Welcome to Collins & Lacy, P.C.
We hope you will enjoy this edition of Collins & Lacy's electronic newsletter, Workers' Compensation Quarterly. Our goal is to provide you with timely information and updates on legal issues related to the practice of workers' compensation law. Please do not hesitate to contact us if you need any additional information.
Ellen M. Adams
Chair, Collins & Lacy Workers' Compensation Practice Group
| Lacy's Legal Pad
Workers' Comp Update
By Founding Partner Stan Lacy
eCase is Easy
The South Carolina Worker's Compensation Commission has rolled out its updated eCase program, opening up a new dimension in Internet-based claim status programming. The system allows attorneys, carriers and TPAs to review the status of their files at any time. No calling the Commission. No writing letters (in fact, letters asking about the status of a file are discouraged). Everything you need to know about all files in which you are the attorney, TPA or carrier is now at your fingertips on the Internet.
The innovative eCase program allows you to view any of your files to see the status of a case, who the attorneys are, what has been filed and when. You can search by WCC # number, claimant's Social Security Number or hearing date range. If you want to know what cases are scheduled for a hearing during the months of March and April, eCase will list them for you. You also can search by status groups. The list of status groups gives you many options. For example, you can request a list of all pending cases in which you have a hearing request. Additionally, you can get a list of cases you have recently closed. Those are just two examples of the multiple search functions of the eCase program.
The Commission has worked diligently on this program for more than a year. This is something the system has needed, and everyone should learn how to use it. It's useful, it's quick, and it's easy. All you have to do is register, which also is easy. Go to the Commission's website at www.wcc.sc.gov, and print or download a copy of the user's guide. It walks you through a few steps to become registered. Registration must be approved by the Commission as well as the carrier, law firm or TPA. Once registered, you can connect to any of your files.
|South Carolina Case Law Update
Compiled by Anne Marie Hempy
Two in One: Court rules on Calculation of Average Weekly Wage and Seller Liability
Pilgrim v. Billy Eaton and Rufus Revis, and S.C. Workers' Compensation Uninsured Employers' Fund, Op. No. 4767, S.C. Ct. App., filed 12/15/2010.
In this case, which the Court acknowledged was limited to its specific facts, the sale of a business did not relieve the seller of liability as a statutory employer when the business continued to operate under seller's contractor's license. Additionally, calculation of average weekly wage based on a 40 hour week was erroneous when Claimant only worked a total of 29.5 hours.
Eaton and Revis owned a contracting business. They contracted with Kern for Kern to provide his carpenters to Eaton's project. Claimant was one of Kern's carpenters provided to the job. While working on the roof of an Eaton building, Claimant fell, seriously injuring his back. The Commission found Eaton and Revis were both statutory employers. Revis, however, contended he sold the entire business to Eaton and had no liability. The Court found Revis sold only an interest in the business to Eaton and remained involved because he held the required contractor's license. The Court affirmed the finding of the Commission but noted its holding applied only to the specific facts of this case, not to other cases involving the sale of a business.
In a separate issue, the Commission calculated Claimant's average weekly wage by multiplying his $18.00 hourly rate by 40 hours. In reality, Claimant worked a total of 29.5 hours for Kern, all on the Eaton job. The Court held this was error under §42-1-40 because the method is not one permitted by the statute. The Commission must make a factual finding as to which of the methods listed in §42-1-40 yields the fairest result and apply it.
Claimant Tries to Avail Himself of a Wage Loss Award
Joyner v. Sumter County, Unpublished Op. No. 2010-UP-544, S.C. Ct. App., filed 12/16/2010.
The South Carolina Court of Appeals affirmed the South Carolina Workers' Compensation Commission Appellate Panel's decision that the Claimant, a landfill worker, is not totally incapacitated from work due to an injury.
The Commission found Claimant sustained only 30% disability to the back and 15% disability to the right leg. Claimant appealed, alleging he was permanently and totally disabled based on 50% or more loss of use of the back. He testified he was in constant pain, could not stand for long periods, was unable to walk far distances, had to use a cane, could not bend, and could not take pain medications due to prior gastric bypass surgery. Claimant also submitted the report of a vocational counselor, who opined no "reasonably stable job market exists or will exist for the types of services that [Claimant] is . . . capable of performing/sustaining."
Though Claimant had only a tenth grade education and lacked transferable job skills, the Court of Appeals placed great weight on the fact Claimant missed no time from work due to his injury, and the job did not require lifting. Further, the treating physician said Claimant could return to work with restrictions of limited sitting, standing, walking and occasional lifting. The Court found substantial evidence supported the Commission's finding that the Claimant sustained less than 50% loss of use of the back and affirmed the award to the two scheduled members.
Workers' Compensation Offset Clause in an Auto Insurance Policy
Darryl Sweester v. S.C. Dept. of Ins. Reserve Fund, Op. No. 26905, S.C. Sup. Ct., filed 12/20/2010.
The Court held an employer could apply a workers' compensation offset clause in an auto insurance policy to reduce the amount of uninsured coverage a Claimant could recover. The offset would reduce the Claimant's uninsured recovery below the $15,000 minimum required under state law.
Claimant was injured in a traffic accident while riding as a passenger in a work-owned vehicle. The collision was caused by an uninsured driver. Claimant collected $13,520.21 in workers' compensation benefits and filed a separate tort action against the uninsured driver. He filed this declaratory judgment action to determine whether his recovery in the tort suit could be offset by his workers' compensation award, even if that offset would reduce his recovery to below the statutory minimum for uninsured coverage.
The Court distinguished its decision from that of a prior case, which held it was against public policy to offset against uninsured benefits. The prior case applied to an employee's own policy, whereas the rule in this case applied to the employer's policy. The Court held, "[i]f an employer opts to provide voluntary bodily injury coverage for his employees, no public policy is violated if the employer is permitted to offset the employee's recovery under the automobile policy against the employee's compensation benefits, so long as that offset does not operate so as to make the employee less than whole."
In the News:
Collins & Lacy Workers' Comp Team
Collins & Lacy, P.C. is proud to announce two attorneys have received the South Carolina Lawyers Weekly Emerging Legal Leaders Award. Suzanne (Suzy) Boulware Cole and Robert F. Goings were among the 10 attorneys honored at the magazine's January reception at the Columbia Metropolitan Convention Center. The winners were chosen for their professional excellence, community involvement and contributions to the practice of law.
As a shareholder concentrating in workers' compensation in Collins & Lacy's Greenville office, Cole has tried numerous cases before the Workers' Compensation Commission and argued before the South Carolina Court of Appeals and the South Carolina Supreme Court. She also argued before the Workers' Compensation Commission sitting en banc in the wake of the hotly-contested executive orders issued by Governor Mark Sanford.
"I am thrilled to have been selected for this honor. I enjoy the practice of law and my community involvement and find it rewarding to be recognized for doing the things that I love." Click here to read more.
Collins & Lacy, P.C. is pleased to announce attorney Kristian Cross has been chosen to serve on the board of Sexual Trauma Services of the Midlands.
Sexual Trauma Services of the Midlands (STSM) is one of 16 rape crisis centers in South Carolina. STSM provides crisis intervention, advocacy and support services to child and adult survivors of sexual assault and also educates the public about issues that arise or are often associated with sexual trauma cases. Kristian says her mother was very active in a similar organization.
"When I was little, I used to go with my mom to bring supplies and visit with some of those victims. I saw the good that people can do by helping others." Click here to read more.
Every young woman deserves a happily ever after. That is one reason Collins & Lacy, PC associate Anne Marie Hempy
is volunteering with the Cinderella Project for the fourth year in a row.
Hempy is the Committee Chair of The South Carolina Bar Foundation's Young Lawyer Division's Cinderella Project. This year she is also serving as the coordinator of the Greenville Project. The SC Bar started the Cinderella Project ten years ago. It involves gathering donations of gently worn formal gowns, shoes and accessories for disadvantaged high school students. In March, young ladies from area high schools are invited to a boutique to "shop" for a dress and other items at no cost.
Anne Marie says every girl deserves to feel like a princess at her prom. "Some of these girls have never shopped for a formal gown before, and they get so excited. I love to help them find the right dress - to help them feel beautiful." Click here to read more.
Rebecca K. Halberg
When Rebecca Halberg was a young girl, she wanted to be a news reporter. As she got older, that dream matured into a desire to still use her voice and career to help people - only this time it was not on camera. It was in the courtroom.
"As an attorney, I get to spend my days helping the businesses and citizens that make South Carolina great," said Rebecca.
Rebecca is a senior associate with Collins & Lacy practicing in workers' compensation. She received her Juris Doctor from the University of South Carolina School of Law. Rebecca's commitment to community service was honored by the Rotary Club of Five Points in 2008 as she was awarded the Charles C. Foster Rotarian of the Year. She was recently appointed to the Kids' Chance of South Carolina Board of Directors, a nonprofit organization that provides financial scholarships for children of seriously injured or deceased workers.
"The benefits from Kids' Chance scholarships go beyond improving individual students' lives," said Rebecca. "Kids' Chance helps teens go to college who may not have otherwise had the opportunity to do so. Kids' Chance graduates are working as nurses, doctors and lawyers."
A lawyer - helping future lawyers - Rebecca says being able to give back is one of the most rewarding parts of her job.
Click here to learn more about Rebecca.
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