Diamond Post
Workers' Compensation Newsletter
GWB's Buzz: Recent Court Opinions Affect
South Carolina Workers' Compensation Claims Handling
The South Carolina Supreme Court recently gave both the South Carolina Workers' Compensation Commission and the South Carolina Second Injury Fund two victories transforming Workers' Compensation law. In South Carolina Ambulatory Surgery Center Ass'n v. South Carolina Workers' Compensation Commission, several ambulatory surgery centers and their trade association ("Surgery Centers") challenged the South Carolina Workers' Compensation Commission's ("Commission") approved revised schedule for maximum allowable payments to outpatient medical providers. South Carolina Ambulatory Surgery Center Ass'n v. South Carolina Workers' Compensation Commission, Op. No.26875 (S.C. Sup.Ct. Filed Sept. 7, 2010) (Shearouse Adv.Sh. No. 36 at 13).
Through power given to the Commission by Regulation 67-1304 of the South Carolina Workers' Compensation Act, the Commission determines the maximum allowable payment for hospital outpatient services and ambulatory surgical centers. See 25A S.C. Code Ann. Regs. 67-1304 (Supp. 2009). In 1997, the Commission set the interim discount of these services at 12.1 percent at a business meeting rather than by regulation. South Carolina Ambulatory Surgery Center Ass'n v. South Carolina Workers' Compensation Commission, Op. No.26875 (S.C. Sup.Ct. Filed Sept. 7, 2010) (Shearouse Adv.Sh. No. 36 at 13). Subsequently, at a Full Commission business meeting in 2006, the Commission adopted a schedule capping the maximum allowable payments to be no more than 140 percent of the applicable Medicare payment effective October 1, 2006. Id. at *2. The Surgery Centers challenged the Commission's revised schedule of maximum medical payments under the Administrative Procedures Act ("APA") and alleged their due process rights had been violated. Id. at *2.
The main question before the Court was whether the Commission was required to promulgate a new regulation in order to change the fee payment schedule for ambulatory care centers. However, the Court never reached this question and instead found that the Surgery Centers did not establish a right to a "contested case" hearing under the APA because the Commission's actions did not involve "ratemaking" or "price fixing" as required by S.C. Code Ann. Section 1-23-310(3). Furthermore, the Court held that Surgery Centers failed to establish the requisite property interest needed to invoke the state's constitutional due process protections to challenge the new fee schedule. Id. The Court relied on the specific authorization of power given to the Commission under Regulation 67-1304 to deny the Surgery Centers' due process rights claim.
Finally, the Court lifted a pendente lite order enjoining the Commission from instituting the new fee payment schedule and effective September 7, 2010, the maximum allowable rate for ambulatory surgery centers is 140% of the applicable Medicare payment.
Just a week later, the Court decided Travelers Insurance Co. v. South Carolina Second Injury Fund, Op. No. 26880 (S.C. Sup.Ct. Filed September 13, 2010) (Shearouse Adv.Sh. No. 37 at 36). In this case, several employers and insurance carriers challenged the South Carolina Second Injury Fund's (hereinafter "the Fund") position that the 10-year state of limitations in S.C. Code Section 15-3-600 (2005) applied to actions for Second Injury Fund reimbursement under S.C. Code Ann. Section 42-9-400 (Supp. 2009). Id. The Fund argued that after giving notice of a claim for reimbursement under the statute, the carrier had 10 years to perfect this claim. Id. Conversely, the carriers and employers argued that the governing statute, S.C. Code Ann. Section 42-9-400 (Supp. 2009), did not contain a statute of limitations or a time period to perfect a claim, only that the carrier or employer must put the Fund on notice of a potential claim for reimbursement prior to the payment of 78 weeks of benefits. Id.
The South Carolina Supreme Court held the lack of a statute of limitations in the Workers' Compensation Act (Title 42) applying to claims for reimbursement meant the "catch all" provision of S.C. Code Ann. Section 15-3-600 applies to claims for reimbursement. Id. at 17. The catch all provision provides, "An action for relief not provided for in this chapter must be commenced within ten years after the cause of action shall have accrued." S.C. Code Ann. Section 15-3-600 (2005). The Court stated the statute of limitations commences on the date a carrier provides notice to the Fund of their intention to seek reimbursement. Id.
With the sun setting on the Fund, the Court effectively limited the claims for reimbursement. Practically speaking, after this decision, only cases that gave notice within ten years before the current date are eligible for potential reimbursement. Now it is even more imperative that carriers evaluate those eligible claims sooner rather than later.
The workers' compensation team at Gallivan, White and Boyd is up-to-date on these latest developments and is happy to answer any questions regarding these cases. Please contact one of our attorneys for further assistance. |
