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Sponsors: Reps. Sandifer and Leach
Document Path: l:\council\bills\dka\3326dw05.doc
Introduced in the House on May 26, 2005
Currently residing in the House Committee on Labor, Commerce and Industry
Summary: Workers' Compensation Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 5/26/2005 House Introduced and read first time HJ-27 5/26/2005 House Referred to Committee on Labor, Commerce and Industry HJ-28
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 42-1-180 SO AS TO LIMIT THE DISABILITY RATING ESTABLISHED BY THE SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION TO BE LESS THAN BUT MAY NOT EXCEED 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, ILLEGAL, OR LEGAL SUBSTANCES ARE FOUND TO BE PRESENT IN THE PERSON'S BODY WHICH MAY BE INFERRED TO CAUSE THE ACCIDENT AND INJURY OR DEATH; 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 AND TO PROVIDE A PAYMENT PROCEDURE IF THE EMPLOYEE IS THE SOLE PROVIDER FOR DEPENDENTS; BY ADDING SECTION 42-15-85 SO AS TO DEFINE "EXPERT WITNESS" IN A WORKERS' COMPENSATION CLAIM, TO PROVIDE THAT THE BURDEN OF PROOF IS ON THE CLAIMANT, AND TO PROVIDE THAT CAUSATION IN MEDICALLY COMPLEX WORKERS' COMPENSATION CASES MUST BE PROVEN BY EXPERT WITNESS TESTIMONY; 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 42-15-95, AS AMENDED, RELATING TO WORKERS' COMPENSATION CLAIMS AND THE DISCLOSURE OF INFORMATION BY HEALTH CARE PROVIDERS, SO AS TO DEFINE "MEDICAL AND VOCATIONAL INFORMATION" AND "REHABILITATION PROFESSIONAL", AND TO PROVIDE THAT THE MANNER OF COMMUNICATION BETWEEN THE HEALTH CARE PROVIDER AND THE EMPLOYER IS NOT LIMITED IF THE INFORMATION IS RELATED TO A WORKERS' COMPENSATION CLAIM; AND TO AMEND SECTION 42-9-260, AS AMENDED, RELATING TO AN EMPLOYER REQUESTING A HEARING BE HELD TO DETERMINE TERMINATION OF TEMPORARY DISABILITY PAYMENTS, SO AS TO PROVIDE IF AN EMPLOYEE HAS RECEIVED TEMPORARY DISABILITY PAYMENTS FOR AT LEAST ONE YEAR, THE EMPLOYEE IS PRESUMED TO HAVE REACHED MAXIMUM MEDICAL IMPROVEMENT, AND THE EMPLOYER MAY REQUEST A HEARING TO DETERMINE A PERMANENT DISABILITY AWARD, AND TO PROVIDE THAT THE HEARING MUST BE HELD WITHIN SIXTY DAYS OF THE DATE THE EMPLOYER REQUESTED A HEARING.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. 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. The award may be less than but may not exceed one hundred fifty percent of the AMA guidelines for impairment of similar body parts."
SECTION 2. Article 1, Chapter 1, Title 42 of the 1976 Code is amended by adding:
"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 an illegal drug 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 an illegal drug 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 an illegal drug or the controlled substance.
(3) If the employee unjustifiably refuses to submit to a reliable, scientific test to determine the presence of alcohol, an illegal drug, 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 illegal drugs or a controlled substance.
(B) If any amount of a legal substance that impairs a person's ability 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 the legal substance.
(C) 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 3. Article 1, Chapter 1, Title 42 of the 1976 Code is amended by adding:
"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 injure 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 4. Article 1, Chapter 1, Title 42 of the 1976 Code is amended by adding:
"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 5. 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 6. 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, unless the employee is the sole provider for dependent children or other dependents. Payment must be made to the Department of Social Services and the department shall administer these payments to the dependent children or other dependents."
SECTION 7. Chapter 15, Title 42 of the 1976 Code is amended by adding:
"Section 42-15-85. (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:
(1) is licensed by an appropriate regulatory agency to practice a profession in the location in which the expert practices or teaches;
(2)(a) is board certified by a national or international association or academy that administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or
(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(i) the active practice of the area of specialty of a profession for at least three of the last five years immediately preceding the opinion;
(ii) the teaching of the area of practice or specialty of a profession for at least half of his professional time as an employed member of the faculty of an educational institution that is accredited in the teaching of his profession for at least three of the last five years immediately preceding the opinion; or
(iii) any combination of the active practice or the teaching of a profession in a manner that meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion; and
(3) is an individual not covered by items (1) or (2), that has scientific, technical, or other specialized knowledge that may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both.
(B) The burden of proof in a workers' compensation claim is on the claimant. Causation in medically complex workers' compensation cases must be proven by expert witness testimony."
SECTION 8. 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 9. Section 42-15-95 of the 1976 Code, as last amended by Act 468 of 1994, is further amended to read:
"Section 42-15-95. (A) As used in this section:
(1) 'Medical and vocational information' means information collected in the process of assessing, planning, coordinating, monitoring, or evaluating the services required to address a claimant's health care needs through quality care promoting optimal recovery and rehabilitation.
(2) 'Rehabilitation professional' means a person possessing one more of the following professional credentials:
(a) certified rehabilitation counselor;
(b) certified registered rehabilitation nurse;
(c) certified disability management specialist;
(d) certified vocational evaluator;
(e) certified occupational health nurse;
(f) orthopedic nurse certified;
(g) certified case manager; or
(h) an individual actively working toward certification as a professional as defined in this subsection who is under the direct supervision of an individual that is certified as a professional as defined in this subsection.
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 shall furnish, upon request, all medical and vocational information pertaining directly to a workers' compensation claim must be provided to the insurance carrier, the employer, the employee, their attorneys or rehabilitation professionals, or the South Carolina Workers' Compensation Commission , within fourteen days after receipt of written request.
(C) 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.
(D) If a treatment facility or physician fails to
send furnish 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, not to exceed two hundred dollars."
SECTION 10. Section 42-9-260(D) of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"(D)(1) 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.
(2) If an employee has received temporary disability payments for a period of at least one year, the employee is presumed conclusively to have reached maximum medical improvement, and the employer may request a hearing to determine a permanent disability award, if the award is warranted. The hearing must be held within sixty days of the date of the employer's request for a hearing."
SECTION 11. This act takes effect upon approval by the Governor.
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