Lacy's Legal Pad 

  Workers' Comp Update
  by Founding Partner, Stan Lacy

 

 BARDEN APPROVED, CREEL IN LIMBO   
 The Senate approved Commissioner Susan Barden for a second term last week but did not act on Lewis Creel's appointment.  The Senate is now out of session, so Commissioner Bryan Lyndon will continue to serve until a new Commissioner is named.  Conventional wisdom is that the Senate did not vote on the Sanford appointee to give the new governor the opportunity to name the new commissioner next year.

BECK ELECTED INTERIM CHAIRMAN
Commissioner Scott Beck has been elected interim Chairman of the Commission beginning July 1, 2010.  Commissioner Andrea Roche's term expires on June 30 and the governor has not appointed a replacement.  The regulations provide the Commissioners elect someone to serve as interim Chairman until the governor makes an appointment.  Commissioner Beck was elected.

MEDICAL FEE SCHEDULE NOW AVAILABLE
The new Medical Fee Schedule is now available from the Commission.  Its effective date is July 1, 2010.  To order yours, go click here.

IMEs DROPPED FROM FEE SCHEDULE
Independent Medical Evaluations (IMEs) are no longer listed in the Fee Schedule.  This means doctors can charge whatever the market will bear.  In the past, doctors who performed IMEs were limited as to what they could charge.  Most recently, they were limited to $600.  Not any more.  Doctors can now charge whatever the parties are willing to pay.  Several Commissioners have said they are keeping a close watch on IME charges but have not seen a great increase as expected.  Most doctors seem to be charging in the $750 range for such examinations.

IT IS BECOMING A VIRTUAL WORLD
Conversion to electronic filing is progressing nicely.  Presently, orders are submitted electronically, signed electronically, and served electronically.  Soon, all forms will be submitted electronically, including Form 18s and APAs.  This will significantly reduce the amount of paperwork at the Commission but is also anticipated will reduce the number of fines for late filings thereby depriving the Commission of needed cash.

OMBUDSMAN POSITION VACANT AND WILL REMAIN UNFILLED

You successfully negotiated the settlement of a workers' compensation settlement with the Claimant.  Prior to sending the paperwork to defense counsel to request a clincher conference, you receive notice from the South Carolina Department of Social Services (DSS) that the Claimant owed back payment of child support.  The letter gives you notice of a lien that attaches to any and all proceeds from your workers' compensation claim with Claimant.  After reviewing the letter, you notice the lien amount is greater than the settlement of the proposed workers' compensation claim.  You are afraid if you tell claimant about the lien, it could unravel the proposed settlement.  What should you do? Click Here to Read Full Article

Bartley, teacher, sustained admitted work-related injuries to her low back, right shoulder, neck, right arm and hand, left knee, and migraine headaches as a result of being inadvertently knocked down by a student in 2002.  Upon obtaining employment with another employer in 2003, Bartley completed a medical questionnaire indicating that she did not have problems with arthritis, back pain, joint pain, or any other chronic illness. Bartley underwent cervical fusion surgery.  In 2004, Bartley exacerbated her back and underlying psychological problems. Click Here to Read Full Article  

 

Not All Acts "Arise Out Of" Employment
Ervin was a unit secretary at Richland Memorial Hospital, which included such tasks as answering phones, greeting hospital visitors and new patients, and entering data. Claimant alleged that she was exposed to perfume fragrances at work and the exposure aggravated and exacerbated a preexisting condition causing her to become permanently and totally disabled. Click Here to Read Full Article

SC Courts Now Take an "Even-Handed Approach" When Determining Whether an Employer-Employee Relationship Exists
Wilkinson, a truck driver, was killed in a motor vehicle accident while driving for Palmetto State Transportation Company ("Palmetto"). Wilkinson was a long-haul truck driver who was employed at Palmetto at one time, but subsequently chose to alter his relationship to that of independent contractor. Wilkinson and Palmetto entered into an independent contractor agreement, Wilkinson purchased his own tractor, withheld his own taxes, and purchased his own workers' compensation policy. Additionally, termination of the independent contractor agreement required thirty days' notice by either party and wrongful termination of the agreement entitled the non-breaching party to recover damages. Click Here to Read Full Article

Recently, the Commission undertook the much-needed task of amending and revising the S.C. Workers' Compensation Regulations (S.C. Regs., Chapter 67, et al). After the passage of
the Workers' Compensation Reform Act in 2007, the Regulations were not updated to reflect the changes to the S.C. Code. [1] With these revisions, the Regulations now mirror the new provisions of Section 42 of the S.C. Code. In addition, the revised Regulations reflect the Commission's paperless initiative and movement towards a totally electronic system.  The purpose of this article is to highlight and discuss the revisions that will most affect your daily practice.Click Here to Read Full Article