H 3709 Session 110 (1993-1994)
H 3709 General Bill, By J.J. Bailey, R.S. Corning, J.T. McElveen, Quinn and
Scott
Similar(S 540)
A Bill to amend Section 42-1-40, Code of Laws of South Carolina, 1976,
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 is calculated by taking the total wages paid for the
last four quarters immediately preceding the quarter in which the injury
occurred divided by fifty-two or by the actual number of weeks for which wages
were paid, whichever is less; to amend Section 42-1-160, relating to the
definitions of "injury" and "personal injury" for purposes of the Workers'
Compensation Law, so as to add provisions relating to work-related stress; to
amend Section 42-1-310, relating to the presumption of acceptance of the
provisions of Title 42 (Workers' Compensation), so as to delete certain
language and to define "employment" and "improvement or modification of real
property"; to amend the 1976 Code by adding Section 42-1-315 so as to provide
that officers of a corporation are employees under Title 42 and may reject
coverage by giving certain notice; to amend Section 42-1-320, relating to the
provision that public entities and their employees cannot exempt themselves
from Title 42 (Workers' Compensation), so as to delete provisions and provide
that the State, its municipal corporations and political subdivisions thereof,
and such employees, are subject to Title 42; to amend Section 42-1-330,
relating to waiver of exemption under the Workers' Compensation Law, so as to,
among other things, include officer of a corporation under the provisions of
this Section; to amend the 1976 Code by adding Section 42-1-335 so as to
provide, among other things, that an employer who is exempt from Title 42
elects to adopt the Title by obtaining Workers' Compensation insurance or by
operating under an approved self-insurance program; to amend Section 42-1-340,
relating to the effective date of and the manner of giving notice of
nonacceptance or waiver with respect to Title 42 (Workers' Compensation), so
as to delete certain language and to reference Section 42-1-315; to amend
Section 42-1-510, relating to defenses which are not available to an employer
who is not under Title 42 (Workers' Compensation), so as to provide that
comparative negligence does not apply, and further define "employer" for
purposes of defending an action at law; to amend Section 42-1-520, relating to
defenses which are available to an employer operating under Title 42 (Workers'
Compensation) when the employee is not so operating, so as to delete
references to "employee" and substitute therefor "officer of a corporation";
to amend the 1976 Code by adding Section 42-3-195 so as to provide, among
other things, that the Workers' Compensation Commission shall cooperate with
and provide information and statistics to any agency of the State or of the
United States charged with the duty of enforcing any law securing safety
against injury in any employment covered by Title 42 or with any state or
federal agency engaged in enforcing any laws to assure safety for employees;
to amend Section 42-5-40, relating to the penalty for failure to secure
payment of Workers' Compensation, so as to delete certain language and provide
a separate penalty for wilful or repeated violations; to amend Section
42-7-200, as amended, relating to the Workers' Compensation Uninsured
Employers' Fund, so as to provide that the remedy provided in this Section
shall not apply until all available administrative remedies under Title 42
against any insured statutory employer have been exhausted; to amend Section
42-9-220, relating to the manner in which Workers' Compensation shall be paid,
so as to provide that compensation must be paid by check and not a draft; to
amend Section 42-9-360, relating to assignments of Workers' Compensation and
exemptions from claims of creditors and taxes, so as to add certain
provisions, including a provision that it shall be unlawful for an authorized
health care provider to demand of or cause a demand to be made on a Workers'
Compensation claimant prior to the final adjudication of his claim, and
provide for certain monetary penalties to be paid to the Workers' Compensation
claimant; to amend the 1976 Code by adding Section 42-9-395 so as to add
provisions relating to settlement agreements providing for structured
settlements in Workers' Compensation cases; to amend Section 42-17-90,
relating to review of a Workers' Compensation award on a change of condition,
so as to provide for the entering of an order rather than the making of an
award, and add certain provisions, including a provision that the Workers'
Compensation Commission shall provide by regulation the method and procedure
by which an award or order commencing temporary compensation and entered
without an evidentiary hearing may be set aside for fraud; to amend Section
42-19-10, as amended, relating to employers' records and reports of injuries
under the Workers' Compensation Law, so as to delete the provisions of the
Section and add provisions, including a provision detailing the circumstances
under which an employer is not required to make a written report; to amend
Chapter 55 of Title 38, relating to conduct of insurance business, by adding
Article 5 so as to enact the "Omnibus Insurance Fraud and Reporting Immunity
Act", including provisions for, among other things, the establishment in the
Office of the Attorney General of an Insurance Fraud Division and the creation
of a felony offense and the provision of penalties therefor; to amend the 1976
Code by adding Section 42-9-440 so as to provide that the Workers'
Compensation Commission may refer all cases of suspected fraud to the
Insurance Fraud Division of the Office of the Attorney General for
investigation and prosecution, if warranted, pursuant to the Omnibus Insurance
Fraud and Reporting Immunity Act; to amend Section 16-1-10, as amended,
relating to crimes classified as felonies, so as to include the offense in
Section 38-55-540; and to repeal Section 42-1-380, relating to the waiver of
exemption by employer with respect to the mandatory provisions of Title 42
(Workers' Compensation) and Section 42-1-530, relating to defenses which are
not available to an employer when neither he not the employee is under Title
42.
03/15/93 House Introduced and read first time HJ-6
03/15/93 House Referred to Committee on Labor, Commerce and
Industry HJ-10
A BILL
TO AMEND SECTION 42-1-40, CODE OF LAWS OF SOUTH
CAROLINA, 1976, 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 IS CALCULATED BY TAKING THE TOTAL
WAGES PAID FOR THE LAST FOUR QUARTERS IMMEDIATELY
PRECEDING THE QUARTER IN WHICH THE INJURY
OCCURRED DIVIDED BY FIFTY-TWO OR BY THE ACTUAL
NUMBER OF WEEKS FOR WHICH WAGES WERE PAID,
WHICHEVER IS LESS; TO AMEND SECTION 42-1-160,
RELATING TO THE DEFINITIONS OF "INJURY" AND
"PERSONAL INJURY" FOR PURPOSES OF THE
WORKERS' COMPENSATION LAW, SO AS TO ADD PROVISIONS
RELATING TO WORK-RELATED STRESS; TO AMEND SECTION
42-1-310, RELATING TO THE PRESUMPTION OF ACCEPTANCE
OF THE PROVISIONS OF TITLE 42 (WORKERS'
COMPENSATION), SO AS TO DELETE CERTAIN LANGUAGE
AND TO DEFINE "EMPLOYMENT" AND
"IMPROVEMENT OR MODIFICATION OF REAL
PROPERTY"; TO AMEND THE 1976 CODE BY ADDING
SECTION 42-1-315 SO AS TO PROVIDE THAT OFFICERS OF A
CORPORATION ARE EMPLOYEES UNDER TITLE 42 AND MAY
REJECT COVERAGE BY GIVING CERTAIN NOTICE; TO AMEND
SECTION 42-1-320, RELATING TO THE PROVISION THAT
PUBLIC ENTITIES AND THEIR EMPLOYEES CANNOT EXEMPT
THEMSELVES FROM TITLE 42 (WORKERS' COMPENSATION),
SO AS TO DELETE PROVISIONS AND PROVIDE THAT THE
STATE, ITS MUNICIPAL CORPORATIONS AND POLITICAL
SUBDIVISIONS THEREOF, AND SUCH EMPLOYEES, ARE
SUBJECT TO TITLE 42; TO AMEND SECTION 42-1-330,
RELATING TO WAIVER OF EXEMPTION UNDER THE
WORKERS' COMPENSATION LAW, SO AS TO, AMONG OTHER
THINGS, INCLUDE OFFICER OF A CORPORATION UNDER THE
PROVISIONS OF THIS SECTION; TO AMEND THE 1976 CODE BY
ADDING SECTION 42-1-335 SO AS TO PROVIDE, AMONG
OTHER THINGS, THAT AN EMPLOYER WHO IS EXEMPT FROM
TITLE 42 ELECTS TO ADOPT THE TITLE BY OBTAINING
WORKERS' COMPENSATION INSURANCE OR BY OPERATING
UNDER AN APPROVED SELF-INSURANCE PROGRAM; TO
AMEND SECTION 42-1-340, RELATING TO THE EFFECTIVE
DATE OF AND THE MANNER OF GIVING NOTICE OF
NONACCEPTANCE OR WAIVER WITH RESPECT TO TITLE 42
(WORKERS' COMPENSATION), SO AS TO DELETE CERTAIN
LANGUAGE AND TO REFERENCE SECTION 42-1-315; TO
AMEND SECTION 42-1-510, RELATING TO DEFENSES WHICH
ARE NOT AVAILABLE TO AN EMPLOYER WHO IS NOT UNDER
TITLE 42 (WORKERS' COMPENSATION), SO AS TO PROVIDE
THAT COMPARATIVE NEGLIGENCE DOES NOT APPLY, AND
FURTHER DEFINE "EMPLOYER" FOR PURPOSES OF
DEFENDING AN ACTION AT LAW; TO AMEND SECTION
42-1-520, RELATING TO DEFENSES WHICH ARE AVAILABLE
TO AN EMPLOYER OPERATING UNDER TITLE 42 (WORKERS'
COMPENSATION) WHEN THE EMPLOYEE IS NOT SO
OPERATING, SO AS TO DELETE REFERENCES TO
"EMPLOYEE" AND SUBSTITUTE THEREFOR
"OFFICER OF A CORPORATION"; TO AMEND THE
1976 CODE BY ADDING SECTION 42-3-195 SO AS TO PROVIDE,
AMONG OTHER THINGS, THAT THE WORKERS'
COMPENSATION COMMISSION SHALL COOPERATE WITH AND
PROVIDE INFORMATION AND STATISTICS TO ANY AGENCY
OF THE STATE OR OF THE UNITED STATES CHARGED WITH
THE DUTY OF ENFORCING ANY LAW SECURING SAFETY
AGAINST INJURY IN ANY EMPLOYMENT COVERED BY TITLE
42 OR WITH ANY STATE OR FEDERAL AGENCY ENGAGED IN
ENFORCING ANY LAWS TO ASSURE SAFETY FOR
EMPLOYEES; TO AMEND SECTION 42-5-40, RELATING TO THE
PENALTY FOR FAILURE TO SECURE PAYMENT OF WORKERS'
COMPENSATION, SO AS TO DELETE CERTAIN LANGUAGE
AND PROVIDE A SEPARATE PENALTY FOR WILFUL OR
REPEATED VIOLATIONS; TO AMEND SECTION 42-7-200, AS
AMENDED, RELATING TO THE WORKERS' COMPENSATION
UNINSURED EMPLOYERS' FUND, SO AS TO PROVIDE THAT
THE REMEDY PROVIDED IN THIS SECTION SHALL NOT APPLY
UNTIL ALL AVAILABLE ADMINISTRATIVE REMEDIES UNDER
TITLE 42 AGAINST ANY INSURED STATUTORY EMPLOYER
HAVE BEEN EXHAUSTED; TO AMEND SECTION 42-9-220,
RELATING TO THE MANNER IN WHICH WORKERS'
COMPENSATION SHALL BE PAID, SO AS TO PROVIDE THAT
COMPENSATION MUST BE PAID BY A CHECK AND NOT A
DRAFT; TO AMEND SECTION 42-9-360, RELATING TO
ASSIGNMENTS OF WORKERS' COMPENSATION AND
EXEMPTIONS FROM CLAIMS OF CREDITORS AND TAXES, SO
AS TO ADD CERTAIN PROVISIONS, INCLUDING A PROVISION
THAT IT SHALL BE UNLAWFUL FOR AN AUTHORIZED
HEALTH CARE PROVIDER TO DEMAND OF OR CAUSE A
DEMAND TO BE MADE ON A WORKERS' COMPENSATION
CLAIMANT PRIOR TO THE FINAL ADJUDICATION OF HIS
CLAIM, AND PROVIDE FOR CERTAIN MONETARY PENALTIES
TO BE PAID TO THE WORKERS' COMPENSATION CLAIMANT;
TO AMEND THE 1976 CODE BY ADDING SECTION 42-9-395 SO
AS TO ADD PROVISIONS RELATING TO SETTLEMENT
AGREEMENTS PROVIDING FOR STRUCTURED SETTLEMENTS
IN WORKERS' COMPENSATION CASES; TO AMEND SECTION
42-17-90, RELATING TO REVIEW OF A WORKERS'
COMPENSATION AWARD ON A CHANGE OF CONDITION, SO
AS TO PROVIDE FOR THE ENTERING OF AN ORDER RATHER
THAN THE MAKING OF AN AWARD, AND ADD CERTAIN
PROVISIONS, INCLUDING A PROVISION THAT THE WORKERS'
COMPENSATION COMMISSION SHALL PROVIDE BY
REGULATION THE METHOD AND PROCEDURE BY WHICH AN
AWARD OR ORDER COMMENCING TEMPORARY
COMPENSATION AND ENTERED WITHOUT AN EVIDENTIARY
HEARING MAY BE SET ASIDE FOR FRAUD; TO AMEND
SECTION 42-19-10, AS AMENDED, RELATING TO EMPLOYERS'
RECORDS AND REPORTS OF INJURIES UNDER THE WORKERS'
COMPENSATION LAW, SO AS TO DELETE THE PROVISIONS OF
THE SECTION AND ADD PROVISIONS, INCLUDING A
PROVISION DETAILING THE CIRCUMSTANCES UNDER WHICH
AN EMPLOYER IS NOT REQUIRED TO MAKE A WRITTEN
REPORT; TO AMEND CHAPTER 55 OF TITLE 38, RELATING TO
CONDUCT OF INSURANCE BUSINESS, BY ADDING ARTICLE 5
SO AS TO ENACT THE "OMNIBUS INSURANCE FRAUD
AND REPORTING IMMUNITY ACT", INCLUDING
PROVISIONS FOR, AMONG OTHER THINGS, THE
ESTABLISHMENT IN THE OFFICE OF THE ATTORNEY
GENERAL OF AN INSURANCE FRAUD DIVISION AND THE
CREATION OF A FELONY OFFENSE AND THE PROVISION OF
PENALTIES THEREFOR; TO AMEND THE 1976 CODE BY
ADDING SECTION 42-9-440 SO AS TO PROVIDE THAT THE
WORKERS' COMPENSATION COMMISSION MAY REFER ALL
CASES OF SUSPECTED FRAUD TO THE INSURANCE FRAUD
DIVISION OF THE OFFICE OF THE ATTORNEY GENERAL FOR
INVESTIGATION AND PROSECUTION, IF WARRANTED,
PURSUANT TO THE OMNIBUS INSURANCE FRAUD AND
REPORTING IMMUNITY ACT; TO AMEND SECTION 16-1-10, AS
AMENDED, RELATING TO CRIMES CLASSIFIED AS FELONIES,
SO AS TO INCLUDE THE OFFENSE IN SECTION 38-55-540; AND
TO REPEAL SECTION 42-1-380, RELATING TO THE WAIVER OF
EXEMPTION BY EMPLOYER WITH RESPECT TO THE
MANDATORY PROVISIONS OF TITLE 42 (WORKERS'
COMPENSATION) AND SECTION 42-1-530, RELATING TO
DEFENSES WHICH ARE NOT AVAILABLE TO AN EMPLOYER
WHEN NEITHER HE NOR THE EMPLOYEE IS UNDER TITLE 42.
Be it enacted by the General Assembly of the State of South Carolina:
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 such
allowance is reported monthly by such trainee to his employer,
divided by fifty-two Average weekly wage is 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 2. Section 42-1-160 of the 1976 Code is amended by
adding:
"Work-related stress 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.
Work-related stress unaccompanied by physical injury is not
considered compensable if it results from any event 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 such actions are taken in an extraordinary and
unusual manner."
SECTION 3. Section 42-1-310 of the 1976 Code is amended to read:
"Section 42-1-310. (A) 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, unless
he shall have given, prior to any accident resulting in injury or death,
notice to the contrary in the manner provided in S 42-1-340.
(B) `Employment' subject to the provisions of this title means
any service performed by an employee for the person employing him.
(1) Employment includes all employments in which four or more
employees are employed by the same employer or, with respect to
improvement or modification of real property, all employment in which
one or more direct or indirect employees are employed by the same
employer.
(2) `Improvement or modification of real property' means
for-profit activities involved in the carrying out of any construction,
building, renovation, alteration, moving, clearing, filling, excavation, or
substantial improvement in the size or use of any structure or the
appearance of any land. When appropriate to the context, `improvement
or modification of real property' refers to the act of construction or the
result of construction. However `improvement or modification of real
property' shall not mean a landowner's act of construction or the result
of construction upon his own premises, provided such premises are not
intended to be sold or resold.
(3) With respect to employment as referenced in subsection
(B)(2), the employer shall maintain proof of workers' compensation
coverage for its direct and indirect employees. Proof of coverage is a
contract of workers' compensation insurance issued to the employer for
coverage for the employer's direct and indirect employees."
SECTION 4. The 1976 Code is amended by adding:
"Section 42-1-315. Officers of a corporation are employees
under this title and may reject coverage under this title by giving notice
as prescribed by the commission."
SECTION 5. Section 42-1-320 of the 1976 Code is amended to read:
"Section 42-1-320. Neither the State nor any municipal
corporation, nor any political subdivision thereof, nor any employee of
the State or of any such corporation or subdivision may reject the
provisions of this Title relative to payment and acceptance of
compensation and the provisions of SS 42-1-330, 42-1-340, 42-1-380,
42-1-390 and 42-1-460 to 42-1-530 shall not apply to them.
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."
SECTION 6. Section 42-1-330 of the 1976 Code is amended to read:
"Section 42-1-330. Either an An
employer or employee officer of a corporation who has
exempted himself by proper notice from the operation of this title may
at any time waive such exemption and thereby accept the provisions of
this title by giving notice as provided in Section 42-1-340
prescribed by the commission."
SECTION 7. The 1976 Code is amended by adding:
"Section 42-1-335. An employer who is exempt from this
title elects to adopt the title by obtaining workers' compensation
insurance or by operating under an approved self-insurance program. If
an employer exempt from this title adopts this title, the employer is
deemed to continue to operate under this title until a notice to the
contrary is filed in accordance with Section 42-1-390."
SECTION 8. Section 42-1-340 of the 1976 Code is amended to read:
"Section 42-1-340. The notices referred to in Sections
42-1-310 42-1-315 and 42-1-330 shall not be effective
as to any accident resulting in injury or death that occurs within thirty
days after the giving of any such notice; provided, that if any such
accident occurs less than thirty days after the date of employment, notice
of such exemption given at the time of employment shall be effective as
to such accident. Any such notice shall be in writing or print, in
substantially the form prescribed by the commission, and shall be
given by the employer by posting it in a conspicuous place in the shop,
plant, office, room or place in which the employee is employed or by
serving it personally upon him and shall be given by the employee
by sending it in registered letter, addressed to the employer at his
last-known residence or place of business, or by giving it personally to
the employer or any of his agents upon whom summons in a civil action
may be served under the laws of the State.
A copy of the notice in the prescribed form shall be filed with the
commission. In any suit by an employer or an employee who
has exempted himself by proper notice from the application of this title
a copy of such notice duly certified by the commission shall be
admissible in evidence as proof of such exemption."
SECTION 9. Section 42-1-510 of the 1976 Code is amended to read:
"Section 42-1-510. An employer who elects not to operate
under is not exempt from this title and who fails to
insure his workers' compensation liabilities shall not, in any suit at
law instituted by an employee subject to this title to recover damages for
personal injury or death by accident, be permitted to defend any such
suit at law upon any or all of the following grounds:
(1) that the employee was negligent; nor shall comparative
negligence apply;
(2) that the injury was caused by the negligence of a fellow
employee; or
(3) that the employee had assumed the risk of the injury."
SECTION 10. Section 42-1-520 of the 1976 Code is amended to
read:
"Section 42-1-520. An officer of a corporation
employee 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."
SECTION 11. The 1976 Code is amended by adding:
"Section 42-3-195. (A) The commission shall cooperate
with and provide information and statistics to any agency of this State
or of the United States charged with the duty of enforcing any law
securing safety against injury in any employment covered by this title or
with any state or federal agency engaged in enforcing any laws to assure
safety for employees.
(B) Upon trial of any action other than a workers' compensation
claim, such information shall not be placed in evidence or be permitted
to be argued to the court or the jury."
SECTION 12. The first paragraph of Section 42-5-40 of the 1976
code is amended to read:
"Any employer required to secure the payment of compensation
under this title who refuses or neglects to secure such compensation
shall be punished by a fine of ten cents for each employee at the time
of the insurance becoming due, but not less than one dollar nor more
than fifty dollars for each day of such refusal or neglect, or, in
cases of wilful or repeated violations, one hundred dollars for each day
the employer fails to secure the necessary coverage, and until the
same ceases, and he shall be liable during continuance of such refusal or
neglect to an employee either for compensation under this title or at law
in an action instituted by the employee or his personal representative
against such employer to recover damages for personal injury or death
by accident and in any such action such employer shall not be permitted
to defend upon any of the grounds mentioned in Section
42-1-510."
SECTION 13. The second paragraph of Section 42-7-200(A) of the
1976 Code, as last amended by Act 589 of 1990, is further amended to
read:
"When an employee makes a claim for benefits pursuant to Title
42 and the State Workers' Compensation Commission determines that
the employer is subject to Title 42 and is operating without insurance or
as an unqualified self-insurer, the commission shall notify the fund of
the claim. The fund shall pay or defend the claim as it considers
necessary in accordance with the provisions of Title 42. The remedy
provided in this section shall not apply until all available administrative
remedies under this title against any insured statutory employer have
been exhausted."
SECTION 14. Section 42-9-220 of the 1976 Code is amended to
read:
"Section 42-9-220. (A) Compensation under this
title shall be paid periodically, promptly, and directly to the
person entitled thereto, unless otherwise specifically provided.
(B) Compensation must be paid by a check and not a
draft."
SECTION 15. 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 demand of or cause a demand to be made on a workers' compensation
claimant prior to the final adjudication of his 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 shall result in a penalty of five
hundred dollars payable to the workers' compensation claimant.
(C) It shall be unlawful for an authorized health care provider to
demand of or cause a demand to be made on a workers' compensation
claimant for charges in excess of the fee provided by the commission's
applicable fee schedule or to charge any fee in excess of the fee provided
by such schedule. Violation of this section shall result in a penalty of
one thousand dollars payable to the workers' compensation claimant.
(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 16. The 1976 Code is amended by adding:
"Section 42-9-395. If a settlement agreement provides for a
structured settlement to be paid by a party other than the self-insured
employer or the insurer, then the agreement shall contain a provision
that the self-insured employer or insurer will be liable for the agreement
in the event of the default or failure of that third party to pay."
SECTION 17. Section 42-17-90 of the 1976 Code is amended to
read:
"Section 42-17-90. (A) Upon its own motion or
upon the application of any party in interest on the ground of a change
in condition, the commission may review any award and on such review
may enter an order make an award ending,
diminishing, or increasing the compensation previously
awarded, subject to the maximum or minimum provided in this title, and
shall immediately send to the parties a copy of the order changing the
award. No such review shall affect such award as regards any monies
paid and no such review shall be made after twelve months from the date
of the last payment of compensation pursuant to an award under this
title.
(B) The commission shall provide by regulation the method and
procedure by which an award or order commencing temporary
compensation and entered without an evidentiary hearing may be set
aside for fraud but such regulation must provide for an evidentiary
hearing. Further, the commission may not entertain any application to
set aside for fraud an award or order commencing temporary
compensation and entered without an evidentiary hearing unless and
until the employer or carrier is current with all payments due.
(C) The filing required by this section may be made by certified
mail, return receipt requested, in which case the date of filing is the date
of mailing as shown by the return receipt and the same shall constitute
filing within the time period set forth in this section."
SECTION 18. 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 19. A. Chapter 55 of Title 38 of the 1976 Code is
amended by adding:
"Article 5
Insurance Fraud and
Reporting Immunity
Section 38-55-510. This article is known and may be cited as the
`Omnibus Insurance Fraud and Reporting Immunity Act'.
Section 38-55-520. The purpose of this article is to define what
constitutes insurance fraud; to facilitate the detection of insurance fraud;
to allow reporting of suspected insurance fraud; to grant immunity for
reporting suspected insurance fraud; to prescribe penalties for insurance
fraud; to require restitution for victims of insurance fraud; and to
establish a division within the Office of the Attorney General to
prosecute insurance fraud.
Section 38-55-530. As used in this article:
(a) `Authorized agency' means any duly constituted criminal
investigative department or agency of the United States or of this State;
the Department of Insurance; the Department of Highways and Public
Transportation; the Workers' Compensation Commission; the Office of
the Attorney General of this State; or the prosecuting attorney of any
judicial circuit, county, municipality, or political subdivision of this
State or of the United States, and their respective employees or
personnel acting in their official capacity.
(b) `Insurer' shall have the meaning set forth in Section 38-1-20(25)
and includes any authorized insurer, self-insurer, reinsurer, broker,
producer, or any agent thereof.
(c) `Person' means any natural person, company, corporation,
unincorporated association, partnership, professional corporation, or
other legal entity and includes any applicant, policyholder, claimant,
medical provider, vocational rehabilitation provider, attorney, agent,
insurer, fund, or advisory organization.
(d) `Insurance fraud' means any fraudulent conduct, act, or omission
committed by any person in connection with an insurance transaction
which is designed to obtain and results in an undeserved economic
advantage or benefit if such conduct, act, or omission is done knowingly
or with an intent to injure, defraud, or deceive.
Section 38-55-540. Any person or insurer who commits an insurance
fraud, and any other person knowingly, with an intent to injure, defraud
or deceive, wo assists, abets, solicits, or conspires with such person or
insurer to commit an insurance fraud, shall be guilty of a felony and,
upon conviction thereof, shall be punished by a fine not to exceed fifty
thousand dollars or by imprisonment for a term not to exceed five years,
or by both such fine and imprisonment.
When appropriate, any person or insurer convicted of an insurance
fraud may be required to make full restitution of any economic benefit
or advantage which has been obtained through insurance fraud.
Section 38-55-550. (a) The Attorney General, upon receipt of any
allegation of insurance fraud, is empowered to:
(1) perform investigations;
(2) prosecute persons determined to be in violation of Section
38-55-540 in a court of appropriate jurisdiction; and
(3) collect fines and restitution ordered by such courts.
(b) There is established in the office of the Attorney General a
division to be known as the Insurance Fraud Division, which shall
prosecute insurance fraud. The Insurance Fraud Division of the Office
of Attorney General must be funded by an appropriation of not less than
two hundred thousand dollars annually from the general revenues of the
State derived from the insurance premium taxes collected by the
Department of Insurance and/or from fines assessed under Section
38-55-540 which shall be deposited in the general revenue fund to the
credit of the Office of the Attorney General to offset the costs of this
program.
(c) Where deemed appropriate, the Attorney General may use the
Setoff Debt Collection Act to collect fines and restitution ordered as a
result of actions brought pursuant to Section 38-55-540.
Section 38-55-560. (a) Any person or insurer having reason to
believe that another has committed an insurance fraud or has knowledge
of a suspected insurance fraud shall, for purposes of reporting and
investigation, notify an authorized agency of the knowledge or belief
and provide any additional information within his possession relative
thereto.
(b) Upon request by an authorized agency, any person or insurer
may release to such authorized agency any or all information relating to
any suspected insurance fraud, including, but not limited to:
(1) insurance policy information relevant to the investigation,
including any application for such a policy;
(2) policy premium payment records, audits, or other documents
which are available;
(3) history of previous claims, payments, fees, commissions,
service bills, or other documents which are available; and
(4) other information relating to the investigation of the suspected
insurance fraud.
(c) Any authorized agency provided with or obtaining information
relating to a suspected insurance fraud as provided for above may
release or provide the information to any other authorized agency. The
Department of Insurance, the Department of Highways and Public
Transportation, and the Workers' Compensation Commission shall refer,
but not adjudicate, all cases of suspected or reported insurance fraud to
the Insurance Fraud Division of the Office of Attorney General for
appropriate investigation or prosecution, or both.
(d) Except as otherwise provided by law, any information furnished
pursuant to this section shall be privileged and shall not be part of any
public record. Any information or evidence furnished to an authorized
agency pursuant to this section shall not be subject to subpoena or
subpoena duces tecum in any civil or criminal proceeding unless, after
reasonable notice to any person, insurer, or authorized agency which has
an interest in the information and after a subsequent hearing, a court of
competent jurisdiction determines that the public interest and any
ongoing investigation will not be jeopardized by obeyance of the
subpoena or subpoena duces tecum.
Section 38-55-570. (a) No person, insurer, or authorized agency,
when acting without malice or in good faith, shall be subject to any civil
or criminal liability by virtue of filing reports, cooperating with
investigations by any authorized agency, or furnishing other
information, whether written or oral, and whether in response to a
request by an authorized agency or upon their own initiative, concerning
any suspected, anticipated, or completed insurance fraud, when such
reports or information are provided to or received by any authorized
agency.
(b) Nothing herein abrogates or modifies in any way common law
or statutory privilege or immunity heretofore enjoyed by any person,
insurer, or authorized agency.
(c) Nothing herein limits the liability of any person or insurer who,
with malice or in bad faith, makes a report of suspected fraud under the
provisions of this article."
B. The 1976 Code is amended by adding:
"Section 42-9-440. The commission may refer all cases of
suspected fraud to the Insurance Fraud Division of the Office of the
Attorney General for investigation and prosecution, if warranted,
pursuant to the Omnibus Insurance Fraud and Reporting Immunity
Act."
SECTION 20. The felony created by Section 38-55-540 of the 1976
Code, as contained in Section 19 of this act, is added to the list of crimes
classified as felonies pursuant to Section 16-1-10 of the 1976 Code.
SECTION 21. Section 42-1-380 and 42-1-530 of the 1976 Code are
repealed.
SECTION 22. Except as may otherwise be provided in this act, this
act takes effect upon approval by the Governor.
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