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Current Status Bill Number:View additional legislative information at the LPITS web site.652 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19990324 Primary Sponsor:Hayes All Sponsors:Hayes Drafted Document Number:l:\council\bills\nbd\11226jm99.doc Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Workers' Compensation, Occupational Diseases, Asbestosis and silicosis, compensation for injury or death History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ Senate 19990324 Introduced, read first time, 11 SJ referred to Committee Versions of This Bill
TO DESIGNATE SECTIONS 42-11-10 THROUGH 42-11-200, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OCCUPATIONAL DISEASES UNDER THE SOUTH CAROLINA WORKERS' COMPENSATION LAW, AS ARTICLE 1 OF CHAPTER 11 OF TITLE 42, ENTITLED "GENERAL PROVISIONS"; TO AMEND CHAPTER 11 OF TITLE 42, RELATING TO OCCUPATIONAL DISEASES UNDER THE WORKERS' COMPENSATION LAW, BY ADDING ARTICLE 3 SO AS TO ENACT PROVISIONS FOR THE COMPENSATION OF ASBESTOSIS AND SILICOSIS, INCLUDING PROVISIONS FOR CERTAIN MISDEMEANOR OFFENSES AND PENALTIES THEREFORE; AND TO AMEND ARTICLE 1, CHAPTER 11 OF TITLE 42, RELATING TO GENERAL PROVISIONS REGARDING OCCUPATIONAL DISEASES UNDER THE WORKERS' COMPENSATION LAW, BY ADDING SECTION 42-11-75 SO AS TO PROVIDE THAT, NOTWITHSTANDING THE PROVISIONS OF SECTION 42-11-60 OR SECTION 42-11-70 OR ANY OTHER PROVISION OF ARTICLE 1, CHAPTER 11 OF TITLE 42, COMPENSATION FOR INJURY OR DEATH DUE TO ASBESTOSIS OR SILICOSIS SHALL BE GOVERNED BY ARTICLE 3 OF CHAPTER 11 OF TITLE 42.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Sections 42-11-10 through 42-11-200 of the 1976 Code are designated as Article 1 of Chapter 11 of Title 42 and entitled "General Provisions".
SECTION 2. Chapter 11 of Title 42 of the 1976 Code is amended by adding;
Section 42-11-310. The provisions of this article are applicable to all cases of the occupational diseases asbestosis and silicosis.
Section 42-11-320. The term 'disablement' as used in this article as applied to cases of asbestosis and silicosis means the event of becoming actually incapacitated because of asbestosis or silicosis to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure to asbestosis or silicosis; but in all other cases of occupational disease 'disablement' shall be equivalent to 'disability' as defined in Section 42-11-20.
Section 42-11-330. The term 'disability' as used in this article means the state of being incapacitated as the term is used in defining 'disablement' in Section 42-11-20.
Section 42-11-340. The provisions of this article shall apply only to cases of asbestosis or silicosis in which the last exposure in an occupation subject to the hazards of such diseases occurred on or after July 1, 2000.
Section 42-11-350. In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of asbestosis or silicosis, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.
For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious; provided, however, that in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to the hazards of asbestosis or silicosis, and if after the insurance carrier goes off the risk said employee is further exposed to the hazards of asbestosis or silicosis, although not so exposed for a period of thirty days or parts thereof so as to constitute a further injurious exposure, such carrier shall, nevertheless, be liable.
Section 42-11-360. The right to compensation for asbestosis or silicosis shall be barred unless a claim is filed with the South Carolina Workers' Compensation Commission, hereinafter the 'commission', within two years after death, disability, or disablement as the case may be.
Section 42-11-370. Medical compensation shall be paid by the employer in cases in which awards are made for disability or damage to organs as a result of asbestosis or silicosis after bills for same have been approved by the commission.
In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the commission may order such further treatments as may, in the discretion of the commission, be necessary.
Section 42-11-380. The compulsory examination of employees and prospective employees as herein provided applies only to persons engaged or about to engage in an occupation which has been found by the commission to expose them to the hazards of asbestosis or silicosis, or both. The commission shall designate by order each industry found subject to any such hazard and shall notify the employers therein before such examinations are required. On and after July 1, 2000, it shall be the duty of every employer, in the conduct of whose business his employees or any of them are subjected to the hazard of asbestosis or silicosis, or both, to provide prior to employment necessary examinations of all new employees for the purpose of ascertaining if any of them are in any degree affected by asbestosis or silicosis or peculiarly susceptible thereto. Every such employer shall from time to time, as ordered by the commission, provide similar examinations for all of his employees whose employment exposes them to the hazards of asbestosis or silicosis. At least one member of the advisory medical committee or other physician designated by the commission shall make such examinations or be present when any such examination is made. The refusal of an employee to submit to any such examination shall bar such employee from compensation or other benefits provided by this article in the event of disablement or death resulting from exposure to the hazards of asbestosis or silicosis subsequent to such refusal. It shall be the duty of the commission to make or order inspections of employments and to keep a record of all employments subjecting employees to the hazards of asbestosis or silicosis, or both, and to notify the employer in any case where such hazard shall have been found to exist. The unreasonable failure of an employer to provide for any examination or his unreasonable refusal to permit any inspection herein authorized shall constitute a misdemeanor and shall be punishable by a fine of one thousand dollars or imprisonment for sixty days, or both.
Section 42-11-390. When an employee and the commission are advised by the Department of Health and Environmental Control that an employee has asbestosis or silicosis, the employer shall be notified by the commission, and the employee, when ordered by the commission, shall go to a place designated by the commission and submit to X-rays and a physical examination by the advisory medical committee, at least one of whom shall conduct the examination, and the member or members of the advisory medical committee conducting the examination shall forward the X-rays and findings to the member or members of the committee not present for the physical examination in such amounts as shall be directed by the commission. Within thirty days after the completion of the examination, the advisory medical committee shall make a written report signed by all of its members setting forth:
(1) The X-rays and clinical procedures used by the committee in arriving at its findings.
(2) Whether or not the claimant has contracted asbestosis or silicosis.
(3) The committee's opinion expressed in percentages of the impairment of the employee's ability to perform normal labor in the same or any other employment.
(4) Any other matter deemed pertinent by the committee.
When a competent physician certifies to the commission that the employee's physical condition is such that his movement to the place of examination ordered by the commission would be harmful or injurious to the health of the employee, the commission shall cause the examination of the employee to be make by the advisory medial committee as herein provided at some place in the vicinity of the residence of the employee suitable for the purposes of making such examination.
Section 42-11-400. The advisory medical committee shall file its report in triplicate with the commission, which shall send one copy thereof to the claimant and one copy thereof to the employer by registered mail or certified mail. Unless within thirty days from receipt of the copy of said report the claimant and employer, or either of them, shall request the commission in writing to set the case for hearing for the purpose of examining and cross-examining the members of the advisory medical committee respecting the report of said committee, and for the purpose of introducing additional testimony, said report shall become a part of the record of the case and shall be accepted by the commission as expert medical testimony to be considered as such and in connection with all the evidence in the case in arriving at its decision.
Section 42-11-410. As soon as practicable after the expiration of one year following the initial examination by the advisory medical committee and when ordered by the commission, the employee shall again appear before the advisory medical committee, at least one of whom shall conduct the examination, and the member or members of the advisory medical committee conducting the examination shall forward the X-rays and findings to the member or members of the committee not present for the physical examination. Within thirty days after the completion of the examination, the advisory medical committee shall make a written report to the commission signed by all of its members, setting forth any change since the first report on the employee's condition which is due to asbestosis or silicosis, said report to be filed in triplicate with the commission, which shall send one copy thereof to the claimant and one copy to the employer by registered mail or certified mail. The claimant and employer, or either of them, shall have the right only at the final hearing to examine or cross-examine the members of the advisory medical committee respecting the second report of the committee.
Section 42-11-420. As soon as practicable after the expiration of two years from the first examination and when ordered by the commission, the employee shall appear before the advisory medical committee, or at least two of them, for final X-rays and physical examination. Upon completion of this examination and within thirty days, the advisory medical committee shall make a written report setting forth:
(1) The X-rays and clinical procedures used by the committee.
(2) To what extent, if any, has the damage to the employee's lungs due to asbestosis or silicosis changed since the first examination.
(3) The opinion of the committee, expressed in percentages, with respect to the extent of impairment of the employee's ability to earn in the same or any other employment the wages which the employee was receiving at the time of his last injurious exposure to asbestosis or silicosis.
(4) Any other matter deemed pertinent by the committee.
The report shall be filed in triplicate with the commission which shall send one copy thereof to the claimant and one copy to the employer by registered mail or certified mail.
Section 42-11-430. (A) After the employer and employee have received notice of the first committee report, the commission, unless it has already approved an agreement between the employer and employee, shall set the matter for hearing at a time and place to be decided by it, to hear any controverted questions, determine if and to whom liability attaches, and where appropriate, file a written opinion with its findings of fact and conclusions of law and cause its award to be issued thereon, all of which shall be subject to modification as provided by this title.
(B) If the commission finds at the first hearing that the employee has either asbestosis or silicosis or if the parties enter into an agreement to the effect that the employee has silicosis or asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis or silicosis, and if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the commission, neither he, his dependents, his personal representative, nor any other person shall be entitled to any compensation for disablement or death resulting from asbestosis or silicosis; provided, that if the employee is removed from the industry the employer shall pay or cause to be paid as in this subsection provided to the employee affected by such asbestosis or silicosis a weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages before removal from the industry, but not more than the amount established annually to be effective October first as provided in this title or less than thirty dollars a week, which compensation shall continue for a period of one hundred four weeks. Payments made under this subsection shall be credited on the amounts payable under any final award in the cause.
Section 42-11-440. After receipt by the employer and employee of the advisory medical committee's third report, the commission, unless it has approved an agreement between the employee and employer, shall set a final hearing in the cause, at which it shall receive all competent evidence bearing on the cause, and shall make a final disposition of the case, determining what compensation, if any, the employee is entitled to receive in addition to the one hundred four weeks already received.
Where the incapacity for work resulting from asbestosis or silicosis is found to be total, the employer shall pay, or cause to be paid, to the injured employee during such total disability a weekly compensation in accordance with Section 42-11-100.
When the incapacity for work resulting from asbestosis or silicosis is partial, the employer shall pay, or cause to be paid, to the affected employee, a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wages at the time of his last injurious exposure, and the average weekly wages which he is able to earn thereafter, but not more than the amount established annually to be effective October first as provided in this title, a week, and provided that the total compensation so paid shall not exceed a period of one hundred ninety-six weeks, in addition to the one hundred four weeks for which the employee has already been compensated.
If death results from asbestosis or silicosis within two years from the date of last exposure, or if death results from asbestosis or silicosis, or from a secondary infection or diseases developing from asbestosis or silicosis within three hundred fifty weeks from the date of last exposure and while the employee is entitled to compensation for disablement due to asbestosis or silicosis, either partial or total, then in either of these events, the employer shall pay, or cause to be paid compensation in accordance with Section 42-11-100.
If the employee has asbestosis or silicosis and dies from any other cause, the employer shall pay, or cause to be paid compensation for any remaining portion of the one hundred four weeks specified in Section 42-11-100 for which the employee has not previously been paid compensation, and in addition shall pay compensation for such number of weeks as the percentage of disability of the employee bears to one hundred ninety-six weeks. If the employee was totally disabled as a result of asbestosis or silicosis, compensation shall be paid for any remaining portion of the one hundred four weeks for which the employee has not previously been paid compensation, and in addition shall be paid for an additional three hundred weeks.
Section 41-11-450. An employee who has been compensated as an alternative to forced change of occupation, may, subject to the approval of the commission, waive in writing his right to further compensation for any aggravation of his condition that may result from his continuing in an occupation exposing him to the hazards of asbestosis or silicosis, in which case payment of all compensation awarded previous to the date the waiver as approved by the commission shall bar any further claims by the employee, or anyone claiming through him, provided, that in the event of total disablement or death as a result of asbestosis or silicosis with which the employee was so affected, compensation shall nevertheless be payable, but in no case, whether for disability of death or both, for a longer period than one hundred weeks in addition to the one hundred four weeks already paid. Such written waiver must be filed with the commission, and the commission shall keep a record of each waiver, which record shall be open to the inspection of any interested person.
Section 42-11-460. The word 'silicosis' shall mean the characteristic fibrotic condition of the lungs caused by the inhalation of dust of silica or silicates. 'Asbestosis' shall mean a characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust.
Section 42-11-470. Compensation shall not be payable for disability or death due to silicosis or asbestosis unless the employee shall have been exposed to the inhalation of dust of silica or silicates or asbestos dust in employment for a period of not less than two years in this State, provided no part of such period of two years shall have been more than ten years prior to the last exposure.
Section 42-11-480. Except as herein otherwise provided, in case of disablement or death from silicosis or asbestosis, compensation shall be payable in accordance with the provisions of this title.
Section 42-11-490. In case of disablement or death due primarily from silicosis or asbestosis and complicated with tuberculosis of the lungs compensation shall be payable as hereinbefore provided, except that the rate of payments may be reduced one sixth.
Section 42-11-500. Where compensation payments have been made and discontinued, and further compensation is claimed, the claim for further compensation shall be made within two years after the last payment in all cases of occupational disease, provided that claims for further compensation for asbestosis or silicosis shall be governed by the final award as set forth in this article.
Section 42-11-510. Upon the filing of a claim for death from asbestosis or silicosis where in the opinion of the commission a postmortem examination is necessary to accurately ascertain the cause of death, such examination shall be ordered by the commission. A full report of such examination shall be certified to the commission. The surviving spouse or next of kin and the employer or his insurance carrier, if their identity and whereabouts can be reasonably ascertained, shall be given reasonable notice of the time and place of such postmortem examination, and, if present at such examination, shall be given an opportunity to witness the same. Any such person may be present and witness such examination either in person or through a duly authorized representative. If such examination is not consented to by the surviving husband or wife or next of kin, all right to compensation shall cease.
Section 42-11-520. (A) There shall be an advisory medical committee consisting of three members, who shall be licensed physicians in good professional standing and peculiarly qualified in the diagnosis or treatment of asbestosis and silicosis. They shall be appointed by the commission with the approval of the Governor, and one of them shall be designated as chairman of the committee by the commission. The members of the committee shall be appointed to serve terms as follows: one for a term of two years, one for a term of four years, and one for a term of six years. Upon the expiration of each term as above mentioned the commission shall appoint a successor for a term of six years; except that the terms of the members first appointed shall expire June 30, 2001. The function of the committee shall be to conduct examinations and make reports as required by this article, and to assist in any postmortem examinations when so directed by the commission. Members of the committee shall devote to the duties of the office so much of their time as may be required in the conducting of examinations with reasonable promptness, and they shall attend hearings as scheduled by the commission when their attendance is desired for the purpose of examining and cross-examining them respecting any report or reports made by them.
(B) The members of the advisory medical committee shall be paid one hundred dollars per month plus not more than ten dollars per film examined. The fee per X-ray film shall be established by the commission.
(C) Notwithstanding any other provision of this article, the commission, in its discretion, may designate a qualified physician who is not a member of the advisory medical committee to perform an examination of an employee who has filed a claim for benefits for asbestosis or silicosis. This physician shall file his reports in the same manner a member of the advisory medical committee files reports; and these reports shall be deemed reports of the advisory medial committee.
Section 42-11-530. (A) The commission shall establish a schedule of reasonable charges to defray expenses incurred in conducting examinations and making reports pursuant to this article, such charges to be collected in accordance with regulations which shall be promulgated by the commission.
(B) The commission shall establish a schedule of reasonable charges for examinations. Such charges shall be collected in accordance with regulations promulgated by the commission and shall be used, subject to appropriation by the General Assembly, to defray the cost of conducting the examinations.
(C) Charges imposed pursuant to this section shall be collected from employers who by order of the commission are determined to be subject to the hazards of asbestosis or silicosis.
Section 42-11-540. In hearings arising out of claims for disability or death resulting from asbestosis or silicosis the commission shall tax as a part of the cost in cases in which compensation is awarded a reasonable allowance for the services of members of the advisory medical committee attending such hearings and reasonable allowances for the services of members of the advisory medical committee for making investigations in connection with all claims for compensation on account of asbestosis or silicosis, including uncontested cases, as well as contested cases, and whether or not hearings shall have been conducted in connection therewith. All such charges, fees, and allowances to be collected by the commission shall be paid into the state's general fund to constitute a fund out of which to pay the expenses of the advisory medical committee.
Section 42-11-550. In the event the amount appropriated by the General Assembly and the charges, fees, and allowances so assessed and collected and paid into the state treasury shall not be sufficient to pay the full cost incurred by the advisory medical committee in making examinations of employees, and conducting postmortem examinations, and in making investigations of claims arising under this article and in testifying before the commission, the commission shall assess against the employers found by the commission to be subject to the hazards of asbestosis or silicosis an amount sufficient to pay such cost, said amount to be assessed against such employers pro rata on the basis of annual payroll. The commission is authorized to assess and collect in advance in the beginning of any year from the employers subject to such hazard an amount estimated as necessary to pay such cost. Said amount when so assessed shall be paid by such employers within ten days after the notice of assessment, and when collected by the commission shall be paid into the state treasury as part of the fund out of which to pay the expenses of the advisory medical committee. In the event such amount so assessed shall be found to be in excess of the cost incurred by such advisory medical committee in the performance of its duties under this article, such excess shall be credited against the estimate of the cost to be incurred by said committee for the succeeding year. In case the amount so assessed shall be insufficient to pay such cost the commission is authorized to make an additional assessment to be made at the end of the regular assessment period and to be collected from the employers subject to the hazards of asbestosis silicosis.
Section 42-11-560. The commission shall make inspections of employments for the purpose of ascertaining whether such employments, or any of them, are subject to the hazards of asbestosis or silicosis, and for the purpose of making studies and recommendations with a view to reducing or eliminating such hazards. The commission, or any person selected by it, is authorized to enter upon the premises of employers where employments covered by this article are being carried on to make examinations and studies as aforesaid. Any employer, or any officer or agent of any employer, who unreasonably prevents or obstructs any such examinations or study shall be guilty of a misdemeanor and, upon conviction, must be fined one thousand dollars or imprisoned for thirty days, or both.
Section 42-11-570. The provisions of Article 1 of this chapter concerning occupational disease are applicable with respect to the provisions of this Article 3 regarding asbestosis and silicosis, except in the event of any conflict, in which case the provisions of Article 3 shall apply."
SECTION 3. Article 1, Chapter 11 of Title 42 of the 1976 Code is amended by adding:
"Section 42-11-75. Notwithstanding the provisions of Section 42-11-60 or Section 42-11-70 or any other provision of this article, compensation for injury or death due to asbestosis or silicosis shall be governed by Article 3 of this chapter."
SECTION 4. Except as otherwise specifically provided in this act, this act takes effect July 1, 2000.
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