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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 42-1-180 SO AS TO DEFINE "PROFESSIONAL SPORTS TEAM PLAYER" FOR PURPOSES OF THE SOUTH CAROLINA WORKERS' COMPENSATION LAW; BY ADDING 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 42-7-315 SO AS TO PROVIDE FOR THE ORDERLY DISSOLUTION OF THE SECOND INJURY FUND AND TO PROVIDE FOR SUBSEQUENT ACTIONS TO BE TAKEN BY THE BUDGET AND CONTROL BOARD RELATING TO THE WINDING DOWN OF OPERATIONS OF THE FUND; BY ADDING SECTION 42-15-85 SO AS TO PROVIDE THAT THE BURDEN OF PROOF IS ON THE EMPLOYEE, AND TO PROVIDE HOW CAUSATION IN MEDICALLY COMPLEX WORKERS' COMPENSATION CASES MUST BE PROVEN, TO PROVIDE AN EXCEPTION, AND TO DEFINE "EXPERT WITNESS" FOR PURPOSES OF THIS SECTION; BY AMENDING SECTION 38-55-530, AS AMENDED, RELATING TO DEFINITIONS AS USED IN OMNIBUS INSURANCE FRAUD AND REPORTING IMMUNITY ACT, SO AS TO FURTHER DEFINE "FALSE STATEMENT AND MISREPRESENTATION"; BY AMENDING SECTION 38-55-540, RELATING TO CRIMINAL PENALTIES FOR MAKING FALSE STATEMENTS OR MISREPRESENTATIONS, SO AS TO PROVIDE REVISED CRIMINAL PENALTIES FOR MAKING FALSE STATEMENTS OR MISREPRESENTATIONS IN CONNECTION WITH AN INSURANCE TRANSACTION; BY AMENDING SECTION 38-55-560, RELATING TO THE INSURANCE FRAUD DIVISION BY THE OFFICE OF THE ATTORNEY GENERAL, SO AS TO AUTHORIZE THE ATTORNEY GENERAL TO HIRE A FORENSIC ACCOUNTANT; BY AMENDING SECTION 42-1-160, AS AMENDED, RELATING TO THE DEFINITIONS OF "INJURY" AND "PERSONAL INJURY", SO AS TO FURTHER DEFINE THESE TERMS; BY AMENDING SECTION 42-1-360, RELATING TO EXEMPTION OF CASUAL EMPLOYEES AND CERTAIN OTHER EMPLOYMENTS FROM THE SOUTH CAROLINA WORKERS' COMPENSATION LAW, SO AS TO INCLUDE "PROFESSIONAL SPORTS TEAM PLAYER" IN THE EXEMPTION; BY AMENDING SECTION 42-3-20, RELATING TO THE MEMBERSHIP, TERMS OF OFFICE, VACANCIES, AND DUTIES OF THE WORKERS' COMPENSATION COMMISSION, SO AS TO INCREASE THE COMMISSION'S MEMBERSHIP AND REVISE THE PROCEDURE FOR HEARING CONTESTED CASES; BY AMENDING SECTION 42-9-30, AS AMENDED, RELATING TO THE AMOUNT OF COMPENSATION AND THE PERIOD OF DISABILITY FOR CERTAIN INJURIES, SO AS TO PROVIDE FOR THE DEFINITION OF "PERMANENT MEDICAL IMPAIRMENT"; BY AMENDING SECTION 42-9-60, RELATING TO COMPENSATION THAT IS NOT ALLOWED WHEN INJURY OR DEATH IS CAUSED BY INTOXICATION OR WILFUL INTENTION OF EMPLOYEE, SO AS TO EXCLUDE FROM COVERAGE INJURIES CAUSED BY THE INFLUENCE OF ALCOHOL OR ILLEGAL DRUGS; BY AMENDING SECTION 42-9-360, AS AMENDED, RELATING TO THE ASSIGNMENTS OF COMPENSATION AND THE EXEMPTIONS FROM CLAIMS OF CREDITORS AND TAXES, SO AS TO MAKE CLAIMS FOR COMPENSATION NOT SUBJECT TO ASSIGNMENT; BY AMENDING SECTION 42-11-10, RELATING TO THE DEFINITION OF "OCCUPATIONAL DISEASE", SO AS TO FURTHER DEFINE THIS TERM; BY AMENDING SECTION 42-15-60, RELATING TO MEDICAL TREATMENT AND SUPPLIES BEING FURNISHED AND AN EMPLOYEE'S REFUSAL TO ACCEPT TREATMENT, SO AS TO PROVIDE FOR THE TERMINATION OF THE EMPLOYER'S OBLIGATION TO PROVIDE MEDICAL BENEFITS UNDER CERTAIN CIRCUMSTANCES; BY AMENDING SECTION 42-15-80, RELATING TO PRIVILEGED INFORMATION COMMUNICATED AT EMPLOYEE EXAMINATIONS, SO AS TO PROVIDE THAT A PHYSICIAN, SURGEON, OR OTHER HEALTH CARE PROVIDER, WITHOUT THE PERMISSION OF THE EMPLOYEE, MAY DISCUSS AND COMMUNICATE AN EMPLOYEE'S MEDICAL HISTORY, DIAGNOSIS, CAUSATION, COURSE OF TREATMENT, PROGNOSIS, WORK RESTRICTIONS, AND IMPAIRMENTS WITH THE REPRESENTATIVE OF THE INSURANCE CARRIER, THE EMPLOYER, THE EMPLOYEE, THEIR ATTORNEY, THE REHABILITATION PROFESSIONAL, OR THE COMMISSION; BY AMENDING SECTION 42-15-90, RELATING TO FEES OF ATTORNEYS AND PHYSICIANS AND HOSPITAL CHARGES APPROVED BY THE COMMISSION, SO AS TO PROVIDE FOR THE ATTORNEY'S FEES FOR REPRESENTING AN EMPLOYEE BEFORE THE COMMISSION; BY AMENDING 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", TO PROVIDE THAT ALL MEDICAL AND VOCATIONAL INFORMATION INSTEAD OF ALL INFORMATION COMPILED BY A HEALTH CARE FACILITY OR PROVIDER BE PROVIDED WITHIN A CERTAIN TIME, 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 BY AMENDING SECTION 42-17-90, RELATING TO THE REVIEW OF AN AWARD ON CHANGE OF A CONDITION, SO AS TO PROVIDE THAT IN OCCUPATIONAL DISEASE CASES, A REVIEW MUST NOT BE MADE AFTER TWELVE MONTHS FROM THE DATE OF THE LAST PAYMENT OF BENEFITS.
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. 'Professional sports team player' means a person who participates in the game of professional sports for wages, earnings, or salary, within the meaning of this title, as an employee of an employer."
SECTION 2. 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 3. Chapter 7, Title 42 of the 1976 Code is amended by adding:
"Section 42-7-315. (A) The Second Injury Fund shall not reimburse a self-insured employer or insurer for an otherwise qualifying injury occurring after June 30, 2007. The fund shall continue to reimburse self-insured employers or insurers for qualifying claims resulting from injuries occurring on or before June 30, 2007.
(B) A Notice of Claim may not be filed with the fund, pursuant to Section 42-9-400, after December 31, 2010, and a Request for Hearing may not be filed after December 31, 2011, for the purpose of establishing the validity for a claim for fund reimbursement.
(C) The Budget and Control Board shall require an audit to be conducted of fund liabilities no earlier than July 1, 2012, and no later than June 30, 2013. Funding for this audit must be obtained from funds deposited in the fund's trust fund. Based on information determined in the audit, the Budget and Control Board shall prepare a report to the Speaker of the House of Representatives and to the President of the Senate, no later than January 1, 2014. The report must include recommendations to the General Assembly for the efficient and expeditious closure of the fund. The report must include:
(1) an accounting of the financial affairs of the fund. The accounting must include a recommendation of whether the remaining liability is fully funded through an accelerated assessment plan and when further assessments of employers and insurers is discontinued;
(2) a timetable for the payment of unfunded liabilities including a recommendation on how remaining claims may be funded and how they must be resolved. This recommendation must include consideration of:
(a) utilization of annuities to liquidate lifetime claims;
(b) feasibility of a loss portfolio transfer of outstanding claims to a private insurer or other qualified party; and
(c) feasibility of transferring claims to another state agency for liquidation;
(3) a recommended timetable for the orderly winding down of the affairs of the fund. The recommendation must include a plan for the individual employees of the fund specifying which employees are eligible for retirement and other arrangements for employment, if any; and
(4) a recommendation for the transfer of books, records, and property of the fund to another state agency."
SECTION 4. Chapter 15, Title 42 of the 1976 Code is amended by adding:
"Section 42-15-85. (A) The burden of proof in a workers' compensation claim is on the employee. Causation must be proven with expert medical evidence stated to a reasonable degree of medical certainty in all claims, except claims for an occupational disease pursuant to the provisions of Chapter 11 of this title and claims for a change of condition pursuant to the provisions of Section 42-17-90. In claims for an occupational disease, the employee shall establish that the occupational disease arose directly and naturally from exposure in this State to the hazards peculiar to the particular employment with clear and convincing medical evidence. In claims for a change of condition, the employee shall establish by clear and convincing evidence that there has been a physical change of condition caused by the original injury, subsequent to the last payment of compensation.
(B) As used in this section, 'expert witness' means an expert who is qualified by reason of education, training, and experience to render an opinion as to the nature and extent of an employee's medical condition 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 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."
SECTION 5. Section 38-55-530(D) of the 1976 Code is amended to read:
"(D) 'False statement and misrepresentation' means a statement or representation made by a person that is false, material, made with the person's knowledge of the falsity of the statement, and made with the intent of obtaining or causing another to obtain or attempting to obtain or causing another to obtain an undeserved economic advantage or benefit or made with the intent to deny or cause another to deny any benefit or payment in connection with an insurance transaction and such shall constitute fraud. 'False statement and misrepresentation' specifically includes, but is not limited to, an intentional false report of business activities or the intentional miscount or misclassification by an employer of its employees to obtain a favorable insurance premium, payment schedule, or other economic benefit."
SECTION 6. Section 38-55-540 of the 1976 Code is amended to read:
"Section 38-55-540. (A) Any A person or an insurer who makes a false statement or misrepresentation, and any other person knowingly, with an intent to injure, defraud, or deceive, who assists, abets, solicits, or conspires with such a person or an insurer to make a false statement or misrepresentation, is guilty of a:
(1) misdemeanor, for a first offense violation, if the amount of the economic advantage benefit received is less than one thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed more than five hundred dollars or by imprisonment imprisoned not to exceed more than thirty days;
(2) misdemeanor, for a first offense violation, if the amount of the economic advantage benefit received is one thousand dollars or more but less than ten thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed more than fifty ten thousand dollars or by imprisonment for a term imprisoned not to exceed more than three years, or by both, such fine and imprisonment and must pay the amount of restitution and tax owed;
(3) felony, for a first offense violation, if the amount of the economic advantage benefit received is ten thousand dollars or more but less than fifty thousand dollars. Upon conviction, the person must be fined not more than fifty thousand dollars or imprisoned not more than five years, or both, and must pay the amount of restitution and tax owed;
(4) felony, for a first offense violation, if the amount of the economic advantage benefit received is fifty thousand dollars or more. Upon conviction, the person must be fined not more than one hundred thousand dollars or imprisoned not more than ten years, or both, and must pay the amount of restitution and tax owed;
(5) felony, for a second or subsequent violation, regardless of the amount of the economic advantage benefit received. Upon conviction, the person must be punished by a fine fined not to exceed more than fifty thousand dollars or by imprisonment for a term imprisoned not to exceed more than ten years, or by both, such fine and imprisonment and must pay the amount of restitution and tax owed.
(B) Any A person or an insurer convicted under pursuant to the provisions of this section must be ordered to make full restitution to the a victim or victims for any economic advantage or benefit which has been obtained by the person or insurer as a result of that violation."
SECTION 7. Section 38-55-560 of the 1976 Code is amended by adding at the end:
"(E) The Attorney General is authorized to hire, employ, and reasonably equip one forensic accountant at a salary of not less than one hundred thousand dollars annually, and this forensic accountant must be assigned to the Insurance Fraud Division of the Attorney General's Office. A person is not qualified to be hired and the Insurance Fraud Division may not hire a forensic accountant unless he possesses and maintains a current license to engage in the practice of accounting pursuant to the provisions of Chapter 2, Title 40."
SECTION 8. Section 42-1-160 of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"Section 42-1-160. (A) 'Injury' and 'personal injury' shall mean means only injury by accident arising out of and in the course of the employment and shall does not include a disease in any form, except when it results naturally and unavoidably from the accident and except such those diseases as are compensable under provided by the provisions of Chapter 11 of this title. An employee shall establish that the injury arose out of employment with expert medical evidence stated to a reasonable degree of certainty. In construing this section, an accident arising out of and in the course of employment shall include includes employment of an employee of a municipality outside the corporate limits of the municipality when the employment was ordered by a duly authorized employee of the municipality.
(B) Any stress, mental injury, heart attack, stroke, embolism, or aneurism arising out of and in the course of employment, unaccompanied by other physical injury and resulting in mental illness or injury is not a is not considered a personal injury unless it is established by clear and convincing medical evidence that the stressful employment conditions causing the stress, mental injury, heart attack, stroke, embolism, or aneurism were extraordinary and unusual in comparison to the normal conditions of the particular employment.
(C) Any stress, mental injury, heart attack, stroke, embolism, or aneurism arising out of and in the course of employment unaccompanied by other physical injury is not considered compensable if it results from any event or series of events which is incidental to normal employer/employee relations including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations, except when these actions are taken in an extraordinary and unusual manner.
(D) 'Accident', as used in this section, means an unexpected event or unusual strain identifiable by the time and place of occurrence and producing at the time of occurrence objective symptoms of an injury caused by a specific event during work. An injury is not compensable because work was a triggering or precipitating factor."
SECTION 9. Section 42-1-360 of the 1976 Code is amended by adding at the end:
"(6) Professional sports team player, as defined in Section 42-1-180; unless the employer voluntarily elects to be bound by this title."
SECTION 10. Section 42-3-20 of the 1976 Code is amended to read:
"Section 42-3-20. (A) The commission shall consist consists of seven eleven 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.
(B) The commissioners, other than the chairman, 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 that come before the department for judicial disposition. Full Commission reviews shall review hearings must be conducted by six commissioners only an appellate panel, made up of the three commissioners, other than the chairman, with the most seniority on the commission. In the event of the absence of one or more of the appellate panel members, the chairman of the commission shall serve as a member of the appellate panel. The commissioners who are designated as members of the appellate panel must not be assigned as hearing commissioners, but shall hear and decide petitions for review of single commissioner decisions on a full-time basis 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."
SECTION 11. Section 42-9-30 of the 1976 Code, as last amended by Act 412 of 1988, is further amended to read:
"Section 42-9-30. (A) As used in this section, 'permanent medical impairment' means only such permanent medical impairment or loss of use of the specified body member, as determined by a qualified medical professional in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment at the time of the determination. Other factors including, but not limited to, age, education, and vocational history may not be considered in determining benefits provided by this schedule. The compensation for partial medical impairment of a body member, hearing, or vision must be the proportion of the payments provided by this schedule for total medical impairment of the body member, hearing, or vision, as the partial medical impairment bears to total medical impairment.
(B) In cases included in the following schedule, the disability in each case shall be is deemed to continue only for the period specified in this section and the compensation so paid for such injury shall be as specified therein, to wit paid for the injury is limited to that provided by this section, as follows:
(1) For the loss permanent medical impairment of a thumb, sixty-six and two-thirds percent of the average weekly wages during sixty-five weeks;
(2) For the loss permanent medical impairment of a first finger, commonly called the index finger, sixty-six and two-thirds percent of the average weekly wages during forty weeks;
(3) For the loss permanent medical impairment of a second finger, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(4) For the loss permanent medical impairment of a third finger, sixty-six and two-thirds percent of the average weekly wages during twenty-five weeks;
(5) For the loss permanent medical impairment of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of the average weekly wages during twenty weeks;
(6) The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger and the compensation shall be for one half of the periods of time above specified;
(7) The loss of more than one phalange shall be considered the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;
(8) For the loss permanent medical impairment of a great toe, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(9)(7) For the loss permanent medical impairment of one of the toes other than a great toe, sixty-six and two-thirds percent of the average weekly wages during ten weeks;
(10) The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe and the compensation shall be for one half the periods of time above specified;
(11) The loss of more than one phalange shall be considered as the loss of the entire toe;
(12)(8) For the loss permanent medical impairment of a hand, sixty-six and two-thirds percent of the average weekly wages during one hundred and eighty-five weeks;
(13)(9) For the loss permanent medical impairment of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;
(14)(10) For the loss permanent medical impairment of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(15)(11) For the loss permanent medical impairment of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;
(16) For the loss of an eye , sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(17)(12) For the complete loss permanent medical impairment of hearing in one ear, sixty-six and two-thirds percent of the average weekly wages during eighty weeks; and for the complete loss permanent medical impairment of hearing in both ears, sixty-six and two-thirds percent of the average weekly wages during one hundred sixty-five weeks, and the commission shall by promulgate regulation regulations to provide for the determination of proportional benefits for total or partial loss medical impairment of hearing based on accepted national medical standards.;
(18)(13) Total loss of use of a member or loss of vision permanent medical impairment of an eye shall be considered as equivalent to the loss of such member or eye. The compensation for partial loss of or for partial loss of use of a member or for partial loss of or vision of an eye, shall be such proportion of the payments herein provided for total loss as such partial loss bears to total loss. sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(19)(14) For the total loss of use permanent medical impairment 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 schedule 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.;
(20)(15) For the total or partial loss of, or loss of use of, permanent total medical impairment of a member, organ, or part of the body not covered herein in this schedule and not covered under provided by Sections Section 42-9-10 or 42-9-20, sixty-six and two-thirds of the average weekly wages not to exceed five hundred weeks. The commission shall by promulgate regulations to prescribe the ratio which the partial loss or loss or partial loss of use medical impairment of a particular member, organ, or body part bears to the whole man person, basing such these ratios on accepted medical standards and such these ratios shall determine the benefits payable under as provided by the provisions of this subsection.;
(21)(16) Proper and equitable benefits shall be paid for serious permanent disfigurement of the face, head, neck, or other area normally exposed in employment, proper and equitable benefits must be paid not to exceed fifty weeks. Where If benefits are paid or payable for injury to or loss permanent medical impairment of a particular member or organ under by other provisions of this title, no additional benefits shall must not be paid under this paragraph, except that disfigurement shall also include includes compensation for in cases of serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation.
(C) The weekly compensation payments referred to in this section shall all be are subject to the same limitations as to maximum and minimum as set out provided in Section 42-9-10."
SECTION 12. Section 42-9-60 of the 1976 Code is amended to read:
"Section 42-9-60. (A) No Compensation shall be payable if the is not allowed for injury or death was occasioned by the intoxication of the employee proximately caused 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, or by the wilful intention of the employee to injure or kill himself or another.
(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 must be presumed 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 must be presumed 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 must be presumed 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 must be presumed that the accident and injury or death were proximately caused by the legal substance. This presumption may be rebutted.
(C) With the exception of the presumptions provided for in this section, the burden of proof is upon the party who claims the applicability of this section."
SECTION 13. Section 42-9-360 of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"Section 42-9-360. (A) No A claim for compensation under provided for by this title shall be is not assignable and all compensation and claims therefor shall be are exempt from all claims of creditors and from taxes.
(B) It shall be is unlawful for an authorized health care provider to actively pursue collection procedures against a workers' compensation claimant prior to before the final adjudication of the claimant's claim. Nothing in this section shall must be construed to prohibit the collection from and demand for collection from a workers' compensation insurance carrier or self-insured employer. Violation of this section, after written notice to the provider from the claimant or his representative that adjudication is ongoing, shall result results in a penalty of five hundred dollars payable to the workers' compensation claimant.
(C) Any A person who receives any fee or other consideration or any gratuity on account of services so rendered, unless the consideration or gratuity is approved by the commission or the court, or who makes it a business to solicit employment for a lawyer or for himself in respect of any claim or award for compensation is guilty of a misdemeanor and, upon conviction, must, for each offense, be fined for each offense not more than five hundred dollars or imprisoned not more than one year, or both.
(D) Payment to an authorized health care provider for services shall 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 has received a request to review the medical bill."
SECTION 14. Section 42-11-10 of the 1976 Code is amended to read:
"Section 42-11-10. (A) The words 'Occupational disease' mean means a disease arising out of and in the course of employment which that is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease shall be deemed is considered an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of continuous exposure to the normal working conditions thereof of that particular trade, process, occupation, or employment. In claims for an occupational disease, the employee shall establish that the occupational disease arose directly and naturally from exposure in this State to the hazards peculiar to the particular employment with clear and convincing evidence.
(B) No A disease shall be deemed is not considered an occupational disease when if it:
(1) It does not result directly and naturally from exposure in this State to the hazards peculiar to the particular employment;
(2) It results from exposure to outside climatic conditions;
(3) It is a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside of his employment;
(4) It is one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and a natural incident of an occupational disease or unless there is a constant exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation;
(5) It is any disease of the cardiac, pulmonary, or circulatory system not resulting directly from abnormal external gaseous pressure exerted upon the body or the natural entrance into the body through the skin or natural orifices thereof of the body of foreign organic or inorganic matter under circumstances peculiar to the employment and the processes utilized therein in that particular trade, process, occupation, or employment; or
(6) It is any a chronic disease of the skeletal joints; or
(7) is a condition of the neck, back, or spinal column.
(C) Compensation is not payable for any occupational disease unless the claimant suffers disability as described in Section 42-9-10 or 42-9-20, and disability from an occupational disease is not compensable pursuant to the provisions of Section 42-9-30."
SECTION 15. Section 42-15-60 of the 1976 Code is amended to read:
"Section 42-15-60. (A) The employer shall provide 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 an additional time as in the judgment of the commission will tend to lessen the period of disability and, degree of medical impairment, as evidenced by expert medical evidence stated to a reasonable degree of medical certainty. In addition thereto to it, such the original artificial members as may be reasonably may be 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 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 any period 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 and, in addition, such surgical and hospital service and supplies as may be deemed and any medical care or treatment that is considered necessary by such the attending physician, or the commission unless otherwise ordered by the commission for good cause shown. The refusal of an employee to accept any medical, hospital, surgical, or other treatment or evaluation when provided by the employer or ordered by the commission shall bar such bars the employee from further compensation until such the refusal ceases and no compensation shall at any time be is not paid for the period of suspension refusal unless in the opinion of the commission the circumstances justified the refusal, in which case the commission 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 ordered by the commission.
(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 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 shall be also furnished during the life of the injured employee or so long as they are necessary. In all cases that do not involve an award of permanent and total disability benefits provided by Section 42-9-10, the employee has the burden of proving by clear and convincing evidence that all medical benefits claimed following the date of last payment of disability benefits or, in cases where no disability benefits were paid, the date of the accident, were reasonably necessary to lessen the employee's causally-related medical impairment. After an employee has reached maximum medical improvement, the employee's entitlement to additional medical benefits is limited to that provided in this section, unless the employee files a timely petition for review of the order or award on grounds of change of condition provided by Section 42-17-90. In cases involving awards of total disability benefits provided by Section 42-9-10, the employee has the burden of proving by a preponderance of the evidence that all medical benefits claimed more than ten weeks after the accident were proximately caused by the accident."
SECTION 16. Section 42-15-80 of the 1976 Code is amended to read:
"Section 42-15-80. (A) After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the commission, 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 the right to have present at such examination any duly 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 examination, shall must be privileged, either in hearings provided for by this title or any action at law brought to recover damages against any 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 proceedings under this title shall must be suspended until such the refusal or objection ceases and no compensation shall is not payable at any time be payable for the period of suspension unless in the opinion of the commission the circumstances justify the refusal or obstruction. The employer or the commission may require in any case of death require an autopsy at the expense of the person requesting it.
(B) A physician, surgeon, or other health care provider may discuss and otherwise communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the representative of the insurance carrier, the employer, the employee, their respective attorney, rehabilitation professional, or the commission without the employee's permission."
SECTION 17. Section 42-15-90 of the 1976 Code is amended to read:
"Section 42-15-90. (A) Fees for attorneys and physicians and charges of hospitals for services under provided pursuant to the provisions of this title shall be are subject to the approval of the commission; but no physician or hospital shall be is entitled to collect fees from an employer or insurance carrier until he has made the reports required by the commission in connection with the case.
(B) Fees for attorneys pursuant to the provisions of this title are subject to approval by the commission, but an attorney's fee for providing a claimant services pursuant to the provisions of this title may not exceed the percentage of the amount of compensation benefits secured as a result of the attorney's involvement as follows:
(1) twenty percent of the first five thousand dollars of the amount of the benefits secured;
(2) fifteen percent of the next five thousand dollars of the amount of the benefits secured;
(3) ten percent of the remaining amount of the benefits secured to be provided during the first ten years after the date the claim is filed; and
(4) five percent of the benefits secured after ten years.
(C) In approving a claimant's attorney's fee for services pursuant to the provisions of this title, the commission or any court of this State shall consider only those benefits secured by the attorney. An attorney is not entitled to attorney's fees for representation in any issue that was ripe, due, and owing and that reasonably could have been addressed, but was not addressed, during the pendency of other issues for the same injury. The amount, statutory basis, and type of benefits obtained through legal representation must be listed on all attorney's fees approved by the commission or any court of this State. For purposes of this section, the term 'benefits secured' does not include future medical benefits to be provided on any date more than five years after the date the claim is filed. If an offer to settle an issue pending before the commission or any court of this State is communicated in writing to the claimant or the claimant's attorney at least thirty days before the trial date on the issue, for purposes of calculating the amount of attorney's fees, the term 'benefits secured' is deemed to include only that amount awarded to the claimant above the amount specified in the offer to settle. If multiple issues are pending before the commission, the offer of settlement must address each issue pending and must state explicitly whether or not the offer on each issue is severable. The written offer also unequivocally must state whether or not it includes medical witness fees and expenses and all other costs associated with the claim.
(D) Neither the commission nor any court of this State shall approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his attorney, or any other agreement related to benefits pursuant to the provisions of this title that provides for an attorney's fee in excess of the amount permitted by this section. No retainer or other agreement between a claimant and his attorney may be for compensation in excess of the amount allowed as provided by this section.
(E) Any A person who receives any fee or other consideration or any gratuity on account of services so rendered, unless such the consideration or gratuity is approved by the commission or such a court of this State 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 more than one year, or by both such fine and imprisonment."
SECTION 18. 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, '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.
(B) 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 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 19. Section 42-17-90 of the 1976 Code is amended to read:
"Section 42-17-90. Upon its own motion or upon the application of any a party in interest on the ground of a change in condition, the commission may review any an award and on such that review may make an award ending, diminishing, or increasing the compensation previously awarded, upon proof by clear and convincing evidence that there has been a physical change of condition caused by the original injury, subsequent to the last payment of compensation. Any award is 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 any moneys monies paid and no such the review shall must not be made after twelve months from the date of the last payment of compensation pursuant to an award under provided by this title. In occupational disease cases, a review must not be made after twelve months from the date of the last payment of compensation provided by Section 42-9-10 or 42-9-20."
SECTION 20. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 21. Sections 1, 3, 5, 7, 9, 10(A), and 20 take effect upon approval by the Governor, and Sections 2, 4, 6, 8, 10(B), 11 through 19 take effect October 1, 2006, and only applies to workers' compensation claims arising on or after that date.
This web page was last updated on Tuesday, June 23, 2009 at 2:36 P.M.