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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 42-15-85 TO CHAPTER 15, TITLE 42 SO AS TO REQUIRE THE BURDEN OF PROOF IN A WORKERS' COMPENSATION CLAIM TO BE ON THE EMPLOYEE, TO PROVIDE HOW CAUSATION IN MEDICALLY COMPLEX CASES MUST BE PROVEN, AND TO DEFINE EXPERT WITNESS; TO AMEND SECTION 38-55-530, AS AMENDED, RELATING TO DEFINITIONS AS USED IN THE OMNIBUS INSURANCE FRAUD AND REPORTING IMMUNITY ACT, SO AS TO FURTHER DEFINE "FALSE STATEMENT AND MISREPRESENTATION"; TO AMEND SECTION 38-55-540, RELATING TO CRIMINAL PENALTIES FOR MAKING FALSE STATEMENTS OR MISREPRESENTATIONS, SO AS TO PROVIDE ADDITIONAL FELONY OFFENSES; TO AMEND SECTION 38-55-560, RELATING TO THE INSURANCE FRAUD DIVISION IN THE OFFICE OF THE ATTORNEY GENERAL, SO AS TO AUTHORIZE THE ATTORNEY GENERAL TO HIRE A FORENSIC ACCOUNTANT; TO AMEND SECTION 42-1-10, RELATING TO THE CITATION AND REFERENCES TO TERMS USED IN THE WORKERS' COMPENSATION LAW, SO AS TO PROVIDE FOR THE PURPOSES OF THE WORKERS' COMPENSATION LAW; TO AMEND SECTION 42-1-160, AS AMENDED, RELATING TO THE DEFINITIONS OF "INJURY" AND "PERSONAL INJURY", SO AS TO FURTHER DEFINE THESE TERMS AND TO ADD A DEFINITION FOR "ACCIDENT"; TO AMEND SECTION 42-9-30, AS AMENDED, RELATING TO THE AMOUNT OF COMPENSATION AND THE PERIOD OF DISABILITY FOR CERTAIN INJURIES, SO AS TO PROVIDE THAT AWARDS MUST BE DETERMINED BASED ON CERTAIN FACTORS, TO DEFINE "PERMANENT MEDICAL IMPAIRMENT", AND TO DELETE THE EXCEPTION FOR FIFTY PERCENT OR MORE LOSS OF THE USE OF THE BACK FOR COMPENSATION TO BE PAID UNDER THE SCHEDULE; TO AMEND SECTION 42-9-400, AS AMENDED, RELATING TO THE DEFINITION OF "PERMANENT PHYSICAL IMPAIRMENT" FOR PURPOSES OF REIMBURSEMENT TO AN EMPLOYER FROM THE SECOND INJURY FUND, SO AS TO LIMIT THE MEANING OF THE TERM TO AN AMPUTATED LIMB, LOSS OR PARTIAL LOSS OF SIGHT, AND RUPTURED INTERVERTEBRAL DISC AND TO PROVIDE FOR THE CLOSURE OF THE SECOND INJURY FUND ON JUNE 30, 2012; TO AMEND SECTION 42-11-10, RELATING TO THE DEFINITION OF "OCCUPATIONAL DISEASE", SO AS TO FURTHER DEFINE THE TERM AND TO PROVIDE FOR WHEN COMPENSATION FOR THIS DISEASE IS PAYABLE; TO AMEND 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 HOW LONG AN EMPLOYER MUST CONTINUE TO PROVIDE MEDICAL BENEFITS; TO AMEND SECTION 42-15-80, RELATING TO PRIVILEGED INFORMATION COMMUNICATED AT EMPLOYEE EXAMINATIONS, SO AS TO PROVIDE THAT A PHYSICIAN AND OTHER HEALTH CARE PROVIDERS, WITHOUT THE EMPLOYEE'S PERMISSION, MAY DISCUSS AND COMMUNICATE AN EMPLOYEE'S MEDICAL TREATMENT WITH THE REPRESENTATIVES OF THE INSURANCE CARRIER, THE EMPLOYER, THE EMPLOYEE, THEIR ATTORNEY, THE REHABILITATION PROFESSIONAL, OR THE WORKERS' COMPENSATION COMMISSION; 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 TO AMEND SECTION 42-17-90, RELATING TO THE REVIEW OF AN AWARD ON CHANGE OF A CONDITION, SO AS TO REQUIRE, IN OCCUPATION DISEASE CASES, THAT 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. 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 2. 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 3. 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 less than one hundred nor 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 less than two thousand nor 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 less than ten thousand nor 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 less than twenty thousand nor 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 less than ten thousand nor 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 4. 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, 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 5. Section 42-1-10 of the 1976 Code is amended to read:
"Section 42-1-10. This title shall be known and cited as 'The South Carolina Workers' Compensation Law'. All references in this title to "workmen's compensation" shall mean "workers' compensation"; provided, however, all state agencies and departments and all political subdivisions of the State must exhaust the use of all current forms, stationery, and any other printed material before using, printing, or preparing any new forms, stationery, or printed material reflecting the change effected by this section. (A) This title shall be known and cited as the 'South Carolina Workers' Compensation Law.
(B) This title must be strictly construed and applied to promote its underlying purposes as set forth in this section. Any and all case law inconsistent with the purposes set forth herein is specifically overruled.
(C) The purposes of this title and of the Workers' Compensation Law are:
(1) to pay timely temporary and permanent benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course and scope of their employment;
(2) to pay reasonable and necessary medical expenses resulting from these injuries or diseases;
(3) to improve workplace safety;
(4) to encourage the return to work of injured workers;
(5) to deter and punish fraud of agents, employers, employees, or any other party in the procurement of workers' compensation coverage, the provision or denial of benefits, or the provision of medical treatment;
(6) to promote the equitable and efficient resolution of workers' compensation claims; and
(7) to ensure an economically viable workers' compensation system in South Carolina."
SECTION 6. 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 7. 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. In cases included in the following schedule, awards shall be determined based on permanent medical impairment and additional factors, if present, which diminish the claimant's earning capacity. Additional factors are limited to age, education, and vocational history. 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 at the time of the determination in accordance with the most current edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. the The disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein, to wit:.
(1) for the loss of a thumb sixty-six and two-thirds percent of the average weekly wages during sixty-five weeks;
(2) for the loss 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 of a second finger, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(4) for the loss of a third finger, sixty-six and two-thirds percent of the average weekly wages during twenty-five weeks;
(5) for the loss 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 of a great toe, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(9) for the loss 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) for the loss of a hand, sixty-six and two-thirds percent of the average weekly wages during one hundred and eighty-five weeks;
(13) for the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;
(14) for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(15) for the loss 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) for the complete loss of hearing in one ear, sixty-six and two-thirds percent of the average weekly wages during eighty weeks; and for the complete loss 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 regulation provide for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards.;
(18) total loss of use of a member or loss of vision 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 vision of an eye shall be such proportion of the payments herein provided for total loss as such partial loss bears to total loss.;
(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 be such proportions of the periods of payment herein provided 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) for the total or partial loss of, or loss of use of, a member, organ or part of the body not covered herein and not covered under 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 regulations prescribe the ratio which the partial loss or loss or partial loss of use of a particular member, organ or body part bears to the whole man, basing such ratios on accepted medical standards and such ratios shall determine the benefits payable under this subsection.;
(21) proper and equitable benefits shall be paid for serious permanent disfigurement of the face, head, neck or other area normally exposed in employment, not to exceed fifty weeks. where benefits are paid or payable for injury to or loss of a particular member or organ under other provisions of this title no additional benefits shall be paid under this paragraph, except that disfigurement shall also include compensation for serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation.
The weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in Section 42-9-10."
SECTION 8. A. Section 42-9-400(d) of the 1976 Code is amended to read:
"(d)(1) As used in this section, 'permanent physical impairment' means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.
When an employer establishes his prior knowledge of the permanent impairment, then there shall be a presumption that the condition is permanent and that a hindrance or obstacle to employment or reemployment exists when the condition is one of the following impairments:
(1) Epilepsy
(2) Diabetes
(3) Cardiac disease
(4) Arthritis
(5)(i) Amputated foot, leg, arm or hand
(6)(ii) Loss of sight of one or both eyes or partial loss of uncorrected vision of more than seventy-five percent bilateral
(7) Residual disability from Poliomyelitis
(8) Cerebral palsy
(9) Multiple sclerosis
(10) Parkinson's disease
(11) Cerebral vascular accident
(12) Tuberculosis
(13) Silicosis
(14) Psychoneurotic disability following treatment in a recognized medical or mental institution
(15) Hemophilia
(16) Chronic ostemyelitis
(17) Ankylosis of joints
(18) Hyperinsulinism
(19) Muscular dystrophy
(20) Arteriosclerosis
(21) Thrombophlebitis
(22) Varicose Veins
(23) Heavy metal poisoning
(24) Ionizing radiation injury
(25) Compressed air sequelae
(26)(iii) Ruptured intervertebral disc
(27) Hodgkins disease
(28) Brain damage
(29) Deafness
(30) Cancer
(31) Sickle-cell anemia
(32) Pulmonary disease
(33) Mental retardation provided the employee's intelligence quotient is such that he falls within the lowest percentile of the general population. However, it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.
(34) Any other pre-existing disease, condition or impairment which is permanent in nature and which:
(a) Would qualify for payment of weekly disability benefits of seventy-eight weeks or more under Section 42-9-30 exclusive of benefits payable for disfigurement; or
(b) Would support a rating of seventy-eight or more weeks of weekly disability benefits when evaluated according to the standards applied to Workers' Compensation claims in South Carolina, or combines with a subsequent injury to cause a permanent impairment rated at seventy-eight weeks or more under Section 42-9-30 .
(2) If the paid claims of the fund for the fiscal year ending June 30, 2012, equal or exceed the total sum of eight million dollars, the Second Injury Fund shall not reimburse an employer or insurance carrier for an otherwise qualifying injury that occurs after June 30, 2012, but shall continue reimbursing employers and insurance carriers for qualifying claims resulting from injuries occurring on or before June 30, 2012. The Budget and Control Board must provide for the efficient and expeditious closure of the fund with the orderly winding down of the affairs of the fund so that the remaining liabilities of the fund are paid utilizing assessments, accelerated assessments, annuities, loss portfolio transfers, or such other mechanisms as may be reasonably determined necessary to fund any remaining liabilities of the fund.
(3) If the paid claims of the fund for the fiscal year ending June 30, 2012, do not exceed the total sum of eight million dollars, the Budget and Control Board shall require an audit to be conducted of fund liabilities as of June 30, 2012. Funding for this audit must be obtained from funds deposited in the fund's trust fund. Based on the information in the audit, the Budget and Control Board shall prepare a report to the Speaker of the House of Representatives and to the President Pro Tempore of the Senate, not later than January 1, 2013. The report must include its evaluation of the fund's operations."
B. On or after the effective date of this act, the Second Injury Fund shall not accept a claim for reimbursement from any employer or insurance carrier for any subsequent impairment unless the preexisting impairment is one of the permanent physical impairments enumerated in Section 42-9-400(d)(1).
C. The amendment to Section 42-9-400(D) of the 1976 Code as contained in this section is not intended to effect workers' compensation benefits to injured employees provided in any other provision of law."
SECTION 9. 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 10. 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 11. 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 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, or the commission without the employee's permission. A discussion, disclosure, or communication made by a physician, surgeon, or other health care provider pursuant to this section is not a violation of physician-patient confidentiality.
(C) The commission shall promulgate regulations establishing the role of rehabilitation professionals and other similarly situated professionals in workers' compensation cases with consideration given to these person's duties to both the employer and the employee and the standards of care applicable to the rehabilitation professional or other similarly situated professional as the case may be."
SECTION 12. 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 13. 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 14. 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 15. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:44 P.M.