What is the Maximum Compensation Rate for a Work-Related Injury?
The maximum compensation rate is adjusted every year to account for cost of living increases. The maximum weekly compensation rate for the last ten years is listed below:
- 2019 $845.74
- 2020 $866.67
- 2021 $903.40
- 2022 $963.37
- 2023 $1,035.78
- 2024 $1,093.67
- 2025 $1,134.43
In terms of total disability for 500 weeks, the maximum compensation award for 2025 will be $567,215. Generally, an individual must have earned $88,481.12 annually ($1,701.56 pre-tax wages per week) or more during the four quarters immediately preceding the quarter in which an accident occurs in order to be paid at the maximum compensation rate.
The average weekly wage and compensation rate is issued annually on January 1st by the Office of the Executive Director.
What is the Minimum Compensation Rate?
The minimum compensation rate is seventy-five ($75.00) dollars.
How is the amount of Workers’ Compensation I will Received Calculated?
Calculating Average Weekly Wage and Time Missed From Work
How Long is the Waiting Period for Temporary Benefits?
Eight (8) Days. Temporary benefits are payable when an employee has been out of work due to a reported work-related injury or occupational disease for eight (8) days, an employer may start temporary disability payments immediately and may continue these payments for up to one hundred fifty days from the date the injury or disease is reported. The day of injury is the first day of incapacity, unless the injured person receives full pay, then the first day of incapacity is the day following. The benefits are not payable during the first seven (7) calendar days after the disability begins, EXCEPT if the disability lasts for more than fourteen (14) days, compensation is allowed for all lost time. S.C. Code Ann. § 42-9-200.
How is Average Weekly Wage (AWW) Calculated?
Average Weekly Wage (AWW) means the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury. S.C. Code Ann § 42-1-40.
Average weekly wage is to be calculated by taking the total wages paid for the last four quarters immediately preceding the quarter in which the injury occurred as reported on the Employment Security Commission’s Employer Contribution Reports divided by fifty-two or the actual number of weeks for which wages were paid, whichever is less. S.C. Code Ann. § 42-1-40.
If the employee has been employed for such a short period of time that it is impractical to compute the average weekly wage, reference may be had to an employee of the same grade and character employed in the same class of employment in the same locality or community. If the foregoing method of calculation would be unfair to the employer or employee due to exceptional reasons (i.e. a particularly rapid increase in salary, such as a 63% increase in wages in less than 12 months), other methods may be employed to determine what the employee would be earning were it not for the injury. S.C. Code Ann. § 42-1-40.
In South Carolina, a Form 20 is used to calculate an employee’s average weekly wage. The Form 20 is typically completed by the company’s personnel department and forwarded to the adjuster. The adjuster reviews the Form 20 to ensure it has been completed correctly and forwards it to the Commission.
The Commission calculates the compensation rate by multiplying the average weekly wage from the Form 20 by .6667. So essentially you will receive two thirds (2/3) of your average weekly wage.
How is Workers’ Compensation Calculated if I have Two Jobs?
Generally, when an employee works at more than one job, the employee’s wages from his multiple jobs may be combined to compute his average weekly wage under worker’s compensation law. Steele v. Self Serve, Inc. 335 S.C. 323, 516 S.E.2d 674 (S.C. App. 1999). This is referred to as concurrent employment. The Claimant also has the burden of proving wages earned from jobs other than the one where the accident occurred, for purposes of calculating average weekly wage.
How are Death Benefits Compensated?
Death benefits are set out in S.C. Code Ann. §42-9-290. In order to qualify as a compensable death, the employee’s death must
- “result proximately from the accident,” and occur
- “within two years of the accident or while total disability still continues and within six years after the accident.”
S.C. Code Ann. § 42-9-290 provides burial expenses of up to $12,000 as well as compensation benefits. The section provides several classes of dependents:
- wholly dependent
- partly dependent
- surviving nondependent children
- nondependent parents
“Weekly compensation benefits must be paid to persons wholly dependent in the amount of sixty-six and two thirds of the decedent’s average weekly wages (typically compensation rate), but not less than $75 nor more than the average weekly wage in this state for the proceeding fiscal year, for a period of up to 500 weeks from the date of injury.
What is a Compensable Injury?
Injuries that qualify for Workers’ Compensation Payments
A compensable injury is “an injury by accident arising out of and in the course of the employment and shall not include a disease, except when it results naturally and unavoidably from the accident.” S.C. Code Ann. § 42-1-160
By law, the courts must interpret the language of this statute liberally in favor of the injured employee. In determining whether something constitutes “injury by accident” the focus is not on some specific event, but on the injury itself. In determining whether something constitutes “injury by accident” under workers’ compensation law, no slip, fall or other fortuitous event or accident in cause of the injury is required; unexpected result or industrial injury is itself considered the compensable accident.
Creech v. Ducane Co., 320 S.C. 559, 467 S.E.2d 114, (S.C. App. 1995). The Court of Appeals in Creech, ruled that an “Injury by accident” under workers’ compensation law includes not only injury the means or cause of which is an accident, but also an injury which is itself accident, that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, without prior occurrence of any external event of accidental character.
Basically, what this means is if you suffer an injury at work, it will be presumed to be covered by workers’ compensation regardless of whether the employee can point to any particular accident. In the Creech case, the claimant had previously suffered a back injury and had been compensated. His claim arose when he bent over to lift an object weighing less than one pound and re-injured his back.
S.C. Code Ann. § 42-1-160 defines “injury” for purposes of the Act, and requires that an injury must be “arising out of and in the course of employment.” “Arising out of” refers to the causal connection between the work and the accident. “In the course of” refers to the time, place and circumstances under which the accident occurred. Most often, these issues arise in determining whether an employee was actually working at the time of an accident. “Accident” as used in the workers compensation act, means an unlooked for and untoward event that the person who suffered the injury did not expect, design, or intentionally cause. Yates v. Life Ins. Co. of Ga. 291 SC 301, 353 S.E.2d 297 (S.C. App. 1987).
The language “injury by accident arising out of and in the course of the employment” requires not only that the injury occur within the period of employment, but also that is arise because of the employment as when the employment is a contributing proximate cause. Lee v. Wentworth Mfg. Co. 240 S.C. 165, 125 S.E.2d 7 (1962). Also, the phrases “arising out of” and “in the course of employment” are used conjunctively. One of these elements without the other will not sustain an award. The two elements must coexist. Dicks v. Brooklyn Cooperage Co. 208 SC 139, 37 SE2d 286 (1946).
Can a Claim Be Reopened Due to a Change in Condition?
Re-opening Workers’ Compensation Claims
YES (with an exception). The claim may be reopened for a change of condition for up to one year from date of the last payment. The exception applies when the claim was settled on a Clincher Agreement. R.67-801(E) The Clincher Agreement or final release relieves the employer and its representative from any further responsibility for payment of compensation or medical expenses even if the claimant’s medical condition worsens. When there has been no clincher agreement, if there has been a change of condition, the Commission may end, diminish, or increase the previous compensation award. The review cannot be made after twelve months from the date of the last payment of compensation made pursuant to the previous award. S.C. Code Ann. §42-17-90.
Under S.C. Code Ann. §42-17-90, the review of an award based on a change of condition is sharply restricted to the question of the extent of improvement or worsening of the injury on which the original award was based; consequently, the statute is not applicable to a claim which was not previously compensated.
- Owenby v. Owens Corning Fiberglass, 313 S.C. 181, 437 S.E.2d 130 (S.C. App. 1993). A change in condition means a change in the physical condition of the claimant as a result of the original injury, occurring after the first award.
- Causby v. Rock Hill Printing & Finishing Co., 249 S.C. 225, 153 S.E.2d 697 (1967). If a claimant seeks review, the claimant must prove a change of condition and a causal connection between the change and the original compensable accident. The issue of change and causation are issues of fact to be determined by the Commission.
- Allen v. Benson Outdoor Advertising Co., 112 S.E.2d 722 (S.C. 1960). If claimant’s mental condition is causally connected to the original, compensable physical injury, and is a newly manifested symptom of original injury which has caused worsening of the condition it can be considered in the change of condition proceeding.
- Estridge v. Joslyn Clark Controls, Inc., 325 S.C. 532, 482 S.E.2d 577, rehearing denied (S.C. App. 1997).
The claimant may request an informal conference by letter to have the employer pay for a medical evaluation to determine if there has been a change of condition. R.67-602(C).
What is a Non-Compensable Injury?
Injuries that are NOT eligible for payments under Workers’ Comp Law
No compensation is payable for employees:
1) refusal to wear safety appliance provided and required,
2) intoxication, or
3) willful intent to injure one’s self. S.C. Code Ann. § 42-11-100.
Examples of injuries that may NOT receive workers’ compensation include: stress, heart attack, repetitious / repetitive motion, coming and going, hernia, intoxication and horseplay.
Stress/Mental Injury:
Stress arising out of and in the course of employment unaccompanied by physical injury and resulting in mental illness or injury is not a personal injury unless it is established that the stressful employment conditions causing the mental injury were extraordinary and unusual in comparison to the normal condition of the employment and if the stress is not result of any event or series of events which is incidental to normal employer/employee relations including, but not limited to , personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations, except when these actions are taken in an extraordinary and unusual manner. S.C. Code Ann. § 42-1-160.
A mental injury which causes a mental condition may be compensable under certain circumstances. Mental injuries are compensable under workers’ compensation law if induced by either physical injury or unusual or extraordinary conditions of employment. Getsinger v. Owens-Corning Fiberglass Corp. 335 S.C. 77, 515 S.E.2d 104 (S.C. App.1999). “Unusual or extraordinary conditions in employment, “required for a workers’ compensation claimant to recover for a mental-mental injury, refers to conditions extraordinary to the particular job in which the injury occurs, rather than to employment in general. Shealy v. Aiken County 341 S.C. 448, 535 S.E.2d 438 (S.C. 2000).
Repetitive Trauma Injuries:
S.C. Code §42-1-172 defines a “repetitive trauma injury” such as carpal tunnel syndrome for purposes of coverage under the Workers’ Compensation Act.
Preexisting Conditions:
S.C. Code §42-9-35 addresses pre-existing conditions. If an employee has a preexisting condition that is aggravated by a work accident then it becomes a covered part of the injury. For example, a person may be pain free and have no idea that they have arthritis in their knee. Assume they injure their knee and the doctor informs them that they had preexisting arthritis and now need a knee replacement. If the doctor also agrees that the person’s condition was aggravated or worsened by the work injury, then all that care will be covered.
Heart Attack/Stroke:
A heart injury, when brought on by overexertion or strain in the course of work, is compensable, though a pre-existing pathology may have been a contributing factor. But in order to obtain an award for any accidental injury resulting from aggravation of heart trouble, there much be a sudden, unusual exertion, violence or strain.
- Raley v. Camden 222 S.C. 303, 72 S.E.2d 572 (1952).
A heart attack suffered by an employee constitutes a compensable accident under the Workers’ Compensation Act if it is induced by unexpected strain or overexertion in the performance of his duties of employment, or by unusual and extraordinary conditions in employment; however, if a heart attack results as a consequence of ordinary exertion that is required in performance of employment duties in an ordinary and usual manner, and without any untoward event, it is not compensable as an accident.
- Shealy v. Aiken County 341 S.C. 448, 535 S.E.2d 438 (S.C. 2000).
If an employee dies of a heart attack, cerebral hemorrhage, apoplexy or other injury to the blood vessels, he or she must show not only that the injury was in the course of employment but also that the death arose out of employment, in that is was brought about by unexpected strain or over-exertion, or as a result of unusual and extraordinary conditions or employment; however, if such an injury results as a consequence of the ordinary exertion that is required in the performance of the employment duties in the ordinary and usual manner, and without any outward untoward event, it is not compensable as an accident.
- Jennings v. Chambers Development Co. 335 S.C. 249, 516 S.E.2d 453 (S.C. App. 1999).
Intoxication:
An injury resulting from an employee’s intoxication is not compensable. S.C. Code Ann. § 42-9-60. The rule applies even if the alcohol is provided by the employer. Spoone v. Newsome Chevrolet Buick, 412 S.E.2d 434 (Ct. App. 1991). However, the intoxication must be causally related and the proximate cause of the injury. For intoxication to be a bar to recovery, it must be the proximate cause of the injury, and not just precede the injury. Kinsey v. Champion Am. Service Center 268 S.C. 177, 232 S.E.2d 720 (S.C. 1977).
Coming and Going to / from Work:
When an employee is injured off the employer’s premises while coming to or going from work, the injury is generally not compensable. There are, however, numerous exceptions making the injury compensable:
- 1) If the employer provided the means of transportation or pays travel time;
- 2) If the employee performs duty or task connected with his employment during the commute;
- 3) If the way used is inherently dangerous and it is either
- (a) the exclusive way of egress or ingress to and from work or
- (b) it is constructed and maintained by employer;
- 4) If the place where the injury occurs is in such close proximity to the workplace that it is brought within the scope of employment; and
- 5) If the injury occurs while the employee is on a special errand for the employer. Aughtry v. Abbeville County School District. No. 60, 332 S.C. 453, 504 S.E.2d 830, rehearing denied, reversed 340 S.C. 604, 533 S.E.2d 885 (S.C. App. 1998).
Hernia:
In an attempt to limit compensation to those cases when there is a close connection between the accidental injury and the hernia, and to ensure that only work-induced hernias are compensable, the legislature has prescribed five elements that a claimant must establish in addition to showing that the hernia resulted from an injury by accident arising out of and in the course of his employment. These elements are:
- (1) that there was an injury resulting in a hernia or rupture;
- (2) that the hernia or rupture appeared suddenly;
- (3) that it immediately followed the accident;
- (4) that it did not exist prior to the accident for which compensation is claimed; and
- (5) that it was accompanied by pain. S.C. Code Ann. § 42-9-40.
Horseplay:
Horseplay may involve an injured “innocent victim” or an “instigator.” Generally, the injury of an innocent employee in the course of his employment by the horseplay of a fellow employee in which the injured did not participate, arises out of the employment and nothing more appearing, is compensable. Allsep v. Daniel Const. Co., 216 S.C. 268, 57 S.E.2d 427 (S.C. 1950). The compensability of injuries sustained by an instigator remains an unresolved question in South Carolina, but the language of some opinions suggests instigator’s injuries are not compensable.
Intentional Acts:
The Workers’ Compensation Act provides that no compensation is payable where an injury or death is the result of an employee’s willful intention to injure or kill himself or another.
What Are the Different Work Comp Forms and When do They Need to Be Filed?
An Overview of Workers’ Compensation Forms in South Carolina
The forms are published by the Workers’ Compensation Commission. Packets of originals are available from the Commission on request. The packet includes an overview of the forms, highlights the most often used and the most important form and explains there usage. Most are self-explanatory and most reference the relevant regulations on the bottom margin.
- Form 12-A –Must be filed within ten (10) days of reported accident/injury unless costs are under $2,500 and employee loses no time from work.
- Form 12-M –medicals only reported injury
- Form 14B – Physician’s Statement – addressing MMI and rating
- Form 15 –Temporary Compensation Report
- Section I—filed ten (10) days after compensation begins; Section II –filed then (10) days after compensation is terminated; Section III –Claimant’s request for hearing
- Form 15S –Supplemental Report of Varying Temporary Partial Payments –filed when temporary compensation varies from week -to –week (six months after initial compensation begins).
- Form 16A – Agreement for Compensation – filed when settlement is reached (other than Clincher).
- Form 17 – Receipt of Compensation – you may ask employee to sign this form fifteen (15) days after employee returns to work or agrees he can return to work. It can be signed when the “claimant returned to work without restriction,” or “claimant agrees that he/she was able to return to work.”
- Form 18 – Six (6) Month Report – required to be filed with Commission every six (6) months while claim is open to verify all compensation is current. Completed copy must always accompany Form 21.
- Form 19 – Status Report and Compensation Receipt –verifies the amount of compensation paid; must be filed when claim is denied or settled on a Form 16 or Clincher Agreement. This is a receipt showing that all payments due under the Clincher have been paid to the employee and the matter has been resolved.
- Form 20 – Statement of Days Worked and Earnings of Injured Employee (Wage Calculation)– must be completed and submitted within thirty (30) days after notice of injury or within thirty (30) days after receipt of Form 50, claimant’s hearing request. Used to determine compensation rate.
- Form 21– Employer’s Request for Hearing – filed with Form 18 and other appropriate documents as noted on the form. Used to stop or reduce payment of temporary compensation or pay permanent disability after a claimant reaches maximum medical improvement.
- Form 30 – If an employer or employee is not happy with the decision of a commissioner at a contested hearing, either or both parties may appeal the Commissioner’s decision. An initial appeal is made pursuant to a Form 30 filed with the Commission. It must be filed within fourteen (14) days of the losing party receiving a copy of the Commission’s Order. Appeals from the Full Commission are made to the Circuit Court of the County in which the accident occurred. Decisions of the Circuit Court may be appealed to the South Carolina Supreme Court.
- Form 50 – Claimant’s Notice of Claim and Request for Hearing – claimant must file Form 50 within two (2) years of the date of injury.
- Form 51 – Employer’s Answer to Request for Hearing – must be filed within thirty (30) days after receipt of claimant’s request for hearing.