330 and 42-1-340 of the 1976 Code are
repealed.
Repeal
SECTION 11. Sections 42-1-510 and 42-1-530 of the 1976 Code are
repealed on July 1, 1997.
Defenses
SECTION 12. Section 42-1-520 of the 1976 Code is amended to
read:
"Section 42-1-520. An officer of a corporation who elects not to
operate under this title, shall, in any action to recover damages for
personal injury or death brought against an employer accepting the
compensation provisions of this title, proceed at common law and the
employer may avail himself of the defenses of contributory negligence,
negligence of a fellow servant, and assumption of risk, as such defenses
exist at common law."
Time effective
SECTION 13. Except as may otherwise be provided in this act, this act
takes effect upon approval by the Governor. Employers who have filed
with the Workers' Compensation Commission a notice to reject the
provisions of Title 42 before the effective date of this act will have until
July 1, 1997, to comply with the provisions of this act relating to
insuring their workers' compensation liabilities. Any employer who has
rejected the terms of this title prior to approval of this act and has
procured another form of employee benefits insurance shall comply, not
later than July 1, 1997, with the provisions of this act relating to the
insuring of its workers' compensation liabilities. Furthermore, nothing in
this act shall affect or alter any cause of action, right, or claim accruing
before the effective date of this act; however, any such cause of action,
remedy, or claim accruing before the effective date of this act shall be
governed by the law prior to the effective date of this act.
Approved the 18th day of June, 1996. |