Download This Bill in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
Sponsors: Reps. Leach, Sandifer, Vaughn, Taylor, Walker, Mahaffey, Cato, Young, Whitmire, Edge, Toole, Hinson, Bingham, Merrill, Umphlett, Dantzler and Stewart
Document Path: l:\council\bills\dka\3064dw05.doc
Introduced in the House on January 11, 2005
Currently residing in the House Committee on Labor, Commerce and Industry
Summary: Workers' Compensation Reform Act of 2005
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/22/2004 House Prefiled 12/22/2004 House Referred to Committee on Labor, Commerce and Industry 1/11/2005 House Introduced and read first time HJ-125 1/11/2005 House Referred to Committee on Labor, Commerce and Industry HJ-131 1/26/2005 House Member(s) request name added as sponsor: Cato, Young, Whitmire, Edge, Toole, Hinson, Bingham, Merrill, Umphlett, Dantzler 5/12/2005 House Member(s) request name added as sponsor: Stewart
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "SOUTH CAROLINA WORKERS' COMPENSATION REFORM ACT OF 2005", BY ADDING SECTION 42-1-180 SO AS TO LIMIT THE DISABILITY RATING ESTABLISHED BY THE SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION TO A MAXIMUM OF ONE HUNDRED FIFTY PERCENT OF THE AMERICAN MEDICAL ASSOCIATION GUIDELINES FOR IMPAIRMENT; BY ADDING SECTION 42-1-190 SO AS TO ELIMINATE ANY COMPENSATION, LOST WAGES OR MEDICAL, PAYABLE TO THE INJURED WORKER WHEN ALCOHOL OR OTHER ILLEGAL SUBSTANCES ARE FOUND TO BE PRESENT IN THE PERSON'S BODY; BY ADDING SECTION 42-1-200 SO AS TO ELIMINATE COMPENSATION, LOST WAGES OR MEDICAL, PAYABLE TO THE INJURED WORKER WHEN THE ACCIDENT WAS INTENTIONAL, OR WHEN THE INJURED FAILED TO FOLLOW COMPANY, STATE OR FEDERAL POLICIES, RULES, AND REGULATIONS; BY ADDING SECTION 42-1-210 SO AS TO ELIMINATE ANY COMPENSATION, LOST WAGES OR MEDICAL, PAYABLE TO ANY INJURED WORKER WHEN THE INJURED WORKER IS AN ILLEGAL ALIEN AND HAS GAINED EMPLOYMENT THROUGH FRAUDULENT MEANS OR METHODS, OR BOTH; BY ADDING SECTION 42-1-378 SO AS TO ELIMINATE CONCURRENT JURISDICTION BETWEEN THE SOUTH CAROLINA WORKERS' COMPENSATION ACT AND THE FEDERAL EMPLOYERS' LIABILITY ACT, THE LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT, OR ANY OF ITS EXTENSIONS, AND THE JONES ACT; BY ADDING SECTION 42-9-95 SO AS TO NOT PAY LOST WAGE COMPENSATION TO AN INJURED WORKER DURING ALL PERIODS OF TIME WHILE THE INJURED WORKER IS INCARCERATED; TO AMEND SECTION 42-1-80, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF THE SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION, SO AS TO CHANGE THE DEFINITION TO DEFINE "DIVISION" AS THE "SOUTH CAROLINA WORKERS' COMPENSATION DIVISION" AND DEFINE "DEPARTMENT" AS THE "SOUTH CAROLINA DEPARTMENT OF INSURANCE"; TO AMEND CHAPTER 3, TITLE 42, RELATING TO THE INDUSTRIAL COMMISSION, SO AS TO CHANGE THE NAME TO THE SOUTH CAROLINA WORKERS' COMPENSATION DIVISION OF THE SOUTH CAROLINA DEPARTMENT OF INSURANCE AND TO MAKE CORRESPONDING CHANGES IN OTHER PROVISIONS NECESSARY TO BE CONSISTENT WITH THIS CHANGE; TO AMEND CHAPTER 5, TITLE 42, RELATING TO INSURANCE AND SELF-INSURANCE UNDER THE PROVISIONS OF TITLE 42, SO AS TO MAKE CHANGES IN PROVISIONS CONSISTENT WITH THE TRANSFER OF POWERS, DUTIES, AND RESPONSIBILITIES FROM THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION; TO AMEND SECTION 42-7-80, RELATING TO THE PAYMENT OF AWARDS BY THE WORKERS' COMPENSATION COMMISSION, SO AS TO PROVIDE THAT AWARDS MUST INSTEAD BE AWARDED BY AN ADMINISTRATIVE LAW JUDGE; TO AMEND SECTION 42-7-200, AS AMENDED, RELATING TO THE WORKERS' COMPENSATION UNINSURED EMPLOYER'S FUND, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE INSTEAD OF WORKERS' COMPENSATION COMMISSION SHALL DETERMINE IF AN EMPLOYEE IS SUBJECT TO THE PROVISIONS OF TITLE 42; TO AMEND SECTION 42-7-310, AS AMENDED, RELATING TO THE ESTABLISHMENT OF THE SECOND INJURY FUND, SO AS TO PROVIDE THAT THE RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION ARE DIVIDED BETWEEN THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-9-30, AS AMENDED, RELATING TO THE AMOUNT OF COMPENSATION AND PERIOD OF DISABILITY FOR CERTAIN INJURIES, SO AS TO ELIMINATE THE PRESUMPTION OF TOTAL DISABILITY IN CASES WHERE THERE IS FIFTY PERCENT OR MORE LOSS OF USE OF THE BACK; TO AMEND SECTION 42-9-90, RELATING TO THE INCREASE IN COMPENSATION WHEN AN INSTALLMENT PAYMENT IS NOT PAID, SO AS TO MAKE CORRESPONDING CHANGES TO CONFORM TO THE TRANSFER OF DUTIES AND RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-9-140, AS AMENDED, RELATING TO PAYMENT OF COMMUTED AMOUNTS TO A DECEASED EMPLOYEE WHEN THE EMPLOYEE LEAVES NO DEPENDENTS OR PARTIAL DEPENDENTS, SO AS TO MAKE CORRESPONDING CHANGES TO CONFORM TO THE TRANSFER OF DUTIES AND RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-9-190, RELATING TO THE REQUIREMENT THAT AN INJURED EMPLOYEE WHO REFUSES SUITABLE EMPLOYMENT IS NOT ENTITLED TO COMPENSATION, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE SHALL APPROVE THE EMPLOYMENT INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-210, RELATING TO A DEDUCTION BY AN EMPLOYER OF PAYMENTS WHICH ARE NOT DUE AND PAYABLE, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION APPROVE THE DEDUCTIONS; TO AMEND SECTION 42-9-230, AS AMENDED, RELATING TO THE DATE ON WHICH COMPENSATION PAYABLE UNDER THE AGREEMENT BECOMES DUE, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION DETERMINES WHEN INSTALLMENTS ARE MADE; TO AMEND SECTION 42-9-240, RELATING TO THE DATE ON WHICH COMPENSATION PAYABLE UNDER AN AWARD BECOMES DUE, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE DETERMINE THE DATE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-250, RELATING TO THE PAYMENT OF COMPENSATION MONTHLY OR QUARTERLY INSTEAD OF WEEKLY, SO AS TO PROVIDE THAT AN ADMINISTRATIVE LAW JUDGE MAKE THAT DETERMINATION INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-260, AS AMENDED, RELATING TO THE NOTICE REQUIRED WHEN DISABILITY PAYMENTS BEGIN, SO AS TO MAKE CORRESPONDING CHANGES TO CONFORM TO THE TRANSFER OF DUTIES AND RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-9-270, RELATING TO NOTICE OF FINAL PAYMENT OF COMPENSATION BY THE EMPLOYER, SO AS TO PROVIDE THAT THE NOTICE BE SENT TO THE WORKERS' COMPENSATION DIVISION INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-301, RELATING TO LUMP-SUM PAYMENTS BY EMPLOYERS, SO AS TO MAKE CORRESPONDING CHANGES TO CONFORM TO THE TRANSFER OF DUTIES AND RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-9-310, AS AMENDED, RELATING TO A LUMP-SUM PAYMENT ADMINISTERED BY A TRUSTEE, SO AS TO PROVIDE THAT THIS MUST BE DETERMINED BY AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-340, RELATING TO THE EFFECT OF PAYMENT OF A DEATH BENEFIT BY AN EMPLOYER IN GOOD FAITH TO CERTAIN DEPENDENTS, SO AS TO PROVIDE THAT THE WORKERS' COMPENSATION DIVISION INSTEAD OF THE WORKERS' COMPENSATION COMMISSION SHALL DECIDE BETWEEN DEPENDENTS WHEN THE EMPLOYER IS IN DOUBT AS TO THE RIGHTS OF THE CLAIMANTS; TO AMEND SECTION 42-9-360, AS AMENDED, RELATING TO ASSIGNMENTS OF COMPENSATION AND EXEMPTIONS FROM CLAIMS OF CREDITORS, SO AS TO PROVIDE THAT PAYMENT TO AN AUTHORIZED HEALTH CARE PROVIDER FOR SERVICES MUST BE MADE DURING A CERTAIN TIME UNLESS THE WORKERS' COMPENSATION DIVISION INSTEAD OF THE WORKERS' COMPENSATION COMMISSION HAS RECEIVED A REQUEST TO REVIEW THE MEDICAL BILL; TO AMEND SECTION 42-9-390, RELATING TO VOLUNTARY PAYMENT BETWEEN AN EMPLOYER AND AN EMPLOYEE, SO AS TO PROVIDE THAT THE SETTLEMENT AGREEMENT MUST BE APPROVED BY THE WORKERS' COMPENSATION DIVISION INSTEAD OF A MEMBER OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-9-400, AS AMENDED, RELATING TO THE MANNER IN WHICH AN EMPLOYER OR INSURANCE CARRIER IS REIMBURSED FROM THE SECOND INJURY FUND, SO AS TO PROVIDE THAT THE DIRECTOR OF THE INDUSTRIAL COMMISSION INSTEAD OF A MAJORITY OF THE COMMISSION MAY ENTER INTO COMPROMISE SETTLEMENTS; TO AMEND SECTION 42-9-440, AS AMENDED, RELATING TO REPORTING FALSE STATEMENTS AND MISREPRESENTATIONS TO THE INSURANCE FRAUD DIVISION OF THE OFFICE OF ATTORNEY GENERAL, SO AS TO REQUIRE THE WORKERS' COMPENSATION DIVISION AND ADMINISTRATIVE LAW JUDGE DIVISION TO MAKE THE REPORT; TO AMEND SECTION 42-11-80, RELATING TO WILFUL MISREPRESENTATION BY AN EMPLOYEE THAT HE HAS NOT PREVIOUSLY SUFFERED FROM THE DISEASE WHICH IS THE CAUSE OF A DISABILITY OR DEATH, SO AS TO PROVIDE THAT THE WAIVER WHICH THIS EMPLOYEE MAY EXECUTE MUST BE APPROVED BY THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-11-100, AS AMENDED, RELATING TO THE AMOUNT OF COMPENSATION PAYABLE FOR A DISABILITY FROM AN OCCUPATIONAL DISEASE, SO AS TO PROVIDE THAT NO COMPENSATION MAY BE PAID FOR THE TIME THE EMPLOYEE REFUSES TO ACCEPT SUITABLE EMPLOYMENT WHEN ORDERED BY AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-11-120, RELATING TO THE PROCEDURE FOR DETERMINING CLAIMS, SO AS TO DELETE PROVISIONS REGARDING A MEDICAL QUESTION BEING REFERRED BY THE WORKERS' COMPENSATION COMMISSION TO THE MEDICAL BOARD; TO AMEND SECTION 42-13-50, RELATING TO THE APPORTIONMENT OF LIABILITY FOR COMPENSATION TO AN EMPLOYEE EXPOSED TO IONIZING RADIATION, SO AS TO PROVIDE THAT AN APPEAL OF AN AWARD IS TO AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE INDUSTRIAL COMMISSION AND PROVIDE THAT THE METHOD OF APPORTIONMENT MUST BE MADE BY AN ADMINISTRATIVE LAW JUDGE INSTEAD OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTION 42-13-80, RELATING TO THE AUTHORITY OF THE INDUSTRIAL COMMISSION TO DETERMINE THE MEDICAL SERVICES FOR AN IONIZING RADIATION INJURY OR DISABILITY, SO AS TO TRANSFER THE AUTHORITY TO AN ADMINISTRATIVE LAW JUDGE; TO AMEND SECTION 42-13-90, RELATING TO AN EMPLOYEE'S RIGHT TO VOCATIONAL REHABILITATION WHO HAS BEEN INJURED BY RADIATION EXPOSURE, SO AS TO TRANSFER CERTAIN RESPONSIBILITIES TO THE ADMINISTRATIVE LAW JUDGE DIVISION FROM THE INDUSTRIAL COMMISSION; TO AMEND SECTION 42-13-100, RELATING TO CERTAIN SETTLEMENT BEING INVALID UNLESS APPROVED BY THE INDUSTRIAL COMMISSION, SO AS TO TRANSFER THIS AUTHORITY TO THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 42-13-110, RELATING TO CERTAIN POWERS OF THE WORKERS' COMPENSATION COMMISSION, SO AS TO TRANSFER THESE POWERS TO THE WORKERS' COMPENSATION DIVISION; TO AMEND CHAPTER 15, TITLE 42, RELATING TO THE NOTICE OF AN ACCIDENT FILED BY AN EMPLOYEE, WHERE THE CLAIM MUST BE FILED AND THE FURNISHING OF MEDICAL TREATMENT AND SUPPLIES TO THE EMPLOYEE, SO AS TO TRANSFER CERTAIN RESPONSIBILITIES TO THE ADMINISTRATIVE LAW JUDGE DIVISION FROM THE WORKERS' COMPENSATION COMMISSION; TO AMEND CHAPTER 17, TITLE 42, RELATING TO THE AWARDING OF COMPENSATION TO AN INJURED EMPLOYEE, SO AS TO MAKE CORRESPONDING CHANGES TO CONFORM TO THE TRANSFER OF DUTIES AND RESPONSIBILITIES OF THE WORKERS' COMPENSATION COMMISSION TO THE WORKERS' COMPENSATION DIVISION AND THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND CHAPTER 19, TITLE 42, RELATING TO THE REQUIREMENT THAT EMPLOYERS SHALL KEEP RECORDS AND MAKE REPORTS REGARDING INJURIES RECEIVED BY EMPLOYEES IN THE COURSE OF THEIR EMPLOYMENT, SO AS TO TRANSFER CERTAIN RESPONSIBILITIES TO THE WORKERS' COMPENSATION DIVISION FROM THE WORKERS' COMPENSATION COMMISSION; AND TO REPEAL SECTION 42-1-90 RELATING TO THE DEFINITION OF "COMMISSION" UNDER THE PROVISIONS OF TITLE 42 AND SECTIONS 42-11-130 THROUGH 42-11-190 RELATING TO THE MEDICAL BOARD EMPLOYED TO DETERMINE CONTROVERSIAL MEDICAL QUESTIONS IN WORKERS' COMPENSATION CASES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited the "South Carolina Workers' Compensation Reform Act of 2005".
SECTION 2. Article 1, Chapter 1, Title 42 of the 1976 Code is amended by adding:
"Section 42-1-180. In workers' compensation cases, disability awards are limited to injured workers for injuries sustained in the course and scope of employment, to a schedule comparable to the American Medical Association's guidelines for impairment. In no case may the award be greater than one hundred fifty percent of the AMA guidelines for impairment of similar body parts.
Section 42-1-190. (A) Compensation is not allowed for an injury or death proximately caused by intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been prescribed lawfully by a physician for the employee and taken in accordance with the prescription.
(1) If the amount of alcohol in the employee's blood within four hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, is eight one-hundredths of one percent or more, it may be inferred that the accident and injury or death were proximately caused by intoxication by alcohol.
(2) If any amount of marijuana or a controlled substance is in the employee's blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, it may be inferred that the accident and injury or death were proximately caused by being under the influence of marijuana or the controlled substance.
(3) If the employee unjustifiably refuses to submit to a reliable, scientific test to determine the presence of alcohol, marijuana, or a controlled substance in an employee's blood, urine, breath, or other bodily substance, it may be inferred that the accident and injury or death were proximately caused by intoxication by alcohol or being under the influence of marijuana or a controlled substance.
(B) With the exception of the inferences set forth above, the burden of proof is upon the party who claims the applicability of this section.
Section 42-1-200. Compensation is not allowed for an injury or death due to the employee's wilful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injury another, or for the wilful failure or refusal to use a safety appliance or perform a duty as required by written company policy and state statute.
Section 42-1-210. Compensation, either lost wages or medical, is not allowed for an injury or death, when the injury or death occurred to an individual who is an illegal alien, who gained employment through fraudulent means or methods, or both, including, but not limited, to falsification of application, invalid social security number, or falsified or invalid immigration papers."
SECTION 3. Article 3, Chapter 1, Title 42 of the 1976 Code is amended by adding:
"Section 42-1-378. This title does not apply to employees covered by the Federal Employers' Liability Act, the Longshore and Harbor Workers' Compensation Act, or any of its extensions, or the Jones Act."
SECTION 4. Chapter 9, Title 42 of the 1976 Code is amended by adding:
"Section 42-9-95. Payment of lost wage compensation for an employee who was injured while on the job during all periods of time, after the initial injury, must not be paid while the employee is incarcerated."
SECTION 5. Section 42-1-80 of the 1976 Code is amended to read:
"Section 42-1-80. As used in this title:
The term 'Commission' 'Division' means the South Carolina Workers' Compensation Commission South Carolina Workers' Compensation Division created under pursuant to the provisions of this title.
(2) 'Department' means the South Carolina Department of Insurance."
SECTION 6. Chapter 3, Title 42 of the 1976 Code is amended to read:
Section 42-3-10. There is created the South Carolina Workers' Compensation
Commission Division within the South Carolina Department of Insurance, hereinafter referred to as the Commission division, composed of a judicial and administrative department and constituted and administered as provided for in this title.
The Commission shall consist of seven members appointed by the Governor with the advice and consent of the Senate for terms of six years and until their successors are appointed and qualify. The Governor with the advice and consent of the Senate shall designate one commissioner as chairman for a term of two years and the chairman may serve two terms in his six-year term but not consecutively.
The commissioners shall hear and determine all contested cases, conduct informal conferences when necessary, approve settlements, hear applications for full Commission reviews and handle such other matters as may come before the department for judicial disposition. Full Commission reviews shall be conducted by six commissioners only, with the original hearing commissioner not sitting at such reviews. When one commissioner is temporarily incapacitated or a vacancy exists on the Commission, reviews may be conducted by the five remaining commissioners but in such cases decisions of the hearing commissioner shall not be reversed except on the vote of at least four commissioners; provided, however, that effective July 1, 1981 full Commission reviews may be conducted by three-member panels composed of three commissioners appointed by the chairman excluding the original hearing commissioner. The chairman, with unanimous approval of the other commissioners, shall determine which full commission reviews shall be assigned to panels. The decisions of such panels shall have the same force and effect as nonpanel full commission reviews. RESERVED.
The chairman shall be the chief executive officer of the Commission and shall execute the policies established by the Commission in its capacity as the governing body of the judicial and administrative departments.
The executive assistant for the judicial department and the administrative director of the administrative department shall report and be responsible to the chairman. RESERVED.
Section 42-3-30. The
Commission department shall promulgate and, as necessary, amend all regulations relating to the administration of the workers' compensation laws of this State necessary to implement the provisions of this title and consistent therewith with them. All rules, regulations, standards, orders, or other actions of these entities remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act, or as otherwise provided.
The annual salary for the commissioners shall be eighty-five percent of the salary paid to the circuit judges of the State. The commissioners shall receive a subsistence allowance of thirty-five dollars a day while in the performance of their duties outside the Columbia office. RESERVED.
The commissioners shall appoint an executive assistant for the judicial department, to serve at their pleasure, who shall prepare all dockets for hearings, informal conferences and full Commission reviews, maintain liaison with the director of the administrative department, receive all files from that department when they are ready for hearing, informal conference, settlement or other disposition, and perform such other duties as shall be assigned to him by the Chairman to whom the executive assistant shall be solely responsible.
The executive assistant with the approval of the chairman of the commission shall be authorized to employ and, if necessary, discharge all support personnel required to exercise the functions herein prescribed for his office. RESERVED.
Each commissioner shall be authorized to employ a secretary and a court reporter to serve at his pleasure. RESERVED.
Section 42-3-80. (A) The
administrative department of the Commission division shall be is under the direction of the administrative director of the department. The director shall be appointed by the Commission and serve at its pleasure and shall receive an annual salary of eighty-five percent of the salary paid to the circuit judges of this State.
administrative director shall receive and be is responsible for all files and records of the Industrial Commission division and shall refer forward all claims hearing requests to the judicial department Administrative Law Judge Division for disposition and receive from that department agency all documents, filings, orders, reports, information, and statistics as to the disposition of claims hearings. He The director shall also be is responsible for the referral to the South Carolina Vocational Rehabilitation Department of all industrially injured persons that need vocational counseling or vocational evaluation, personal adjustment, training, and placement.
(C) In the performance of
his those duties, the director is authorized to:
with the approval of the chairman of the Commission , appoint and discharge, if necessary, all support personnel within the administrative department except division directors retain necessary support personnel and outsource duties as necessary;
(b) compile all statistics and reports concerning the administration of workers' compensation laws and the disposition of claims related
thereto to them;
(c) conduct administrative operations of the
Commission division in accordance with the provisions of this title and regulations promulgated thereunder under them.
Section 42-3-90. (A) There
shall be is established within the administrative department division the following divisions, each headed by a division director recommended by the Administrative Director with the concurrence of the chairman and subject to the approval of the Commission.:
The Judicial Section Division of Coverage and Compliance,;
The Claims Section Division of Claims and Statistics,; and
The Insurance and Medical Services Section Division of Medical Services.
(B) Each division shall perform
such functions and duties as may be assigned to it by the director of the administrative department subject to the provisions of Section 42-3-25 director of the department or his designee.
The commissioners shall annually prepare and the chairman shall annually submit to the State Budget and Control Board and the General Assembly a budget for the Industrial Commission. RESERVED.
The Workers' Compensation Commission is authorized to double the amount of fines and penalties assessed for each violation of the Workers' Compensation law, except that for employers found to be uninsured in violation of the Workers' Compensation law, the minimum amount of the penalty assessed shall be seven hundred fifty dollars a year of noncompliance and the maximum amount of the penalty shall be one thousand dollars a year of noncompliance. The commission is further authorized to retain and expend all revenues received as a result of these collections. RESERVED.
Section 42-3-110. The commissioners of the judicial department and the director of the administrative department shall approve all expense and travel vouchers for their respective departments. RESERVED.
Section 42-3-120. There is
hereby created the advisory committee for improvement of the workers' compensation laws of South Carolina, consisting of five six members appointed by the Governor for terms of five four years and until successors are appointed and qualify. One member shall must be an attorney experienced in practice representing claimants, one member shall must be an attorney experienced in practice representing defendants, one member shall must be a representative of industry, one member shall must be a representative of labor, and one member shall must be a representative of the general public, and one member who is a nonvoting member, must be the director of the department. A chairman shall be elected by the committee. The committee shall meet at least quarterly to consider improvements in workers' compensation laws and monitor the effectiveness of existing law. A Recommendations recommendation for changes in the law shall may be recommended submitted annually to the General Assembly. Committee members shall serve without compensation but shall receive mileage, subsistence and per diem as provided by law for boards, committees and commissions payable from an annual appropriation from the general fund of the State.
The county sheriffs and their respective deputies shall serve all subpoenas of the Commission or its deputies and shall receive the same fees as are provided by law for like services. Provided, however, if the witness is in another county, the subpoena may be served by any person authorized to serve subpoenas in the county where the action originated. Each witness who appears in obedience to such subpoena of the Commission shall receive for attendance the fees and mileage for witnesses in civil cases in courts of the county in which the hearing is held. RESERVED.
The Commission or any member thereof, or any person deputized by it, may, for the purpose of this Title, subpoena witnesses, administer or cause to be administered oaths and examine or cause to be examined such parts of the books and records of the parties to proceedings as relate to questions in dispute. RESERVED.
The Commission in the discharge of its duties may administer oaths and affirmations, take depositions and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records deemed necessary in connection with any proceeding under this title.
No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda or other records before the Commission on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying or from civil prosecution, penalties or forfeitures pursuant to the provisions of this Title.
In case of contumacy by any person or refusal to obey a subpoena issued to any person, the Commission may issue to such person an order requiring him to appear before the Commission to produce evidence if so ordered or to give testimony touching the matter under investigation. Any failure to obey an order of the Commission may be punished as a contempt thereof.
Any person who shall without just cause fail or refuse to attend and testify, to answer any lawful inquiry or to produce books, papers, correspondence, memoranda and other records, if it is in his power to do so in accordance with a subpoena of the Commission, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty nor more than two hundred dollars or by a term of imprisonment for not more than thirty days. Each failure to obey a subpoena shall constitute a separate offense. Subpoenas shall be issued in the name of the Commission and shall be signed by a commissioner. Subpoenas shall be issued to such persons as the Commission may designate.
In addition, the Commission may punish for contempt in the manner authorized by this section any person whose disorderly conduct in any Commission proceeding interferes with the orderly process of such proceeding. RESERVED.
Any party to a proceeding pending under this Title or his attorney may cause the depositions of witnesses, either within or without the State, to be taken either by Commission or de bene esse. Such depositions shall be taken in accordance with and subject to the same provisions, conditions and restrictions as apply to the taking of like depositions in civil actions at law in the courts of common pleas and the same rules with respect to the giving of notice to the opposite party, the taking and transcribing of testimony and the transmission and certification thereof and matters of practice relating thereto shall apply. In any case in which testimony shall be taken by Commission, such Commission shall be issued, upon request of the party or his attorney, by some member of the Commission. The provisions of this section shall not be so construed as to prevent the Commission or any deputy commissioner from issuing commissions for the taking of testimony, even in the absence of any application therefor, when in its or his judgment it is deemed necessary or appropriate. RESERVED.
Hearings before the Commission shall be open to the public and shall be stenographically reported and the Commission may contract for the reporting of such hearings. The Commission shall by regulation provide for the preparation of a record of the hearings and other proceedings. A hearing request filed pursuant to this title must be heard and adjudicated by the Administrative Law Judge Division. A properly filed hearing request, along with the subsequent response and accompanying documentation, must be forwarded to the Administrative Law Judge Division for disposition pursuant to Chapter 23, Title 1. Upon final adjudication of the matter, all documents must be forwarded back to the division for retention and maintenance as required by this title and which is not inconsistent with this section.
Section 42-3-175. The division shall establish through regulation a mediation process under which the necessary parties to a workers' compensation claim are required to participate in a mediation in each case in which a hearing is requested. The mediation process must be developed by July 1, 2005.
All questions arising under this Title, if not settled by agreement of the parties interested therein with the approval of the Commission, shall be determined by the Commission, except as otherwise provided in this Title. RESERVED.
Section 42-3-185. Any policies or procedures implementing the provisions of Section 42-15-90
shall become becomes effective only when such the implementation is accomplished by regulations promulgated in accordance with the Administrative Procedures Act , which proposed regulations shall have before promulgation received approval of the Judiciary Committees of the Senate and House of Representatives and also by concurrent resolution of the General Assembly.
Section 42-3-190. The
Commission division shall prepare, cause to be printed, and, upon request, furnish blank forms and literature, free of charge to any an employee, such blank forms and literature as it shall deem requisite considers necessary to facilitate or prompt the efficient administration of this title. These forms and literature also may be made available through the department's website.
Section 42-3-195. (A) The
commission division shall cooperate with and provide information and statistics to the South Carolina Commissioner of Labor Department of Labor, Licensing and Regulation, which the Commissioner of Labor Director of Labor, Licensing and Regulation and his designees may use solely only for the following limited purposes:
(1) scheduling inspections pursuant to Section 41-15-260 for compliance with occupational safety and health rules and regulations;
(2) statistical evaluation of hazards.
(B) The information and statistics provided pursuant to this section are confidential and exempt from disclosure pursuant to the Freedom of Information Act, except that the
Commissioner of Labor Director of Labor, Licensing and Regulation may reveal to the federal Occupational Safety and Health Administration, on a confidential basis, the results of statistical evaluations of hazards as long as no identifying information is revealed.
(C) Upon trial of any action other than a workers' compensation claim,
such that information shall may not be placed in evidence or be permitted to be argued to any court, jury, or other adjudicatory body.
Section 42-3-210. The
Commission division shall tabulate the accident reports received from employers in accordance with Sections 42-19-10 and 42-19-20 and shall publish them in the annual report of the Commission make them available upon proper request and as often as it may deem considers advisable, in such detailed or aggregated form as it may deem considers best. The name of the employer or employee shall may not appear in such the publications and the employers' reports shall be are private records of the Commission division and shall may not be open for public inspection except for the inspection of the parties directly involved, and then only to the extent of such interest, including third party interests. These reports shall may not be used as evidence by or against any an employer in any a suit at law brought by any an employee for the recovery of damages, except by order of the court for good cause shown.
Section 42-3-220. The
Commission division may, by civil action brought in its own name, may enforce the collection of any fines or penalties provided by this title and such these fines and penalties shall must be used for the purpose of paying salaries and expenses of the Commission department.
Section 42-3-230. The
Commission division, may from time to time as it may deem advisable as necessary, may destroy any of its an inactive files file that are is at least five years old. No files A file of the Commission division shall may not be deemed considered inactive until the Commission division is satisfied that they will be it is of no further use. The division may maintain and store files using electronic means.
The Commission shall publish annually for free distribution a report of the administration of this Title, together with such recommendations as the Commission deems advisable, and shall submit annually to the Governor and the General Assembly a report showing receipts, expenditures and disbursements of the Commission for the fiscal year terminating on June thirtieth preceding the time of such report. RESERVED."
SECTION 7. Chapter 5, Title 42 of the 1976 Code is amended to read:
Every An employer who accepts the compensation provisions of this title shall secure the payment of compensation to his employees in the manner provided in this chapter. While such the security remains in force, he or those conducting his business shall only be is liable only to any an employee who elects to come under the provisions of this title for personal injury or death by accident to the extent and in the manner specified in this title.
Section 42-5-20. (A)
Every An employer who accepts the provisions of this title relative to the payment of compensation shall insure and keep insured his liability thereunder under it in any authorized corporation, association, organization, or mutual insurance association formed by a group of employers so authorized or shall furnish to the commission division satisfactory proof of his financial ability to pay directly the compensation in the amount and manner and when due as provided for in this title. The commission may division, under such rules and regulations as it may prescribe prescribed, may permit two or more employers in businesses of a similar nature to enter into agreements to pool their liabilities under the Workers' Compensation Law for the purpose of qualifying as self-insurers. In the case of self-insurers the commission division shall require the deposit of an acceptable security, indemnity, or bond to secure the payment of the compensation liabilities as they are incurred. The Industrial Commission shall have division has exclusive jurisdiction of group self-insurers under provided by this section, and such this group self-insurers shall are not be deemed to be insurance companies and shall not be regulated by the Department of Insurance. Provided, further, that If any a provision is made for the recognition of reinsurance of the self-insured fund, such the provision shall expressly must provide that the reinsurance agreement or treaty must recognize the right of the claimant to recover directly from the reinsurer and that such the agreement shall must provide for privity between the reinsurer and the workers' compensation claimant.
In lieu Instead of submitting audited financial statements when if an employer makes an application to self-insure with the commission division, the commission division shall accept the sworn statement or affidavit of an independent auditor verifying the financial condition of the employer according to the required financial ratios and guidelines established by regulation of the commission division. The independent auditor must be a certified public accountant using generally acceptable accounting principles in the preparation of the financial statements of the employer.
Section 42-5-25. (A) An approved self-insurance fund may provide temporary coverage for an applicant if he:
(1) submits to the
self-insurance Insurance and Medical Services Section division the required completed and signed forms , including, but not limited to, an application form with the same fee required for permanent membership in a self-insurance fund;
(2) qualifies for membership in the fund;
(3) qualifies under the by-laws of the fund;
(4) operates a business similar in nature to the businesses in the fund;
(5) is financially sound and meets or exceeds the minimum net worth requirements established for permanent membership in a self-insurance fund;
(6) notifies the division in writing on or before the coverage date.
(B) Upon receipt and review of the documents described in subsection (A), the division shall notify the fund within two business days whether temporary membership is granted. If the division does not notify the fund of its decision within two business days, temporary membership is
deemed considered granted.
(C) Temporary coverage expires when the
full commission director approves the applicant or thirty days after the full commission rejects the applicant. The effective date on the certificate for self-insurance must show the original, temporary, coverage date.
Every An employer accepting the compensation provisions of this title shall file with the Commission division, in on a form prescribed by it, annually or as often as may be necessary evidence of his to report compliance with the provisions of Section 42-5-20 and all others relating thereto to it. In the event If an employer shall insure insures his liability under pursuant to the provisions of this title with an insurance carrier, the insurance carrier shall be is required to make the necessary filings. The division shall establish a procedure for electronic filing to satisfy the requirement of this section.
Any An employer required to secure the payment of compensation under pursuant to the provisions of this title who refuses or neglects to secure such the compensation shall must be punished by a fine of fined by the division, 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, an amount equal to the premium that would have been applied by the assigned risk plan for the appropriate period and until the same ceases, and he shall be is liable during continuance of such the refusal or neglect to an employee either for compensation under pursuant to the provisions this title or at law in an action instituted by the employee or his personal representative against such the employer to recover damages for personal injury or death by accident and in any such this action such the employer shall is not be permitted to defend upon any of the grounds mentioned in Section 42-1-510.
(B) The fine provided in this section may be assessed also by the
Commission Administrative Law Judge Division in an open hearing with the right of review and appeal as in other cases.
Any An employer required to secure payment of compensation under pursuant to the provisions of this title who wilfully refuses to secure such the compensation shall be is guilty of a misdemeanor and, upon conviction, shall must be punished by a fine of fined not less than one hundred dollars nor more than one thousand dollars or by imprisonment for imprisoned not less than thirty days nor more than six months, or both, in the discretion of the court.
Whenever If an employer has complied with the provisions of Section 42-5-20 relating to self-insurance, the Commission division shall issue to such the employer a certificate, which shall remain remains in force for a period fixed by the Commission division. But the Commission may division, upon at least sixty days' notice and a hearing to the employer, may revoke the certificate upon satisfactory evidence for such the revocation having been presented. At any time after such the revocation, the Commission division may grant a new certificate to the employer upon his petition.
Every A policy for the insurance of the compensation provided in this title or against liability therefore for it shall be deemed to be made is subject to provisions of this title. No A corporation, an association, or an organization shall not enter into any such this policy of insurance unless its form shall have has been approved by the Chief Insurance Commissioner of South Carolina director of the department.
All policies A policy insuring the payment of compensation under pursuant to the provisions of this title must contain a clause to the effect that, as between the employer and the insurer, the notice to or acknowledgment of the occurrence of the injury on the part of the insured employer shall be deemed is considered notice or knowledge, as the case may be, on the part of the insurer, that jurisdiction of the insured for the purpose of this title shall be is jurisdiction of the insurer, that the insurer shall in all things be is bound by and subject to the awards, judgments, or decrees rendered against such the insured employer and that insolvency or bankruptcy of the employer or discharge therein shall in it does not relieve the insurer from the payment of compensation for disability or death sustained by an employee during the life of such the policy or contract.
Section 42-5-80. (A)
No A policy of insurance against liability arising under pursuant to the provisions of this title may not be issued unless it contains the agreement of the insurer that it will promptly shall pay promptly to the person entitled thereto to it all benefits conferred by this title, and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall is not be affected by any default of the insured or by any a default in giving notice required by such the policy or otherwise.
Such The agreement must be construed to be a direct promise by the insurer to the person entitled to compensation enforceable in his name.
Any An insurer who issues a policy of compensation insurance to an employer not subject to this title may not plead as a defense that the employer is not subject to this title and is estopped to deny coverage.
Upon the withdrawal of any If an insurance carrier that has any outstanding liability under pursuant to the provisions of this title withdraws from doing business in this State the Chief Insurance Commissioner director of the department shall immediately notify immediately the Commission Administrative Law Judge Division. and thereupon The Commission Administrative Law Judge Division shall issue an award against such the insurance carrier and commute the installments due any an injured employee and forward immediately have such the award to and have it docketed in the court of common pleas of the county in which that the claimant resides and the Commission shall division then cause shall bring suit to be brought on such the judgment in the state of the residence of any such the insurance carrier and the proceeds from such the judgment, after deducting costs, if any, of the proceeding, shall must be turned over to the injured employee, taking from such the employee a proper receipt in satisfaction of his claim.
Every An employer carrying his own risk under pursuant to the provisions of Section 42-5-20 shall report under oath to the South Carolina Workers' Compensation Commission division his actual cost incurred under pursuant to the provisions of this title. The report must be made in the form prescribed by the commission division by the fifteenth day of the third month following the close of the self-insurer's fiscal year. The commission division shall assess against the actual cost incurred a maintenance tax computed by taking four and one-half percent of the actual cost of operating under pursuant to the provisions of this title as determined by the commission. For fiscal year 1990-91, the maintenance tax is at the rate of three and one-half percent. For After fiscal year 1991-92 and thereafter 1990-91, the maintenance tax is at the rate of two and one-half percent. The assessments must be paid to the commission division which, in turn, shall deposit them with the State Treasurer. In the event of failure to pay If the tax is not paid within fifteen days of the date set forth provided for in this section, the commission division may assess against the self-insurer a penalty of five percent of the unpaid tax. If the self-insurer fails to pay the tax and penalty within fifteen days of notice by the commission division, interest must be added to the amount of the deficiency at the rate of five percent for each month or fraction of a month from the date the tax was due originally until the date the deficiency is paid and the commission division may initiate proceedings to withdraw the privilege of self-insuring in this State. The total maximum interest to be charged may not exceed twenty-five percent. The penalty under provided by this section is payable to the commission division and the interest must be remitted to the general fund.
No An agreement by an employee to pay any a portion of any a premium paid by his employer to a carrier or to contribute to a benefit fund or department maintained by such the employer for the purpose of providing compensation or medical services and supplies as required by this title shall be is not valid, and any an employer who makes a deduction for such this purpose from the pay of any an employee entitled to the benefits of this title shall be is guilty of a misdemeanor and, upon conviction, thereof shall must be punished by a fine of fined not more than five hundred dollars.
When any If an employer is insured against liability for compensation with any an insurance carrier and such the insurance carrier shall have has paid any compensation for which the employer is liable or shall have has assumed the liability of the employer therefore for it, it shall must be subrogated to all the rights and duties of the employer and may enforce any such these rights in its own name or in the name of the injured employee or his personal representative ; provided, however, that nothing in. This section shall may not be construed as conferring upon insurance carriers any other or further rights than those existing in the employer at the time of the injury to his employee, anything in the policy of insurance to the contrary notwithstanding.
No A compromise settlement shall may not be made by the insurance carrier in the exercise of its right of subrogation without the approval of the Commission division being first had and obtained.
Whenever If, by this chapter or the terms of any a policy contract, any an officer is required to give any notice to an insurance carrier, such the notice may be given by delivery or by mailing, by registered letter properly addressed and stamped, to the principal office or general agent of such the insurance carrier within this State or to its home office or to the secretary, general agent, or chief officer thereof of the insurance carrier in the United States or the Chief Commissioner of South Carolina director of the department.
Any A person who shall act acts or assume assumes to act as agent for any such an insurance carrier whose authority to do business in this State has been suspended, while such the suspension remains in force, or shall neglect neglects or refuse refuses to comply with any of the provisions of Sections 42-5-110, 42-5-120, 42-5-140, and 42-5-150 obligatory upon such the person or who shall wilfully make makes a false or fraudulent statement of the business or conditions of any such an insurance carrier or a false or fraudulent return shall be is guilty of a misdemeanor and, upon conviction, shall must be punished by a fine of fined not less than one hundred dollars nor more than one thousand dollars or by imprisonment for imprisoned not less than ten nor more than ninety days, or both, such fine and imprisonment in the discretion of the court.
Section 42-5-250. This title
shall does not apply to policies of insurance against loss from explosion of boilers or flywheels or other similar single catastrophe hazards. But nothing contained in This section shall may not be construed to relieve the employer from liability for injury or death of an employee as a result of such this explosion or catastrophe."
SECTION 8. Section 42-7-80 of the 1976 Code is amended to read:
When If awards under provided by this article are made by the Commission Administrative Law Judge Division, the Commission Administrative Law Judge Division shall transmit to the director of the fund an official copy of such the award, which shall contain contains the name of the claimant or beneficiary, an itemized statement of the payments to be made and such other information as may be necessary to constitute a full record of the case. Upon receipt of such official award If the director of the fund receives the official award, if he approves the award, shall forward an official copy thereof of it to the Comptroller General who shall issue his warrant upon the State Treasurer in payment of the claim and retain the award as his voucher therefore for it. If the director intends to litigate or otherwise contest the award, he shall notify the Commission Administrative Law Judge Division of this intention."
SECTION 9. Section 42-7-200 of the 1976 Code, as last amended by Act 34 of 1997, is further amended to read:
"Section 42-7-200. (A) There is established within the office of the Second Injury Fund the South Carolina Workers' Compensation Uninsured Employers' Fund to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees. The fund must be administered by the director of the Second Injury Fund who shall establish procedures to implement this section.
When If an employee makes a claim for benefits pursuant to Title 42 and the State Workers' Compensation Commission Division, or an administrative law judge by public hearing, determines that the employer is subject to Title 42 and is operating without insurance or as an unqualified self-insurer, the commission division 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.
When If the fund is notified of a claim, the fund may place a lien on the assets of the employer by way of lis pendens or otherwise so as to protect the fund from payments of costs and benefits. If the fund is required to incur costs or expenses or to pay benefits, the fund has a lien against the assets of the employer to the full extent of all costs, expenses, and benefits paid and may file notice of the lien with the clerk of court or register of deeds of any county in which the employer has assets in the same manner as the filing of South Carolina tax liens and with the Secretary of State in the same manner as utilized under Title 36 (Uniform Commercial Code). Any of the employer's assets sold or conveyed during the litigation of the claim must be sold or conveyed subject to the lien.
(3) The fund has all rights of attachment
set forth provided in Section 15-19-10 and has the right to proceed otherwise in the collection of its lien in the same manner as the Department of Revenue is allowed to enforce a collection of taxes generally pursuant to Section 12-49-10, et seq Chapter 49, Title 12. When all benefits due the claimant, as well as all expenses and costs of litigation, have been paid, the fund shall file notice of the total of all monies paid with the clerk of court in any county in which the employer has assets and with the Secretary of State. This notice constitutes a judgment against the employer and has priority as a first lien in the same manner as liens of the Department of Revenue, subject only to the lien of the Department of Revenue pursuant to Section 12-49-10, et seq Chapter 49, Title 12. If the employer files for bankruptcy or otherwise is placed into receivership, the fund becomes a secured creditor to the assets of the employer in the same manner as the Department of Revenue has priority for unpaid taxes, subject only to the lien of the Department of Revenue. The fund otherwise has all rights and remedies afforded the Department of Revenue as set forth in Section 12-54-10, et seq pursuant to Chapter 54, Title 12.
(B) Nothing in this section precludes the South Carolina Workers' Compensation Uninsured Employers' Fund from entering into an agreement for the reimbursement of expenses, costs, or benefits paid by the fund. If an agreement is entered into subsequent to the filing of a lien, the lien may be canceled by the fund. Provided, however, an agreement between the fund and an employer
under pursuant to the provisions of this section may provide that in the event if the employer breaches the terms or conditions of the agreement, the fund may file or reinstate a lien, as the case may be. For purposes of this section, the term 'costs' includes reasonable administrative costs which must be set by the director of the Second Injury Fund, subject to the approval of the Workers' Compensation Commission Division.
(C) To establish and maintain the South Carolina Workers' Compensation Uninsured Employers' Fund, there must be earmarked from the collections of the tax on insurance carriers and self-insured persons provided for in Sections 38-7-50 and 42-5-190 an amount sufficient to establish and annually maintain the fund at a level of not less than two hundred thousand dollars.
When If an employee makes a claim for benefits pursuant to Title 42 and the records of the South Carolina Workers' Compensation Commission division indicate that the employer is operating without insurance, the South Carolina Workers' Compensation Uninsured Employers' Fund or any a person designated by the director may subpoena the employer or its agents and require the production of any documents or records which the fund considers relevant to its investigation of the claim. The subpoena shall must be returnable at the office of the fund or any place designated by it. In the case of refusal to obey a subpoena issued to any person or agent of any an employer, a court of common pleas upon application of the fund may issue an order requiring the person or agent of an employer to appear at the fund and produce documentary evidence or give other evidence concerning the matter under inquiry."
SECTION 10. Section 42-7-310 of the 1976 Code, as last amended by Act 73 of 2003, is further amended to read:
(a)(A) There is hereby established, under the Budget and Control Board, the Second Injury Fund for the purpose of making payments in accordance with the provisions of this section and Section Sections 42-9-400 , Section and 42-9-410 , and this section. The fund shall must be administered by a director appointed by the State Budget and Control Board. The State Treasurer shall be is the custodian of the fund, and all monies and securities in the fund shall must be held in a separate and distinct trust account by the State Treasurer.
(b)(B)(1) Disbursements from the fund shall must be made with the approval of the director by forwarding a disbursement voucher, along with an itemized statement of payments and such other information as may be necessary to justify payment, to the Comptroller General who shall issue his warrant upon the State Treasurer in payment of the disbursement request.
(2) Agreements to reimburse an employer or his carrier for compensation or medical benefits as provided in Section 42-9-400 or 42-9-410
shall must be forwarded to the commission division for approval. If approved and unappealed, such the agreements shall be are binding in the same manner as other orders, decisions, or awards of the commission division.
When If awards are made under pursuant to the provisions of Section 42-9-400 or 42-9-410 by the commission administrative law judge, it he shall transmit to the director of the fund an official copy of such the awards which shall must contain the name of the employer, carrier, and employee to whom benefits were originally paid, an itemized statement of payments, and such other information as may be necessary to constitute a full record of the case. Upon the receipt of such the official award, the director of the fund, if he approves the award, shall forward a disbursement voucher, along with an official copy, to the Comptroller General who shall issue his warrant upon the State Treasurer in payment of the claim. If the director intends to litigate or otherwise contest the award, he shall notify the commission administrative law judge of such this intention. Any Questions or controversies arising under pursuant to the provisions of this subsection shall must be decided by the commission an administrative law judge in the procedural manner now provided under by this title.
(c)(C) The original funding of the Second Injury Fund shall be in a manner as follows:
(1) From the State Accident Fund, the State Treasurer is hereby authorized and directed to transfer one hundred thousand dollars to be deposited in the Second Injury Fund.
(2) The State Treasurer is hereby authorized and directed to deposit in the Second Injury Fund one third of the workers' compensation premium tax.
(3) The State Treasurer shall deposit to the account of the Second Injury Fund the money authorized paid to the Workers' Compensation Commission under Section 42-9-140.
(d) The funding of the Division of the Second Injury Fund on a continuing basis is by:
(1) deposits to the account of the fund by the State Treasurer of those monies authorized to be paid to the Workers' Compensation
Commission Division under provided by Section 42-9-140; and
(2) equitable assessments upon each carrier which, as used in this section, includes all insurance carriers, self-insurers, and the State Accident Fund. Each carrier shall make payments to the fund in an amount equal to that proportion of one hundred seventy-five percent of the total disbursement made from the fund during the preceding fiscal year less the amount of net assets in the fund as of June thirtieth of the preceding fiscal year which the normalized premium of each carrier bore to the normalized premium of all carriers during the preceding calendar year. Each insurance carrier, self-insurer, and the State Accident Fund shall make payment based upon workers' compensation normalized premiums during the preceding calendar year. The charge to each insurance carrier is a charge based upon normalized premiums. An employer who has ceased to be a self-insurer
shall continue continues to be liable for any assessments into the fund on account of any benefits paid by him during such the calendar year. Any An assessment levied or established in accordance with this section constitutes a personal debt of every each employer or insurance carrier so assessed and is due and payable to the Second Injury Fund when payment is called for by the fund. In the event of If there is failure to pay any assessment upon the date determined by the fund, the employer or insurance carrier may immediately may be assessed a penalty in an amount not exceeding ten percent of the unpaid assessment. If the employer or insurance carrier fails to pay the assessment and penalty , they shall be barred from any recovery from the fund on all claims without exception until the assessment and penalty are paid in full. within thirty days, the director may file a complaint for collection against the employer or insurance carrier in a court of competent jurisdiction for the assessment, penalty, and interest at the legal rate, and the employer/carrier is responsible for attorney's fees and costs. The penalty and interest under provided by this subsection are payable to the Second Injury Fund. At the time of the filing of the complaint, the fund shall also shall notify the South Carolina Department of Insurance and the South Carolina Workers' Compensation Commission division, and these government agencies shall take the appropriate legal and administrative action immediately.
(3) 'Normalized premium' is defined as gross paid losses before salvage and subrogation times a factor representing normalized expenses. Normalized expenses include taxes, licenses, fees, general expenses, profit, contingencies, and other expenses as reported on the Insurance Expense Exhibit of the NAIC Annual Statement blank. This normalized expense factor
shall must be computed annually by the Workers' Compensation Commission Division by August first of each year and must be based upon aggregate expense information obtained from the Department of Insurance derived from insurers' most recently filed annual statements.
(e)(D) The director shall be is authorized to employ necessary staff for administering the fund, and the monies necessary for administration of the fund shall must be paid out of the fund. In furtherance of this purpose, the Attorney General shall appoint a member of his staff to represent the fund in all proceedings brought to enforce claims against the fund."
SECTION 11. 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 proportions of the periods of payment herein provided in this item for total loss as such 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 to have suffered total and permanent disability and compensated therefor under paragraph two of Section 42-9-10."
SECTION 12. Section 42-9-90 of the 1976 Code is amended to read:
"Section 42-9-90. If
any an installment of compensation payable in accordance with the terms of an agreement approved by the Commission division without an award is not paid within fourteen days after it becomes due, as provided in Section 42-9-230, or if any installment of compensation payable in accordance with the terms of an award by the Commission an administrative law judge is not paid within fourteen days after it becomes due, as provided in Section 42-9-240, there shall must be added to such the unpaid installment an amount equal to ten percent thereof of it, which shall must be paid at the same time as, but in addition to, such the installment, unless such the nonpayment is excused by the Commission an administrative law judge after a showing by the employer that owing to conditions over which he had no control such the installment could not be paid within the period prescribed for the payment."
SECTION 13. Section 42-9-140(D), (E), and (F) of the 1976 Code, as last amended by Act 370 of 1996, is further amended to read:
"(D) If the deceased employee leaves no dependents or nondependent children or mother or father, then his employer shall pay to the deceased's personal representative the actual costs for burial expenses and the administration of the deceased's estate, and to the
commission division the commuted amounts provided for dependents under pursuant to the provisions of Section 42-9-290, to be expended in accordance with Section 42-9-400.
(E) If the deceased employee leaves partial dependents as defined in Section 42-9-120 and no children or mother or father, then his employer shall pay to that partial dependent in accordance with provisions
found provided in Section 42-9-290 and shall pay to the deceased's personal representative the actual cost of burial expenses and the administration of the deceased's estate, and to the commission division the remaining compensation, commuted as provided under in Section 42-9-290, to be expended in accordance with Section 42-9-400.
(F) If amounts are payable to the mother and father of the deceased employee pursuant to subsections (B) and (C), upon the motion of either parent or
any other another potential party of interest based upon the decedent having died intestate, the commission an administrative law judge may deny or limit either or both parent's entitlement for a share of the benefits if the commission administrative law judge determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 20-7-40 and did not otherwise provide for the needs of the decedent during his or her minority."
SECTION 14. Section 42-9-190 of the 1976 Code is amended to read:
"Section 42-9-190. If an injured employee refuses employment procured for him suitable to his capacity and approved by
the Commission an administrative law judge he shall is not be entitled to any compensation at any time during the continuance of such this refusal."
SECTION 15. Section 42-9-210 of the 1976 Code is amended to read:
Any Payments made by an employer to an injured employee during the period of his disability, or to his dependents, which by the terms of this title were not due and payable when made may, subject to the approval of the Commission an administrative law judge, may be deducted from the amount to be paid as compensation ; provided, that. In the case of disability, such however, the deductions shall must be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payment."
SECTION 16. Section 42-9-230 of the 1976 Code, as last amended by Act 59 of 1989, is further amended to read:
"Section 42-9-230. (A) The first installment of compensation payable under the terms of an agreement is due on the fourteenth day after the employer has knowledge of the injury or death, on which date all compensation due must be paid.
Thereafter After that time, compensation must be paid in installments weekly, except when the commission an administrative law judge determines that payment in installments should must be made monthly or at some other period.
(B) Installments paid weekly must be paid on the same day of the week, installments paid monthly must be paid on the same day of the month, and installments paid on some period other than weekly or monthly must be paid on the same day of each period."
SECTION 17. Section 42-9-240 of the 1976 Code is amended to read:
"Section 42-9-240. The first installment of compensation payable under the terms of an award by
the Commission an administrative law judge or under the terms of a judgment of a court upon an appeal from such an this award shall become are due seven days from the date of such an the award or from the date of such a the judgment of the court, on which date all compensation then due shall must be paid, including interest from the original date of the award at the maximum legal rate. Thereafter After that time, compensation shall must be paid in installments weekly, except when the Commission administrative law judge determines that payment in installments shall must be made monthly or in some other another manner."
SECTION 18. Section 42-9-250 of the 1976 Code is amended to read:
The Commission An administrative law judge, upon application of either party, may in its discretion, having regard to the welfare of the employee and the convenience of the employer, may authorize compensation to be paid monthly or quarterly instead of weekly."
SECTION 19. Section 42-9-260 of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"Section 42-9-260. (A)
When If 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 division, in accordance with a form prescribed by the commission division, 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;
(3) a good faith investigation by the employer reveals grounds for denial of the claim;
(4) the employee has been released by the treating physician to work without restriction and the employer offers comparable employment;
(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 administrative law judge 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 department 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 an administrative law judge approval prior to before termination or suspension unless such the 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 division 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 results 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."
SECTION 20. Section 42-9-270 of the 1976 Code is amended to read:
"Section 42-9-270. Within sixteen days after final payment of compensation has been made, the employer shall send to the
Commission division a notice, in accordance with a form prescribed by the Commission division, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails to so notify the Commission division within such that time, the Commission division shall assess against such the employer a civil penalty in the amount of twenty-five dollars."
SECTION 21. Section 42-9-301 of the 1976 Code is amended to read:
Whenever any If a weekly payment has been continued for not less than six weeks, the liability therefor may for it, when the employee so requests and the commission deems administrative law judge considers it not to be contrary to the best interest of the employee or his dependents, or when if it will prevent prevents undue hardship on the employer or his insurance carrier, without prejudicing the interest of the employee or his dependents, may be redeemed, in whole or in part, by the payment by the employer of a lump sum which shall must be fixed by the commission division, but in no case to be less than ninety percent of, nor to exceed, the commutable value of the future installments commuted so as not to exceed six percent nor to be less than two percent. The commission administrative law judge, however, in its his discretion, may at any time in the case of a minor who has received permanently disabling injuries, either partial or total, provide that he be compensated, in whole or in part, by the payment of a lump sum, the amount of which shall must be fixed by the commission division but in no case to be less than ninety percent of, nor to exceed, the commutable value of the future installments which may be due under this title. Upon a finding by the commission administrative law judge that a lump-sum payment should be made, the burden of proof as to the abuse of discretion in such finding shall be is upon the employer or carrier in any appeal proceedings."
SECTION 22. Section 42-9-310 of the 1976 Code, as last amended by Act 313 of 1988, is further amended to read:
Whenever If the Commission administrative law judge considers it expedient, any a lump sum subject to the provisions of Section 42-9-301 must be paid by the employer to some suitable person or corporation appointed by a court of competent jurisdiction in the county wherein where the accident occurred, as trustee, to administer it for the benefit of the person entitled thereto to it, in the manner provided by the Commission administrative law judge. When If the amount to be paid under provided by this section is in excess of one hundred dollars, the trustee is required to give sufficient bond approved by the probate court or clerk of the court of common pleas. The receipt of the trustee for the amount as paid discharges the employer or anyone else who is liable therefore for it."
SECTION 23. Section 42-9-340 of the 1976 Code is amended to read:
"Section 42-9-340. Payment of death benefits by an employer in good faith to a dependent subsequent in right to another dependent shall protect and discharge the employer, unless and until
such the dependent prior in right shall have given notice of his claim. In case the employer is in doubt as to the respective rights of rival claimants, he may apply to the Commission division for a hearing to be held pursuant to the provisions of this title to decide between them."
SECTION 24. Section 42-9-360(D) of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"(D) Payment to an authorized health care provider for services
shall must 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 division has received a request to review the medical bill."
SECTION 25. Section 42-9-390 of the 1976 Code is amended to read:
"Section 42-9-390. Nothing contained in this chapter may be construed so as to prevent settlements made
by and between an employee and employer so long as the amount of compensation and the time and manner of payment are in accordance with the provisions of this title. A copy of the settlement agreement must be filed by the employer with and approved by only one member of the commission the division if the employee is represented by an attorney. If the employee is not represented by an attorney, a copy of the settlement agreement must be filed by the employer with and approved by four members of the commission the director or his designee."
SECTION 26. Section 42-9-400(f) and (j) of the 1976 Code is amended to read:
"(f)(1) An employer or his carrier shall notify the
Industrial Commission division and the Director of the Second Injury Fund in writing of any possible claim against the fund as soon as practicable but in no event not later than after the payment of the first seventy-eight weeks of compensation.
(2) Failure to comply with the provisions of this subsection
shall bar bars an employer or his carrier from recovery from the fund.
(j) The Second Injury Fund
can may enter into compromise settlements at the discretion of the director with approval of a majority of the Industrial Commission the director, provided a bona fide dispute exists."
SECTION 27. Section 42-9-440 of the 1976 Code, as last amended by Act 497 of 1994, is further amended to read:
"Section 42-9-440. The
commission division and the administrative law judge shall report all cases of suspected false statement or misrepresentation, as defined in Section 38-55-530(D), 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 28. Section 42-11-80 of the 1976 Code is amended to read:
"Section 42-11-80. If an employee, at the time of his employment, wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of disability or death,
no compensation shall be is not payable. If an employee who has previously suffered from an occupational disease desires to continue in an employment to which such a that disease is a hazard, he may waive his right to receive further benefits for disablement or disability from such that disease by written agreement approved by the Commission division in accordance with such rules those regulations as it may promulgate be promulgated by the department."
SECTION 29. Section 42-11-100(3) of the 1976 Code, as last amended by Act 677 of 1988, is further amended to read:
"(3) For the time the employee refuses to accept suitable employment when ordered to do so by
the Commission an administrative law judge."
SECTION 30. Section 42-11-120 of the 1976 Code is amended to read:
"Section 42-11-120. The procedure for determining claims for benefits from an occupational disease
shall be is the same as that followed in determining other claims under pursuant to the provisions of this title , save that if any medical question shall be in controversy the Commission may, upon its own motion, and shall, upon motion of either party to the proceeding, refer the question to the medical board as provided in this chapter for investigation and report. A medical question shall be deemed to include any issue concerning the existence, cause and duration of a disease or disability, the date of disablement, the degree of disability and the proportion thereof attributable to a noncompensable cause and any other matter necessarily pertinent thereto requiring the opinion of experts."
SECTION 31. Section 42-13-50 of the 1976 Code is amended to read:
"Section 42-13-50. The employer, in whose employment an employee was last exposed to ionizing radiation,
shall be is liable for all awards of compensation should such the employee suffer an ionizing radiation injury, disability, or death. If, however, such the ionizing radiation injury, disability, or death is attributable in part to exposure to ionizing radiation which such the employee received in any previous employment, the employer who is made liable for all awards of compensation as provided by this section may appeal to the Industrial Commission Administrative Law Judge Division which shall apportion such the liability among the several employers in whose employ the employee was exposed to ionizing radiation. The method of apportionment shall must be determined by the Commission an administrative law judge."
SECTION 32. Section 42-13-80(b) of the 1976 Code is amended to read:
Industrial Commission Administrative Law Judge Division, on competent medical advice, shall have authority to determine the necessity, character, and sufficiency of any medical services or medical rehabilitation furnished or to be furnished, and shall have has the authority to order a change of physician, hospital, or rehabilitation facility when, in its judgment, such the change is desirable or necessary."
SECTION 33. Section 42-13-90 of the 1976 Code is amended to read:
(a)(A) An employee covered by this chapter who, for reasons of injury or medically determined restrictions on radiation exposure, and whose skills are not transferable to equivalent work not involving radiation exposure, shall be is entitled to such vocational rehabilitation services, including retraining and job replacement, as may be reasonably necessary to restore him to suitable employment. If such these services are not voluntarily offered and accepted, the Industrial Commission administrative law judge, on its own motion or upon application of the employee, after affording the parties an opportunity to be heard, may refer the employee to one or more qualified physicians or facilities for evaluation of the practicability of, the need for, and the kind of service, treatment, or training necessary for and appropriate to render him fit for a remunerative occupation. Upon receipt and evaluation of such the report, the Industrial Commission administrative law judge may order that the services and treatment recommended in the report, or such other rehabilitation treatment or service it may deem considers necessary, be provided at the expense of the employer. Vocational rehabilitation training, treatment, or service required pursuant to this section shall does not extend for a period of more than fifty-two weeks, except in unusual cases when by special order of the Industrial Commission administrative law judge, after affording the parties an opportunity to be heard, the period may be extended for an additional twenty-six weeks.
(b)(B) Where If rehabilitation services require residence at or near the facility or institution away from the employee's customary residence, reasonable cost of his board, lodging, and travel shall must be paid for by the employer.
(c)(C) Refusal to accept rehabilitation services pursuant to order of the Industrial Commission shall result administrative law judge results in loss of compensation for each week of the period of refusal."
SECTION 34. Section 42-13-100 of the 1976 Code is amended to read:
Any A settlement which waives liability for possible subsequently appearing consequences of ionizing radiation injury or disability is invalid unless approved by the Industrial Commission administrative law judge."
SECTION 35. Section 42-13-110 of the 1976 Code is amended to read:
"Section 42-13-110. The
Industrial Commission division is hereby authorized to:
to accept and administer loans, grants, or other funds or gifts, conditional or otherwise, in furtherance of its function, from the federal government and other sources, public or private; and
to require the keeping of radiation exposure records by employers covered under pursuant to the provisions of Section 42-13-20 of this chapter and the furnishing of such these exposure records to the Industrial Commission division or its successor organizations upon request."
SECTION 36. Chapter 15, Title 42 of the 1976 Code is amended to read:
Any An employee covered by the provisions of this title is authorized to may file his claim under the laws of the state where he is hired, the state where he is injured, or the state where his employment is located. If an employee shall receive receives compensation or damages under the laws of any other another state, nothing contained in this section shall may be construed to permit a total compensation for the same injury greater than that provided in this title.
Every An injured employee or his representative shall immediately, on the occurrence of an accident, or as soon thereafter after the accident as practicable, shall give or cause to be given to the employer a notice of the accident and the employee shall is not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this title prior to before the giving of such this notice, unless it can be is shown that the employer, his agent or representative, had knowledge of the accident or that the party required to give such this notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person. No Compensation shall be is not payable unless such this notice is given within ninety days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Commission administrative law judge for not giving such the notice and the Commission administrative law judge is satisfied that the employer has not been prejudiced thereby by it.
Section 42-15-40. The right to compensation
under pursuant to the provisions of this title is barred unless a claim is filed with the commission division within two years after an accident, or if death resulted from accident, within two years of the date of death. However, for occupational disease claims the two-year period does not begin to run until the employee concerned has been diagnosed definitively as having an occupational disease and has been notified of the diagnosis. For the death or injury of a member of the South Carolina National Guard, as provided for in Section 42-7-67, the time for filing a claim is two years after the accident or one year after the federal claim is finalized, whichever is later. The filing required by this section may be made by registered mail, and the registry within the time periods set forth provided in this section constitutes timely filing.
Section 42-15-50. No limitation of time provided in this title for the giving of notice or making claim
under pursuant to the provisions of this title shall run runs against any a person who is mentally incompetent or a minor dependent as long as he has no guardian, trustee, or committee.
When If a minor or mentally incompetent person is a party in a proceeding before the Workers' Compensation Commission an administrative law judge of this State a guardian ad litem for the minor or mentally incompetent person may be appointed by a judge of probate, clerk of court, or master, if there is a master, of the county where the minor or mentally incompetent person resides or by any circuit judge or a member of the Workers' Compensation Commission.
Section 42-15-60. (A) Medical, surgical, hospital, and other treatment, including medical and surgical supplies as
may reasonably may be required, for a period not exceeding ten weeks from the date of an injury to effect a cure or give relief and for such additional time as in the judgment of the Commission administrative law judge will tend to lessen the period of disability and, in addition thereto to it, such the original artificial members as reasonably may be reasonably necessary at the end of the healing period shall must be provided by the employer. In case of a controversy arising between employer and employee, the Commission administrative law judge, in his discretion, may order such further medical, surgical, hospital, or other treatment as may in the discretion of the Commission be necessary. During the whole or any part of the remainder of disability resulting from the injury, the employer may, at his own option, may continue to furnish or cause to be furnished, free of charge to the employee, and the employee shall accept an attending physician, unless otherwise ordered by the Commission administrative law judge and, in addition, such the surgical and hospital service and supplies as may be deemed considered necessary by such the attending physician or the Commission administrative law judge. The refusal of an employee to accept any medical, hospital, surgical, or other treatment when provided by the employer or ordered by the Commission administrative law judge shall bar such bars the employee from further compensation until such the refusal ceases and no compensation shall at any time may not be paid at any time for the period of suspension unless in the opinion of the Commission administrative law judge the circumstances justified the refusal, in which case the Commission administrative law judge may order a change in the medical or hospital service. If in an emergency on account of the employer's failure to provide the medical care as specified in this section a physician other than provided by the employer is called to treat the injured employee the reasonable cost of such the service shall must be paid by the employer if so it is ordered by the Commission administrative law judge.
(B) In cases in which total and permanent disability results, reasonable and necessary nursing services, medicines, prosthetic devices, sick travel, medical, hospital, and other treatment or care
shall must be paid during the life of the injured employee, without regard to any limitation in this title including the maximum compensation limit. In cases of partial permanent disability prosthetic devices also shall must be also furnished during the life of the injured employee or so long as they are necessary.
Section 42-15-65. (A) Damage to a prosthetic device of an injured employee as the result of an injury by accident arising out of and in the course of the employment entitles the employee to compensation ensuring that the prosthetic device is repaired or replaced.
(B) Damage to eye glasses or a hearing aid used by an injured employee as the result of an injury by accident arising out of and in the course of the employment entitles the employee to compensation ensuring that the eye glasses or the hearing aid is repaired or replaced.
Section 42-15-70. The pecuniary liability of the employer for medical, surgical, and hospital service or other treatment required, when ordered by
the Commission an administrative law judge, shall be is limited to such those charges as prevail in the community for similar treatment of injured persons of a like standard of living when such the treatment is paid for by the injured person and the employer shall is not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such this malpractice shall be deemed is considered part of the injury resulting from the accident and shall must be compensated for as such.
Section 42-15-80. After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the
Commission an administrative law judge, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Commission. The employee shall have has the right to have present at such the examination any duly a qualified physician or surgeon provided and paid by him. No fact communicated to or otherwise learned by any physician or surgeon who may have attended or examined the employee, or who may have been present at any an examination, shall be is privileged, either in hearings provided for by this title or any an action at law brought to recover damages against any an employer who may have accepted the compensation provisions of this title. If the employee refuses to submit himself to or in any way obstructs such the examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any a proceedings under pursuant to the provisions of this title shall must be suspended until such the refusal or objection ceases and no compensation shall may not be paid at any time be payable for the period of suspension unless in the opinion of the Commission administrative law judge the circumstances justify the refusal or obstruction. A physician, surgeon, or other health care provider may discuss and otherwise communicate these facts as an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions and impairments with representatives of the insurance carrier, the employer, the employee, their attorneys or the South Carolina Workers' Compensation Division without the employee's permission, and this communication must not violate physician-patient confidentiality. The employer or the Commission administrative law judge may in any a case of death may require an autopsy at the expense of the person requesting it.
Section 42-15-85. The burden of proof in a worker's compensation claim is on the injured employee. Causation in medically complex workers' compensation cases must be proven by expert witness opinion evidence.
Section 42-15-90. (A) Fees for attorneys and physicians and charges of hospitals for services
under pursuant to the provisions of this title shall be are subject to the approval of the Commission division ; but no. A physician or hospital shall be is not entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission this title in connection with the case.
Any A person who receives any a fee or other consideration or any gratuity on account of services so rendered, unless such the consideration or gratuity is approved by the Commission division or such 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 shall be is guilty of a misdemeanor and, upon conviction thereof, shall, for each offense, must be punished by a fine of fined not more than five hundred dollars or by imprisonment imprisoned not to exceed one year, or by both such fine and imprisonment.
Section 42-15-95. All existing information compiled by a health care facility, as defined in Section 44-7-130, or a health care provider licensed pursuant to Title 40 pertaining directly to a workers' compensation claim must be provided to the insurance carrier, the employer, the employee, their attorneys, or the
South Carolina Workers' Compensation Commission division, within fourteen days after receipt of written request. A health care facility and a health care provider may charge a fee for the search and duplication of a medical record, but the fee may not exceed sixty-five cents per for each page for the first thirty pages and fifty cents per for each page for all other pages, and a clerical fee for searching and handling not to exceed fifteen dollars per for each request plus actual postage and applicable sales tax. The facility or provider may charge a patient or the patient's representative no more than the actual cost of reproduction of an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead costs associated with the duplication. If a treatment facility or physician fails to send the requested information within forty-five days after receipt of the request, the person or entity making the request may apply to the commission for an appropriate penalty payable to the commission division, not to exceed two hundred dollars."
SECTION 37. Chapter 17, Title 42 of the 1976 Code is amended to read:
Section 42-17-10. If more than seven days after the date of an injury or at any time in case of death, the employer and the injured employee or his dependents reach an agreement in regard to compensation
under pursuant to the provisions of this title, a memorandum of the agreement in the form prescribed by the Commission division accompanied by a full and complete medical report shall must be filed with the Commission division within fifteen days after agreement has been reached by the parties for approval of the Commission division ; otherwise, such. This agreement shall be is voidable by the employee or his dependents. All such of these agreements shall be are subject to adjustment and correction as to the compensable rate if subsequent to filing with the Commission division it is determined that such the rate does not reflect the correct average weekly wage of the claimant. If approved by the Commission division, the memorandum shall for all purposes be is enforceable by a court's decree as specified in this title.
Section 42-17-20. If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation
under pursuant to the provisions of this title within fourteen days after the employer has knowledge of the injury or after a death or if they have reached such an agreement which has been signed and filed with the Commission division and compensation has been paid or is due in accordance therewith with it and the parties thereto to it then disagree as to the continuance of any weekly payment under such the agreement, either party may make application to the Commission division for a hearing in regard to the matters at issue and for a ruling thereon on it. Immediately after such the application has been received the Commission division shall forward the request to the administrative law judge, who shall set a date for a hearing, which must be held as soon as practicable, and shall notify the parties at issue of the time and place of such the hearing. The hearing shall be held in the city or county in which the injury occurred, unless otherwise agreed to by the parties and authorized by the Commission.
Section 42-17-30. The
commission or any member thereof may administrative law judge, upon the application of either party or upon its own motion, may appoint a disinterested and duly qualified physician or surgeon to make any necessary medical examination of any an employee and to testify in respect thereto to it. The physician or surgeon must be allowed traveling expenses and a reasonable fee in accordance with a fee schedule set by the commission division. The commission administrative law judge may allow additional reasonable amounts in extraordinary cases. The commission or any member thereof administrative law judge has the discretion to order either party to pay the fees and expenses of the physician or surgeon, or the commission or any member thereof administrative law judge may order the parties to share responsibility for payment of the fees and expenses.
(A) The commission or any of its members An administrative law judge shall hear the parties at issue and their representatives and witnesses and shall determine the dispute in a summary manner. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, must be filed with the record of the proceedings and a copy of the award must immediately must be sent to the parties in dispute. The parties may be heard by a deputy, in which event he shall swear or cause the witnesses to be sworn and shall transmit all testimony to the commission for its determination and award.
(B) In the event any commissioner or any member of his family residing in the commissioner's household or any employee of the Workers' Compensation Commission receives an injury in the course of employment, the case must be heard and determined by the circuit court judge in the county in which the injury occurred. The clerk of court shall docket these cases in the file book for the court of common pleas and these cases must be heard in that court. These cases may be called up for trial out of their order by either party. An appeal from an order of the circuit court judge, pursuant to this subsection, shall be taken in the manner provided by the South Carolina Appellate Court Rules. If the order is not appealed, payment must be made as provided in Section 42-17-60. However, this subsection does not apply with respect to claims involving medical benefits only; for claims solely involving medical benefits, subsection (A) applies.
If an application for review is made to the Commission within fourteen days from the date when notice of the award shall have been given, the Commission shall review the award and, if good grounds be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award.
Each application for commission review must be accompanied by a fee equal to that charged in circuit court for filing a summons and complaint in order to defray the costs of the review. If the commission determines at the conclusion of the review that the appeal was without merit, it may charge, in its sole discretion, the appellant an additional fee not to exceed two hundred fifty dollars. RESERVED.
Section 42-17-60. The award of
the commission an administrative law judge, as provided in Section 42-17-40, if not reviewed in due time, or an award of the commission upon such review, as provided in Section 42-17-50, is conclusive and binding as to all questions of fact. However, either party to the dispute, within thirty days from the date of the award or within thirty days after receipt of notice to be sent by registered mail of the award, but not thereafter after that time, may appeal from the decision of the commission administrative law judge to the court of common pleas of the county in which the alleged accident happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. Notice of appeal must state the grounds of the appeal or the alleged errors of law. In case of an appeal from the decision of the commission an administrative law judge on questions of law, the appeal does not operate as a supersedeas and thereafter after that time the employer is required to make payment of the award involved in the appeal or certification until the questions at issue have been fully determined in accordance with the provisions of this title.
Any A party in interest may file in the court of common pleas of the county in which the injury occurred a certified copy of a memorandum of agreement approved by the Commission division, an order or decision of the Commission administrative law judge, or an award of the Commission administrative law judge unappealed from or an award of the Commission affirmed upon appeal, whereupon such where the court shall render renders judgment in accordance therewith with it and notify the parties. Such The judgment shall have has the same effect and all proceedings in relation thereto shall thereafter after that time must be the same as though such the judgment had been rendered in a suit duly heard and determined by such the court. But If the judgment debtor shall file files a certificate duly issued by the Commission division, showing compliance with Section 42-5-20, with the clerk of the court in the county in which such the judgment is docketed, such the clerk shall make upon the judgment roll an entry showing the filing of such the certificate which shall operate as a discharge of the lien of such the judgment and no execution shall must be issued thereon on it. But If at any time there is default in the payment of any an installment due under the award set forth in such the judgment the court may, upon application for cause and after ten days' notice to the judgment debtor, may order the lien of such the judgment restored and execution or other proper process may be immediately may be issued thereon on it for past-due installments and for future installments as they may become due.
If the Commission or any court before whom any proceedings are brought under this Title shall determine that such proceedings have been brought, prosecuted or defended without reasonable grounds, it may assess the whole cost of the proceedings upon the party who has brought or defended them. RESERVED.
Section 42-17-90. Upon
its own motion or upon the application to the division of any party in interest on the ground of a change in condition, the Commission administrative law judge may review any an award and on such the review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately shall send to the parties a copy of the order changing the award. No such The review shall does not affect such the award as regards to any moneys monies paid and no such this review shall may not be made after twelve months from the date of the last payment of compensation pursuant to an award under provided by this Title."
SECTION 38. Chapter 19 of Title 42 of the 1976 Code is amended to read:
Section 42-19-10. (A)
Every An 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 division.
(B) If the injury requires minimal medical attention at a cost not to exceed an amount specified by regulation of the
Workers' Compensation Commission department, and does not cause more than one lost workday or permanency, the employer is not required to make a written report to the commission division or the employer's insurance carrier, provided the employer maintains a record as prescribed by the commission division and pays directly the incurred cost of the resulting medical attention. The department shall provide a procedure for electronic filing of these reports.
(C) All other injuries must be reported in writing or by electronic means to the
commission division 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 department must be reported annually on a form and at a time prescribed by the commission division.
(2) An injury involving compensable lost time, medical attention in excess of the limit established by
commission department regulation in item (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 division.
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 pursuant to the provisions of Title 42.
Section 42-19-20. Upon the termination of the disability of an injured employee, or if the disability extends beyond a period of sixty days then also at the expiration of
such that period, the employer shall make a supplementary report in writing or by electronic means to the Commission division on blanks approved by the Commission division for this purpose.
Any An employer or insurance carrier who refuses or neglects to submit required forms, records, and reports as may be necessary for the proper handling or adjudication of a claim is liable for a penalty of not less than ten dollars nor more than one five hundred dollars for each refusal or neglect. The fine provided in this section may be assessed by the commission with the right of review and appeal as in other cases division.
Section 42-19-40. The records of the
Commission division, in so far as they refer to accidents, injuries, and settlements, shall is not be open to the public, but only to parties satisfying the Commission division of their interest in such the records and of the right to inspect them.
Section 42-19-50. (A)
Every An insurance carrier providing coverage under the workers' compensation law shall file a report of coverage with the Industrial Commission division within thirty days from the inception date of the policy on forms prescribed by the Commission division or in a manner prescribed by the division.
Any An insurance company who refuses or neglects to properly submit the required forms is liable for a penalty of not less than one hundred dollars and not more than two hundred fifty one thousand dollars for each day's refusal to so file. The fine provided for in this section may be assessed by the commission with the right to review and appeal as in other cases division."
SECTION 39. Sections 42-1-90 42-11-130, 42-11-140, 42-11-150, 42-11-160, 42-11-170, 42-11-180, 42-11-185, and 42-11-190 of the 1976 Code are repealed.
SECTION 40. This act takes effect upon approval by the Governor.
This web page was last updated on Friday, December 4, 2009 at 3:39 P.M.