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Form 14B (Physician’s Statement) Modified Again by SCWCC

December 13, 2016 – The South Carolina Workers’ Compensation Commission has once again revised the Form 14B, Physician’s Statement, in an effort to further direct the treating physician to address all of the relevant information needed to determine issues of permanency and ongoing medical treatment.

Please note that the SCWCC will require the updated Form 14B to be completed by the authorized treating physician beginning on March 1, 2017.  After this date, we anticipate that the Commissioners will refuse to review/approve settlements or address litigation with unrepresented claimants if prior versions of the Form 14B have been completed.  For your convenience, we have included a link to the newest Form 14B. 

As always, please contact one of our South Carolina attorneys with any questions or concerns regarding the recent revision implemented by the SCWCC.        

South Carolina Workers’ Compensation Commission FORM 14B LINK

IMPORTANT UPDATE: Regarding Informal Conferences and Form 16A Settlements in South Carolina

July 7, 2016 – Effective July 7, 2016, the South Carolina Workers’ Compensation Commission updated the procedure regarding Form 16 and Form 16A settlement approval following an informal conference. Now, upon completion of a successful Informal Conference, the Deputy Commissioner will make a recommendation by signing the Form 16/16A and forwarding it to the Jurisdictional Commissioner for approval. If approved, the Commission will email the approved form to the adjuster or attorney for the carrier via e-mail. If the Commissioner does not approve the recommended settlement, the case will be sent to the next Jurisdictional Commissioner to be set for a hearing. Please see the attached notice for additional information.

The most immediate impact of this change is that Form 16A settlements will no longer be considered final following the Informal Conference; rather they will be finalized only after approval by the Jurisdictional Commissioner. Considering there is an additional step added to the procedure, we anticipate additional time will be required to finalize Form 16/16A settlements in the future. Additionally, please be advised that failed Form 16A settlements will now result in the matter being set for a hearing, which is consistent with the current practice for failed clincher conferences.

Should you have any questions about this update, please do not hesitate to contact one of our South Carolina workers’ compensation defense attorneys in the Greenville, Columbia or Charleston offices.

SC Case Law Update:  Change of Condition Claim Need Not Be Established by Objective Evidence

Russell v. Wal-Mart Stores, Inc., No. 5376 (January 20, 2016)

January 20, 2016 – In reversing an Order of the Appellate Panel of the South Carolina Workers’ Compensation Commission (the Commission) finding the claimant failed to carry her burden of proof to establish a change of condition for the worse, the Court of Appeals held the Commission erred as a matter of law by imposing a requirement to S.C. Code § 42-17-90(A) mandating a claimant prove a change of condition by objective evidence.  Recognizing the Commission’s Order did not expressly and unequivocally state it was relying solely on objective evidence, the Court noted that a closer look at the hearing transcript and accompanying Order clearly indicated the Commission relied exclusively on the fact that comparative MRI findings failed to objectively demonstrate the claimant in Russell suffered a change of condition for the worse.  It should be noted, however, that in so holding the Court emphasized that two different physicians testified to a reasonable degree of medical certainty that the claimant suffered a change of condition for the worse, despite the fact that both physicians agreed no obvious objective changes had occurred.  Ultimately, based on this ruling, the case was remanded back to the Commission without consideration of the other issues raised on appeal.

The obvious question that will arise in the aftermath of Russell is whether claimants can now prove a change of condition based solely on subjective evidence.  In short, the answer is yes, but only if the subjective evidence is supported by uncontroverted medical evidence.  In other words, the impetus will be on the defense to present competing medical evidence.  Importantly, the decision in Russell should not have a significant impact on litigation involving change of condition claims in South Carolina moving forward, as the standard of proof required under Section 42-17-90(A) has not changed.  This standard requires a claimant alleging a change of condition to show “by a preponderance of the evidence that there has been a change of condition caused by the original injury … .”  Id

What Russell makes clear is that if a doctor finds the claimant’s subjective complaints are sufficient to render an opinion to a reasonable degree of medical certainty that a change of condition has occurred, this will be sufficient to establish a change of condition for the worse, unless the defendants are able to present contradictory medical evidence stated to a reasonable degree of medical certainty that a change of condition has not occurred.  If multiple contradictory medical opinions are presented, it is within the Commission’s discretion to decide which evidence should be given greater weight.  In sum, the Russell opinion and other recent appellate opinions clearly establishes that merely relying on a lack of objective evidence to combat opinions rendered by medical experts will not be sufficient; defendants will need their own competing opinions to be successful.

Proposed Rule Change for Electronic Filing with the North Carolina Industrial Commission

September 24, 2015 – The Industrial Commission has proposed a revision to Rule 04 NCAC 10A .0108 for electronic filings with the Commission.  Under the proposed rule change, all documents filed with the Industrial Commission will be submitted electronically.  Certain documents like clinchers, briefs, Form 24 Applications, Form 26A, Form 33, and Form 33R will be electronically transmitted to the Commission via the Commission’s Electronic Document Filing Portal (“EDFP”).  In the event EDFP is inoperable, these documents should be sent to the Commission via electronic mail to edfp@ic.nc.gov.

Additionally, under the proposed change, Industrial Commission forms, including but not limited to the Form 18, Form 28B, Form 60, Form 61, and Form 63, should be electronically filed with the Commission’s claims Administration Section at forms@ic.nc.gov.  The proposed rule changes regarding electronic filings do not apply to claimants and employers without legal representation.  Claimants and employers without legal representation will be able to file documents via EDFP, electronic mail, facsimile, US Mail, private courier service, or hand delivery.

If these rule changes are approved, they will likely take effect in early 2016.  For a complete review of the proposed rule changes and the specific documents to be filed electronically with the Industrial Commission, please see the enclosed Industrial Commission Notice regarding the proposed rule changes by CLICKING HERE.

NC Case Law Update:  Injuries Occurring at Mandatory Company Sponsored Events

Holliday v. Tropical Nut & Fruit Co., No. COA14-1030 (August 18, 2015).

August 25, 2015 – The Court of Appeals affirmed the Industrial Commission’s holding that the plaintiff’s injury while playing laser tag at a social event during a mandatory company conference arose out of his employment.  In order for an injured worker to meet his burden of showing that an injury arose out of his employment, the injured worker must show that his employment was a contributing cause or bear a reasonable relationship to the employee’s injuries.  Although participation in the laser tag was not mandatory, the Court of Appeals affirmed the Industrial Commission’s finding that the plaintiff’s injury arose out of his employment as attendance at all of the events, including the social events even if participation was not required, was mandatory.

Additionally, the Court of Appeals affirmed the Industrial Commission’s finding that the social activities were calculated to further the employer’s business.  Ultimately, the Court found that the plaintiff’s injury during the social activity was compensable as the employer specifically required its employees to attend the event, the employer encouraged participation in the laser tag activity, and the employer derived a business benefit from the conference as a whole, including team building and network opportunities generated during the laser tag.

NC Case Law Update:  Setting Aside a Form 60 based on Misrepresentation and Newly Discovered Evidence

Hardison v. Goodyear Tire and Rubber Company, No. COA14-1391 (August 4, 2015).

August 14, 2015 – In an unpublished opinion – Hardison v. Goodyear Tire and Rubber Company – the Court of Appeals affirmed the Industrial Commission’s decision that a Form 60 can be set aside by on the basis of new discovered evidence and the injured workers’ misrepresentations.  Although acceptance of a workers’ compensation claim cannot ordinarily be withdrawn by the employer or altered by the Industrial Commission, the Industrial Commission has the discretion to set aside a Form 60 when the interests of achieving a just and proper determination require it.  The Court of Appeals has allowed the setting aside of an award under a Form 60 due to fraud, misrepresentation, and newly discovered evidence.  To have a Form 60 set aside, the defendant must show that when the Form 60 was entered evidence material to the case existed that Defendant did not learn about, through due diligence, until later. 

In Hardison, Defendants accepted Plaintiff’s hernia claim via a Form 60 after Plaintiff denied that he had ever had a previous hernia or similar condition.  At the time the Form 60 was filed, Defendants did not possess any medical records showing Plaintiff had a pre-existing hernia.  After Defendants accepted the claim, Defendants obtained new medical evidence of a pre-existing hernia.  As a result, Defendants moved to set aside the earlier acceptance of the claim.  The Court of Appeals affirmed the Industrial Commission’s setting aside of the Form 60 based on Plaintiff’s misrepresentation and Defendants’ newly discovered evidence.

New North Carolina Industrial Commission Deputy Commissioners Appointed

August 5, 2015 – North Carolina Industrial Commission Chairman Andrew T. Heath has announced the appointment of seven deputy commissioners. Chairman Heath has appointed Leigha Blackwell Sink and Jesse “Jay” Tillman and re-appointed current Deputy Commissioners Philip A. Baddour, III, J. Brad Donovan, James C. Gillen, Myra L. Griffin, and Adrian A. Phillips.  All appointments are for six-year terms.  Deputy commissioners function as the Industrial Commission’s trial-level judges and hold hearings in contested workers’ compensation cases, state tort claims, and other matters.

“Deputy commissioners play a significant role in protecting the rights of North Carolina’s workers and businesses,” said Chairman Heath.  “I am very pleased to appoint this experienced and skilled group to hear and adjudicate the Commission’s diverse caseload.”  Click Here for profiles of the Deputy Commissioners.

NC Case Law Update:  Retroactive Termination of Benefits

Dominguez v. Francisco Dominguez Masonry, No. COA14-1307.

July 21, 2015 – The Court of Appeals confirmed the Workers’ Compensation Act allows for retroactive termination of TTD benefits to allow defendants to obtain a credit for payment of TTD benefits after successfully showing an injured worker is not entitled to ongoing TTD benefits. 

In Dominguez, the defendants sought termination of the plaintiff’s TTD benefits after he had returned to work.  The Commission approved the defendants’ request to terminate the plaintiff’s TTD benefits and awarded the defendants a credit for TTD benefits paid after the Form 24 was filed.  The Court of Appeals affirmed the Commission’s decision.  The Court of Appeals cited N.C. Gen. Stat. § 97–18.1(b), stating that an employer may terminate payment of compensation for TTD benefits paid when the employee has returned to work.  The Court of Appeals also cited N.C. Gen. Stat. § 97–42 to show that payments made to an injured employee that were not due and payable when made may be deducted from the amount to be paid as compensation subject to the approval of the Industrial Commission.  Accordingly, the Court of Appeals affirmed that the defendants were allowed to terminate the injured workers benefits retroactively as of the date the Commission found Plaintiff was no longer disabled.

Changes to North Carolina Industrial Commission Medical Fee Schedule Effective as of July 1, 2015

July 17, 2015 – On July 1, 2015, the revised professional fee schedule rule will go into effect. The revised rule will apply to dates of service on or after July 1, 2015. The final language of the rule, with technical corrections incorporated, is as follows:

Fees for Professional Services

The Professional Fee Schedule Table, DME Fee Schedule Table, and Clinical Laboratory Fee Schedule Table referenced in Rule 04 NCAC 10J .0102 have been prepared as one downloadable Excel file which is available at this link.

Based on inquiries received from various stakeholders in the health care and insurance communities regarding this rule change, the Industrial Commission has developed Frequently Asked Questions (FAQs) with responses that can be viewed at this link. As more questions are received, additional FAQs will be included. It is recommended that interested stakeholders bookmark the FAQs link and check periodically for any updates.

No Fee for Filing the Form 21, 26, or 26A, Effective July 1, 2015 in North Carolina

July 1, 2015 – Effective July 1, 2015, the North Carolina Industrial Commission will no longer require a fee for the filing and processing of the Form 21, 26, or 26A.

If you are submitting the Form 21, 26, or 26A via EDFP, you must select the “Pay Later” option. Effective July 1, 2015, when a Form 21, 26, or 26A is submitted via EDFP and the “Pay Later” option is chosen, Claims Administration will manually override the invoice within one day of receiving the Form 21, 26, or 26A. Accordingly, no “payment” will be due and the Form 21, 26, or 26A will be ready for processing. The Commission is in the process of reprogramming EDFP to eliminate the need to select “Pay Later” and to override the invoice.

Please note that all Form 21, 26, or 26A’s submitted prior to July 1, 2015 will still require the $300.00 processing fee.

NC Case Law Update:  Disability – No Futility When Job is Identified

Richard O’Neal v. Inline Fluid Power Inc. & Automotive Parts Co. Inc. & Auto-Owners Insurance Co.

May 19, 2015 – In an unpublished opinion, the Court of Appeals affirmed the Industrial Commission’s denial of Plaintiff’s request for indemnity benefits after permanent restrictions were assigned by Plaintiff’s authorized treating physician during a deposition.

Although Plaintiff was 73 years old when permanent restrictions were assigned, the Court of Appeals affirmed the Industrial Commission’s finding that it was not futile for Plaintiff to seek other employment after permanent restrictions were assigned.  The Commission gave greater weight to Defendants’ vocational rehabilitation expert who located several suitable jobs within Plaintiff’s permanent restrictions within the local community.  Although Defendants’ vocational rehabilitation expert could not guarantee Plaintiff would be hired, she affirmed that Plaintiff was capable of pursuing the job opportunities identified in the Labor Market Survey and that the opportunities were within Plaintiff’s permanent restrictions.  The Commission also found that Plaintiff was not medically incapable of work in any employment after Plaintiff’s authorized treating physician assigned permanent work restrictions.  Further, the Industrial Commission found Plaintiff could not meet his ongoing burden of proving disability as he produced no evidence showing he made any effort to obtain employment.  Accordingly, the Industrial Commission held Plaintiff was not entitled to indemnity benefits after permanent work restrictions were assigned by his authorized treating physician.

The Court of Appeals also held that Defendants are allowed to file a Form 61 to deny a claim more than 90 days after filing a Form 63 “Medical Benefits Only”.

COA14-1144. Unpublished Decision filed on May 19, 2015

Thomas Perlungher Appointed Deputy Commissioner in North Carolina

April 24, 2015 – Chairman Andrew T. Heath announced today that he has appointed Thomas Perlungher to serve as a Deputy Commissioner. Perlungher will serve out the remainder of Deputy Commissioner Theresa Stephenson’s term. Stephenson left the Industrial Commission earlier this month to accept a position with the North Carolina Department of Public Safety.

Thomas Perlungher has been serving as Law Clerk at the Industrial Commission since 2010, first for Commissioner Danny Lee McDonald and most recently for Chairman Heath. Before joining the Industrial Commission, Perlungher was a Hearing Officer at the Division of Employment Security and from 2004 to 2008, Perlungher served as an Assistant District Attorney in North Carolina’s 8th District where he prosecuted cases in Wayne, Lenoir, and Greene counties. Prior to his work as an ADA in North Carolina, Perlungher practiced Real Estate law in Massachusetts from 2002 to 2004. Perlungher is a Phi Beta Kappa graduate of the University of Vermont and earned his J.D. from Wake Forest University in 2002.

Governor McCrory Announces Nomination to the North Carolina Industrial Commission

April 7, 2015 – Governor Pat McCrory has nominated Christopher Loutit for appointment to the North Carolina Industrial Commission, pending approval by the North Carolina General Assembly.
  • Christopher Loutit (Wake County) – Loutit is the chief deputy commissioner for the North Carolina Industrial Commission. Prior to this, Loutit was the administrator of the Industrial Commission’s operations, overseeing 160 employees. Before working for the Industrial Commission, he was partner at Johnson, Lambeth & Brown, Attorneys at Law in Wilmington. He also worked at The Bank Street Group, LLC in New York as a corporate finance analyst. Loutit received his J.D. at American University in Washington, D.C.

Two Deputy Commissioners in North Carolina Leaving the Industrial Commission

April 2, 2015 – Two Deputy Commissioners are leaving the Industrial Commission. Deputy Commissioner Theresa B. Stephenson is leaving the Industrial Commission on April 9, 2015. Deputy Commissioner George R. Hall, III is leaving the Industrial Commission at the end of July 2015.

New Deputy Commissioner Appointed in North Carolina

March 6, 2015 – Chairman Andrew T. Heath announced today that he has appointed David M. Hullender to serve as a deputy commissioner. Hullender is replacing Stephen T. Gheen. Gheen left the Industrial Commission at the end of February to accept a position with the Durham County District Attorney’s Office. Hullender will begin working with the Industrial Commission on April 20, 2015, giving him time to wind down his practice.

Hullender is currently in private practice with the firm of David M. Hullender, P.A. in Kings Mountain, North Carolina. Prior to starting his own firm, Hullender was an associate with George B. Thomasson, P.A. from 1990 until 2001. Hullender serves on the North Carolina Indigent Defense Services Commission and is the chairman of the Kings Mountain ABC Board. He is a graduate of the University of North Carolina, North Carolina Central University Law School, magna cum laude, and earned an LL.M in Taxation from the University of Florida School of Law.

Campbell Appointed

March 5, 2015 - The SC Senate confirmed Commissioner R. Michael Campbell’s six year appointment to the South Carolina Workers’ Compensation Commission.  Commissioner Campbell is currently filling the vacant seat created by the resignation of Andrea C. Roche this past July.

Nicholson v. South Carolina Department of Social Services

February 15, 2015 - With the South Carolina Supreme Court’s recent decisions, in the cases of Nicholson v. South Carolina Department of Social Services, Opinion No. 27478 (S.C. Sup Ct.) (January 14, 2015) and Barnes v. Charter 1 Realty, Opinion No. 27479 (S.C. Sup. Ct.) (January 14, 2015), defendants will need to adjust their litigation strategies going forward in workers’ compensation cases involving unexplained or idiopathic falls.  READ MORE

Honesty is the Best Policy

December 4, 2014 – “Honesty is the best policy” is a saying used by teachers and parents on a daily basis. Until recently, North Carolina workers’ compensation law had no consequences for an employee making a false representation on an employment contract when the employee subsequently injures himself. However, in the Workers’ Compensation Reform Act, North Carolina enacted an affirmative defense when a claimant makes a false representation regarding his physical condition when entering into employment.  READ MORE

NC Case Update: The Importance of Correctly Calculating Average Weekly Wage

August 27, 2014 – A recent decision from the North Carolina Court of Appeals has illustrated the importance of correctly calculating average weekly wages in workers’ compensation cases. In Miller v. Carolinas Medical Center-Northeast, the claimant sustained a compensable back injury. Following appropriate medical treatment, the claimant reached maximum medical improvement (MMI) and received a five-percent permanent partial disability (PPD) rating. The parties subsequently signed a Form 21 agreement in which the adjuster calculated…READ MORE

How the Lowering of the Discount Rate Changes Awards and Settlements

June 27, 2014 – As many of you are now aware, the South Carolina Workers’ Compensation Commission approved the lowering of the discount rate from 5% to 2% effective June 27, 2014, as a result of the amendments to Rule 67-1605 by the General Assembly.  As of today, June 27, 2014, this is how the change affects settlements and awards:

  • For the remainder of 2014, the discount rate for weeks 1 through 100 will be 2% and weeks 101 through 500 shall be 2%;
  • Accordingly, all settlements and awards on or after June 27, 2014, should be based upon the lowered discount rate of 2%;
  • Starting in 2015, the discount rate for weeks 101 through 500 could change annually based upon the yield-to-maturity rate published at the beginning of the year. However, weeks 1 through 100 will continue to be calculated at the 2% commuted value discount rate.

A Reminder to Employers: Document, Document, Document

May 2, 2014 – One of the most employer friendly cases in North Carolina workers’ compensation case law is Seagraves v. Austin Co. of Greensboro, 123 NC App. 228, 472 S.E.2d 397 (1996). The court in Seagraves held that if an employee is fired for conduct that would normally result in termination and is in no way connected to the injury, Plaintiff is refusing to perform work and is, therefore, barred from receiving further disability benefits.  However, even where termination was legitimate, Defendants may still be required to pay TTD benefits if Plaintiff shows effort to find other employment and is unable to do so because of work restrictions. McRae v. Toastmaster, 358 N.C. 488, 597 S.E.2d 695 (2004).

Importantly, to use Seagraves effectively, employers must keep accurate records of the disciplinary history of their employees. Our firm recently handled a case where Plaintiff was terminated shortly after his alleged injury. Plaintiff’s Counsel argued Plaintiff was terminated in retaliation for filing a workers’ compensation claim. Yet, the employer was able to provide documentation of Plaintiff’s history of disciplinary issues, including: not wearing proper work attire, tardiness, parking in the wrong place, stealing money from the cash register, talking on his cell phone during work, and bringing his girlfriend drinks from the hotel bar. Documentation of these written and verbal warnings made our argument that Plantiff was terminated for cause much stronger.

In Thomas v. CenturyLink, the employer’s good record keeping was central in the NCIC Full Commission’s finding that Plaintiff was terminated for cause. The employer fired Plaintiff approximately one year after the date of accident for failure to adhere to his assigned schedule. Before he was fired, Plaintiff never informed the employer that his schedule adherence problems were related to his alleged head injury. The Full Commission found Plaintiff was terminated for reasons any non-injured employee would have been terminated. Thomas v. CenturyLink, IC No. X58430 (2013).

Practice Tips: The following are a few tips employers should keep in mind when organizing their personnel files:

  1. Keep good records of disciplinary history;
  2. “Injuries” often happen once Plaintiff anticipates termination is looming;
  3. It is very challenging to prove that one’s termination was not related to a workers’ compensation injury if Plaintiff is terminated a few days after the injury, unless there is written documentation showing a history of disciplinary problems;
  4. Contact Defense Counsel before terminating Plaintiff to ensure settlement or a crucial next step in the case is not pending.

Carter v. Verizon Wireless & Future Medical Care Awards

March 3, 2014 – At first glance, the recent case of Carter v. Verizon Wireless, Opinion No. 5191 (S.C. Ct. App.) (January 29, 2014), appears to provide the defendants with favorable case law when defending against change of condition claims; however, this case may prove to be far more unfavorable as it pertains to future medical care awards.  Carter was involved in a compensable work accident injuring her left knee in December of 2006. She had left knee surgery and eventually reached maximum medical improvement in March of 2008. The authorized treating physician assigned the claimant an 18% impairment rating to the left lower extremity. The matter proceeded to a hearing and the claimant was awarded compensation equivalent to 25% permanent partial disability to the left lower extremity and “causally-related future medical treatment that may tend to lessen her period of disability, as recommended by the authorized treating physician, including Darvocet or comparable medication.”

Following an increase in her pain, the claimant returned to the authorized treating physician in 2010 at which point the impairment rating to her left lower extremity was increased to 42%.  A hearing was requested for additional medical treatment based on a change of condition. During his deposition prior to the hearing, the authorized treating physician testified the claimant was eligible for a knee replacement in 2008 at the time of her original release.  He added the claimant’s knee had “materially worsened” since 2008 due to “natural degeneration,” but conceded the claimant’s participation in an exercise regimen following her release could have accelerated her deterioration. The parties proceeded to the change of condition hearing.

By way of an April 2011 Order, the single commissioner opined the claimant had not sustained a compensable change of condition although she remained “entitled to causally-related future medical treatment that may tend to lessen her period of disability, as recommended by the authorized treating physician, specifically restricted to Darvocet or a comparable medication.” The Appellate Panel of the Workers’ Compensation Commission affirmed the single commissioner and the matter was appealed to the Circuit Court.  The Circuit Court overturned the Full Commission, awarding the claimant a change of condition and future medical care, including a total knee replacement.  The matter was appealed to the Court of Appeals.

Relying on sound case law, the Court of Appeals overruled the Circuit Court finding the claimant’s condition was the result of the natural progression of her pre-existing degenerative condition and not her original injury; therefore, the claimant had not sustained a compensable change of condition.  See Brown v. R.L. Jordan Oil Co., 291 S.C. 272, 275, 353 S.E.2d 280, 282 (1987) (“[A] condition due solely to the natural progression of a preexisting disease is not compensable.”). However, relying on the testimony of the authorized physician, affirming the decision of the Circuit Court regarding future medical treatment, the Court awarded the claimant future medical care tending to lessen her period of disability which would include a total knee replacement.

Until the authorized treating physician’s deposition in 2010, there was no indication the claimant would require a total knee replacement when the matter was first decided in 2008.  Clearly, the parties had not contemplated the claimant would need such a surgery in 2008 because no such evidence existed at that time. However, the authorized treating physician’s testimony during the discovery period for the change of condition claim and the courts’ acceptance of that testimony resulted in what amounted to a retroactive award of open-ended future medical treatment, including a very expensive surgery, that essentially usurped the victory on the change of condition claim and opened the defendants to lifetime causally related medical exposure so long as the authorized treating physician opined such treatment tended to lessen the period of disability. 

Most would agree that the open-ended awards of future medical care are driving the costs of workers’ compensation claims to values never previously imaginable.  This case reminds us that we must remain diligent in our efforts to avoid and/or specifically limit future medical care in the early stages of the claim.  Failure to do so could be very costly. 

New Guidelines for Submitting SCWCC Forms via E-Mail

March 3, 2014 – On January 24, 2014, the South Carolina Workers’ Compensation Commission (SCWCC) published guidelines for submitting Forms 15, 17, 18, 19, and 20 via e-mail. To view the detailed guidelines, please click here. When filing SCWCC forms via e-mail, please remember the following:

  1. Remove the Social Security number of the Claimant;
  2. Include the WCC# and Form# in the subject line of the e-mail;
  3. Include the Carrier Code in the body of the e-mail message;
  4. Send the Form as an attachment, preferably in .pdf file format;
  5. Label the attachment with the WCC#, Form#, and date submitted; and
  6. Send the Form to the appropriate e-mail address based on the type of Form submitted.

Should you have any questions regarding SCWCC forms, fines, or new e-mail filing procedures, please feel free to contact one of GWB’s Workers’ Compensation Team members.

Before you file a Form 60 in North Carolina…

November 8, 2013Spivey v. Wright’s Roofing and AMS Staff Leasing was recently heard before the North Carolina Court of Appeals and left us with an understanding of how challenging it can be to set-aside a Form 60.

 As explained in Spivey, Wright’s Roofing contracted with AMS Staff Leasing to provide administrative services for their company. As a part of the contract, employees would be designated as employed by AMS Staff Leasing. Plaintiff was initially employed by AMS Staff Leasing and contracted to work for Wright’s Roofing. Plaintiff stopped working for Wright’s Roofing and his termination documents were submitted to AMS. After approximately one year, Plaintiff returned to work with Wright’s Roofing, but was never designated as an employee of AMS Staff Leasing. He was paid by Wright’s Roofing and never completed any AMS Staff Leasing forms. Subsequently, the Plaintiff sustained an injury and filed a Form 18. AMS Staff Leasing responded with a Form 60 and began paying weekly benefits to Plaintiff. AMS Staff Leasing subsequently discovered Plaintiff was no longer an employee of theirs and filed a Form 63 and Form 61 in an attempt to deny liability and terminate TTD benefits.

The Deputy Commissioner entered an order holding the new general contractor liable. However, the Full Commission found AMS Staff Leasing had no basis to withdraw the Form 60 and ordered them to continue paying TTD benefits and providing medical care. The Court of Appeals upheld the Full Commission’s decision and found that AMS Staff Leasing was responsible for paying benefits to Plaintiff even though Plaintiff was no longer an employee. AMS Staff Leasing was found responsible for the claim because they filed a Form 60 before properly investigating the matter.

 Before self-insured employers, insurance carriers or third-party administrators file a Form 60, they need to confirm that an employment relationship exists with the Plaintiff. If they are unsure about whether to accept a claim, they should consider filing a Form 63 to pay benefits without prejudice pending the investigation. When one files a Form 63 to pay a claim without prejudice it is important to remember the 90 day deadline to either accept or deny the claim.  If the claim is not formally denied within 90 days of the employer’s notice of the injury, the claim will be deemed accepted by virtue of the filing of the Form 63 for payment without prejudice.  The 90 day deadline does not apply if a Form 63 is filed for a medicals only claim.

In short, it is very difficult for a Form 60 to be set aside; so be cautious and specific in your filing of a Form 60. If you have any questions or concerns about whether a claim should be accepted or not, feel free to call any of the Workers’ Compensation attorneys at GWB and we will be glad to assist you.

Impact of Mediation Regulations

November 8, 2013 – The recently enacted regulation mandating mediation in certain cases is moving forward at full steam. Specifically,  the SCWCC reports that, since July 1, 2013:

  • The WCC has advised parties in 396 cases that their pleadings automatically trigger mandatory mediation;
  • The parties have voluntarily consented to mediation in 30 cases;
  • The WCC has ordered mediation in 14 cases in which mediation was not mandated or in which the parties did not consent to it; and
  • For those cases in which mediation has been completed, mediation has resolved 81 cases.

Also, perhaps due to the growing use of mediation, Commissioners conducted almost 350 fewer Single Commissioner Hearings for the year ending June 30, 2012, than they conducted in the year ending June 30, 2011!

Change to Informal Conference Process

October 14, 2013 – The SCWCC changed the process for assigning certain Informal Conference (IC) Form 16 and 16A matters.  More specifically:

  • When medical expenditures exceed $50,000.00, the WCC will now set the IC before the jurisdictional Commissioner, as opposed to a Deputy Commissioner or claims mediator;
  • An attorney must appear on behalf of the defendants at the IC and;  
  • If the matter is not resolved at the IC, the WCC will set the claim for a hearing before the next jurisdictional Commissioner.

Thus, when requesting an IC, the defendants should closely review the total amount of medical expenditures incurred to date. (These do not include future anticipated medical expenses.)  If the expenditures exceed $50,000.00, the defendants should request an IC through the normal process and promptly assign the claim to defense counsel.  Defense counsel will then attend the IC, which will be conducted by one of the seven Commissioners. 

New Clincher Conference Process

October 14, 2013 – At the 2013 Educational Conference, the Commissioners clarified their new policy on clincher settlements with pro se claimants. 

A.    Prior Process:

Historically, when a defendant reached a proposed settlement with a pro se claimant, the defense attorney presented the proposed settlement to a Commissioner at a Clincher Settlement Conference.  If, for some reason, the Commissioner believed the proposed settlement terms were inadequate (e.g., the settlement amount was too low or did not adequately protect the claimants entitlement to future medical care), the Commissioner almost always requested Defense counsel to immediately call and discuss/obtain additional authority from the insurance carrier or third-party administrator.  If additional authority was granted by their client, Defense counsel could then return to the hearing room and present the additional settlement authority and proposal for consideration and approval by the Commissioner. 

B.    New Process:

At the recent SCWCEA Educational Conference, Commissioners advised that they will no longer “negotiate” at Clincher Conferences. Specifically, if the commission determines that the initial proposed settlement terms are inadequate, the Commissioner will not give Defense counsel the opportunity to revisit settlement authority with their client but, rather, will automatically set the claim for a hearing (at which time evidence is submitted, testimony taken, etc.) before another Commissioner.

Commissioners indicated that the purpose of the change was due to concern that proposed settlements were becoming increasingly insufficient, triggering excessive involvement by the Commissioners in the negotiation of the settlement of the claim.

Thus, when negotiating settlements with pro se claimants, insurance carriers and third-party administrators should remember that settlement offers, whether for disability benefit or future medical treatment, that a Commissioner deems insufficient or unfair will be rejected without the opportunity for re-negotiation and an evidentiary hearing will automatically be set.  Moreover, the claim will be resolved through an Order as opposed to a Clincher, leaving the “change of condition” period open and available to the claimant.

Notably, however, the Commissioner ultimately conducting the evidentiary hearing after a “failed” Clincher Conference will not be privy to the original proposed settlement terms. Consequently, the claimant may ultimately be awarded an amount less than the defendants offered through the proposed Clincher.

WCC Fines for 2013

October 14, 2013 – The WCC continues to issue a large number (and amount) of fines for a range of alleged omissions by employers and carriers.  As the following breakdown of the fines shows, although the major bulk of the fines involve coverage issues (for an employer’s failure or delay in securing workers’ compensation coverage), the WCC continues to focus a significant amount of fines on carriers’ failure to timely file Forms 12A (First Report of Injury), 15(I) (starting temporary compensation) and 18 (6 month periodic reports).  Thus, to avoid fines, special attention to calendaring and timely filing these Forms is strongly recommended.

Reason Code

Reason Description

Total Assessed

F14

Medical Rating per R. 67-804C(2

$143.63

F16

Form 16/Form 16A

$400.00

F17

Form 17

$15,000.00

F18

Form 18

$515,600.00

F19

Form 19

$2,700.00

F50

Form 51 per section 42-19-30

$200.00

F51

Form 15 Section I

$109,000.00

F52

Form 15 Section II

$36,200.00

F5S

Form 15S for TPD Payments

$13,600.00

FA

Form 12A

$204,200.00

FDL

Denial Letter

$40,400.00

FH

Failure to Appear at Hearing

$500.00

FIC

Failure to Appear at IC

$16,078.76

FM

Form 12-M

$15,000.00

FMP

Form 12-M Late Penalty

$4,050.00

FRC

Failure to Respond to Request

$1,600.00

FRQ

Failure to Respond to Request

$35,000.00

FT

Other Fine

$600.00

HC

Hearing Costs

$6,353.19

JF

Judicial Fine

$11,936.63

LF

Coverage Late Fines

$77,800.00

SLF

SI-Late Financial Fine

$200.00

TE

SI Tax Interest

$13,585.93

TP

SI Tax Penalty

$42,870.10

XCLM

Capitulation Fine

$639,185.30

XESC

Capitulation Fine

$2,728,130.77

 

TOTAL ASSESSED

$4,530,334.31

 

South Carolina Mediation Regulation Update

July 30, 2013 – The South Carolina Workers’ Compensation mediation regulations, S.C. Reg 67-1801 through 67-1809, became effective on June 28, 2013, allowing the Commission to order mediation and setting forth circumstances whereby mediation is mandatory. The following is a brief summary of the key provisions:

  • Mediation shall be mandatory for claims arising under South Carolina Code section 42-9-10; where permanent and total disability has been alleged pursuant to section 42-9-10 (21); in occupational disease claims; in third-party lien reduction claims; in contested death claims; in mental/mental claims; in claims of concurrent jurisdiction; and in claims where multiple employees allege injuries arising out of employment with the same employer.
  • Mediation can be requested by way of filing a Form 21, Form 22, Form 50, and Form 51 even in claims where mediation is not mandatory.
  • The mediator must be certified by the South Carolina Bar Association and be duly qualified.
  • The mediator must be selected within 10 days and the mediation must be completed within 60 days of filing the Form 51 or Form 22.
  • Attendance is not optional.  The parties must send a representative to attend mediation who has the authority to make decisions resolving the disputed issues.  If attendance is via telephone, the opposing party must be notified prior to the mediation. 
  • A party who fails to act in good faith during the mediation may be subject to fines.
  • All communications and statements made within the context of mediation are confidential and not subject to disclosure.
  • The cost of mediation shall be shared equally between the parties unless otherwise agreed to or ordered by the Commission. 

The following Forms have been revised or created in accordance with the Mediation Regulation:

  • Forms 21, 30, 50, 51, 52, 53, 54, 55 and 58 have been revised
  • NEW Form 22 — Claimant’s Answer to Defendant’s Request for Hearing, has been created and is effective July 2013
  • NEW Form 70, the Mediator Report, has been created and is effective July 2013
    • Form 70 is to be returned to the Commission and is solely for tracking purposes

For additional information on mediation and its impact on the workers’ compensation laws in South Carolina, contact one of our South Carolina attorneys. If you are in need of a certified mediator, please contact our very own H. Mills Gallivan or Jared M. Pretulak, both of whom are certified and included on the SCWCC’s approved mediator list.

Supreme Courts Rules Claimant is Not Entitled to TTD Benefits When Terminated For-Cause

July 22, 2013CASE BRIEF - Pollack v. Southern Wine & Spirits of America

  • The claimant was assigned to light duty by a physician due to a work related injury.
  • Approximately two months later the claimant was involved in a minor accident with a co-worker while driving a company vehicle.
  • The claimant did not report the accident to the company, a violation of company policy, and was terminated.
  • Following his termination, the claimant filed a Form 50 requesting Temporary Total Disability (TTD) benefits from the date of termination and continuing.
  • The Single Commissioner denied the claimant’s request for TTD compensation.
  • The Full Commission affirmed the Single Commissioner’s denial of TTD compensation.
  • Last week, the South Carolina Supreme Court ruled that a claimant is not entitled to temporary benefits when they have been terminated for-cause.  

What this means going forward:

The Court’s opinion is great news for our clients, as it allows employers to deny TTD benefits when an accommodated claimant is terminated for-cause.  However, it should be noted, the Court urged that an employer’s denial of TTD benefits must be scrutinized carefully, to ensure the employer’s possible motivation was not to “look for” a reason to fire an injured worker.  As such, the Commission will still look at all denials of TTD benefits on a case-by-case basis, which means maintaining evidence of the facts and circumstances surrounding a claimant’s for-cause termination will be imperative to prove the termination was in fact based on the claimant’s conduct, rather than motivated by a desire to fire an employee who has been injured on the job.        

COMPLETE CASE SUMMARY

In Pollack v. Southern Wine & Spirits of America, Op. No. 27285 (S.C. July 17, 2013), the claimant was involved in an admitted work-related injury in March 2010.  He was treated by a physician and released to return to work with restrictions, including no lifting over 15 pounds.  The employer accommodated the restrictions, assigning him light duty work in the same position he held prior to the injury.

The claimant continued to work his light duty assignment.  However, approximately two months later the claimant was involved in a minor accident with a co-worker while driving a company vehicle.  No injuries were sustained; however, the company policy clearly stated that all accidents involving company vehicles must be reported whether damage or injury was caused.  Further, the policy stated that failure to comply would result in immediate termination.  The claimant failed to report the accident and was subsequently terminated for violation of company policy.

Following his termination, the claimant filed a Form 50 requesting TTD benefits from the date of termination and continuing.  The employer opposed the request, asserting he was not entitled to TTD benefits because he was terminated for-cause and, therefore, ineligible.  At a hearing before the Single Commissioner, the claimant admitted he was aware of the policy, but decided against reporting the accident because it was not serious.  The Single Commissioner denied the claimant’s request for TTD compensation, concluding he was terminated for-cause after violating company policy and therefore was not entitled to TTD benefits.  The Full Commission affirmed the Single Commissioner’s denial of TTD compensation, holding the claimant was not out of work due to his injury, which would warrant his entitlement to TTD benefits, but rather for violating company policies that led to his termination for-cause.  The Commission went on to reason that to hold otherwise would lead to an absurd result in which an employer could never terminate a light duty, accommodated employee without triggering TTD benefits.

The Supreme Court affirmed the Appellate Panel’s decision, finding that to agree with the claimant’s position would result in the court “constru[ing] the South Carolina workers’ compensation laws to mandate the payment of TTD benefits, regardless of the factual circumstances of the particular case, whenever an employee is discharged from an accommodated, light duty position.”  The Court went on to “categorically reject” such an interpretation, stating “the fallacy in [that] position is self-evident.”  Accordingly, the Court held that because the claimant’s incapacity to earn wages in this case was not “due to or because of” his work-related injury, but rather the result of his termination for-cause, he was not entitled to TTD benefits.

Case Law Update: Substantial Evidence Requirement – Refuting Claimant’s Medical Evidence

May 7, 2013 – The South Carolina Supreme Court recently clarified the requirements to prove a lifetime benefits claim based upon physical brain damage under SC Code § 42-9-10(C). The holdings in Sparks v. Palmetto Hardwood, Inc., and Crisp v. SouthCo. Inc., resolve some of the uncertainty as to whether someone establishing a physical brain injury and permanent and total disability shall be entitled to lifetime benefits.

Arguably these two cases alter the standard of proof for physical brain damage. In order for a claimant to be entitled to lifetime indemnity benefits, as opposed to being capped at 500 weeks, he or she must present evidence establishing:

(1) physical brain injury
(2) the physical brain injury is permanent
(3) the permanent physical brain injury is severe

Perhaps more importantly, these cases seemingly establish that for the severity requirement to be met, the permanent physical brain injury must be the reason that the claimant is unable to return to gainful employment. This represents a departure from the standard established in Pearson v. JPS Converter & Indus. Corp., which only required permanent and total disability and physical brain damage, not that the physical brain damage resulted in permanent and total disability. While neither Sparks nor Crisp expressly overruled prior case law, Pearson’s viability is certainly in question given these recent cases. Lastly, it is noteworthy that the court in both of the recent cases declined setting any requirement for objective diagnostic testing to prove physical brain damage. However, the court relied heavily upon expert medical testimony, thereby suggesting that the requirement of expert medical evidence on the disputed issues is still applicable.

These recent cases change how brain injuries are defended. Defendants must be increasingly vigilant since it is no longer sufficient for a claimant seeking lifetime indemnity benefits to prove physical brain injury and permanent and total disability. Additionally, these cases establish that a concussion, in and of itself, does not amount to brain damage; something the Claimant’s Bar has previously argued. In order to defend against such claims, the carrier must have an expert comment on whether the injury to the brain is physical, whether the physical brain injury is permanent, and whether the physical brain injury resulted in the claimant being unable to obtain or maintain gainful employment. If any of these questions are answered in the negative, then arguably the claimant has failed to satisfy his or her burden to show physical brain damage as defined under SC Code § 42-9-10(C) and, therefore, the claimant should not be entitled to lifetime indemnity benefits.

In conclusion, under the holdings of these and prior cases, the carrier should have experts provide opinions on the issues and simply relying upon the lack of diagnostic testing will not be sufficient. In cases where there are dueling experts, the Commission will continue to have discretion to weigh the medical opinions.

Case Law Update: Substantial Evidence Requirement – Refuting Claimant’s Medical Evidence

February 14, 2013 – Recently, the South Carolina Court of Appeals interpreted the “substantial evidence” standard as it relates to whether the Commission is required to give conclusive effect to expert/medical opinions. Burnette v. City of Greenville, No. 5059, 2012 WL 6028904 (S.C. Ct. App. Dec. 5, 2012). In Burnette, the claimant’s attorney submitted a medical questionnaire which stated the claimant’s pre-existing back condition had been aggravated as a result of her work accident. Instead of deposing the medical expert or providing contradictory medical expert evidence, the defendants relied on isolated medical records to support their argument that the claimant’s pre-existing condition had not been aggravated. Essentially, there was no evidence in the record challenging the conclusions of the medical experts. The Hearing Commissioner and Appellate Panel denied compensation for the claimant’s alleged back injury.

The South Carolina Court of Appeals reversed the Order of the circuit court affirming the decision of the Appellate Panel, holding that the record provided “little or no support for the findings of the Commission.” In so holding, the court noted that the Commissioner’s finding regarding the significance of medical evidence (an MRI) was “particularly disturbing” because the opinion did not originate from a medical provider, but was simply the Hearing Commissioner’s opinion based upon her interpretation of the medical evidence. The South Carolina Court of Appeals remanded the case to the Commission with specific instructions to reconsider the issues and enter findings of fact concerning compensability of the lumbar spine that are supported by substantial evidence in the record.

Practical Implications of Burnette:

  • Based upon this recent decision, to satisfy the “substantial evidence” standard it would appear Defendants have an affirmative obligation to address evidence submitted by the claimant, especially when such evidence comes from a medical expert.
  • Accordingly, Defendants should either (1) depose the claimant’s medical expert, or (2) obtain an Independent Medical Exam, to ensure substantial evidence exists to support the Defendants’ position. Failure to do so may negatively affect the outcome of the case.  

For more information on how the Burnette decision will impact your workers’ compensation matters in South Carolina, please contact any of our workers’ compensation attorneys. We will be glad to assist with your legal needs.  

Supreme Court Rules on South Carolina Workers’ Compensation Commission Appeals

May 7, 2013 – In Bone v. U.S Food Service, the South Carolina Supreme Court recently resolved some of the “lingering confusion” regarding appeals taken from the Full Commission. The confusion arose as a result of some appellate courts taking immediate appeals from the Commission, whereas other courts would not.

The claimant in Bone filed a workers’ compensation claim, alleging injury to her back. The hearing commissioner found that the claimant failed to meet her burden of proving an injury by accident and the Full Commission upheld the decision of the hearing commissioner. The claimant then appealed under the version of S.C. Code § 42-17-60 in effect at the time, which permitted appeals to the circuit court within thirty days of the decision of the Full Commission.

The circuit court reversed, finding that the claimant sustained a compensable injury, and remanded the case back to the Commission for further proceedings consistent with this finding. The employer and carrier appealed to the South Carolina Court of Appeals, which dismissed the appeal as interlocutory. The South Carolina Supreme Court then took up the issue and provided clarification on the process for appeals from administrative agencies, including the South Carolina Worker’s Compensation Commission, which are governed by the Administrative Procedures Act (APA).

Under the APA, specifically section 1-23-390, only an appeal from a final judgment is permitted. In contrast, for cases not governed by the APA, S.C. Code § 14-3-330 permits appeals from interlocutory orders involving the merits of the case. The South Carolina Supreme Court reiterated that the APA is controlling in the context of workers’ compensation appeals. Parties may not resort to § 14-3-330. The court then discussed what constitutes a final judgment and held “a final judgment disposes of the particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined.”

Applying the aforementioned reasoning, the court found that the order of the circuit court remanding the case back to the Commission for further determination of other issues, did not constitute a final judgment, and as such, was not immediately appealable. In the alternative, had the circuit court upheld the decision of the Full Commission denying compensability, that order would have been a final judgment because it left no other issues to be litigated; and, an immediate appeal would have been proper in that context.

Bone is important because it provides guidance on how to properly bring an appeal in the workers’ compensation context. Under this holding, only where the Full Commission or a higher court decides all issues in relation to compensability, can an appeal be taken to the next appellate court. This can result in frustrating litigation, where the determining court arguably has committed reversible error on one aspect of the claim, but remanded the case for further determination. The parties are left with no recourse but to litigate the claim upon remand and then start the appeals process only after a decision is rendered on the remaining issue(s). While this can be frustrating, the effect of Bone should be taken into consideration when analyzing an overall litigation strategy, which should include the duration of the litigation proceedings.

It should be noted that Bone is only applicable in the context of the APA, which governs appeals from an administrative agency, such as the Commission. Appeals to the Full Commission from the decision of a hearing commissioner remain unchanged and are governed by the South Carolina Workers’ Compensation Act and associated regulations. With that said, the case is scheduled to be reheard in the upcoming months. One question is whether the requirement of a final judgment will only be applicable to decisions of the Full Commission or if it will be enforceable at all levels of appeal including the circuit court and the Court of Appeals.

The attorneys of Gallivan, White & Boyd, P.A. are committed to staying on top of developments in the workers’ compensation system because these changes can affect each of our client’s interests. Please contact any of our attorneys in the event that you need legal assistance.