July 13, 2007
On June 25, 2007, Governor Sanford signed into law sweeping changes to the South Carolina Workers' Compensation Act. A few of the significant changes, favorable to employers and insurance carriers, are summarized below.
- Previously, the law provided that if a claimant suffered 50% or greater loss of use of her back, she was deemed to be permanently and totally disabled. This new legislation allows for a rebuttable presumption that 50% loss of use of the back constitutes total and permanent disability. In other words, the Commission must now consider evidence proffered by the employer that tends to show the claimant is not permanently and totally disabled, despite suffering a loss of 50% or greater to her back.
- Since the Supreme Court's decision in Brown v. Bi-Lo, employers, insurance carriers, and their attorneys could not communicate with physicians treating a claimant without the claimant's permission, even though the defendants were often paying for such treatment. Accordingly, since 2003, defense counsel has essentially only been able to obtain discovery from healthcare providers by subpoena or through depositions. The amended law now allows defense counsel to contact treating physicians without obtaining permission from opposing counsel. Instead, it requires only that the claimant be notified, prior to the communication, of its nature and the claimant's right to be present, thereby increasing counsel's ability to obtain medical discovery and potentially reducing defense costs in terms of time and money.
- Under Dodge v. Bruccoli, the South Carolina Court of Appeals interpreted the Act to allow hearing commissioners to award a claimant lifetime medical benefits and treatment so long as it tended to lessen the period of disability. In an effort to narrow the scope and implication of Dodge v. Bruccoli, the new law limits the duration of defendants' liability for medical benefits and provides evidentiary requirements for an award of future medicals. Specifically, it requires that the employer's liability for medical treatment be cut off in any case where there is a year-long lapse in the claimant's medical treatment. Additionally, a hearing commissioner can no longer determine what medical treatment tends to lessen a claimant's period of disability by simply relying on lay testimony. The amended law requires that the claimant provide medical evidence to support an award of future medicals.
- In Tiller v. National Health Care Center of Sumter, the South Carolina Supreme Court held that expert medical testimony or evidence was not required to establish causation of a medically complex condition for a commissioner to find the claim compensable. "Medically complex cases" are those "requiring highly scientific procedures or techniques for diagnosis or treatment." Essentially, the ruling in this case allowed a hearing commissioner to rely solely on the claimant's testimony in regards to complex medical issues, despite the lack of any medical statement regarding causation. The amendment now requires that medically complex cases, as well as repetitive trauma, aggravation, occupational disease, and mental injuries, be supported by medical evidence that establishes causation to a reasonable degree of medical certainty.
Debbie Brown is a Shareholder with Gallivan, White & Boyd, P.A. and chairs their Workplace Practices Group. She is certified by the South Carolina Supreme Court as a specialist in Employment and Labor Law, and focuses her practice on the defense of employment and workers' compensation cases.
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