- What Formula is Used to Determine Wage Loss / Disability Benefits?
- May the Amount of Temporary Total Disability (weekly TTD) paid out, be credited toward the Amount of a Permanent Disability Award?
- What Formula is Used to Determine Wage Loss Benefits?
- What are the Rules Around Terminating Temporary Benefits?
- Can I choose my own physician or doctor for recovery while receiving workers’ comp?
- What are the time limits for Compensation payments, Total Temporary Disability (TTD) and Medical Bills to be paid?
- Can a claim be settled in a lump sum?
- What is the number of weeks for total and permanent disability?
- Additional questions and answers about workers’ compensation
What Formula is Used to Determine Wage Loss / Disability Benefits?
Calculation of disability for scheduled injuries is done according to a formula set out in the Workers’ Compensation Act. Each body part is assigned a particular number of weeks in S.C. Code Ann. § 42-9-30. To determine the disability of an individual, the employee’s compensation rate is multiplied by the number of weeks for the injured part set out by the statute and then multiply the resulting amount by the percentage of impairment that the doctor has given the claimant to determine the amount of disability benefits owed.
FORMULA: (Comp Rate X # weeks) X % impairment rating = Disability Benefits Owed
Example: Employee has a compensation rate of $100. He has suffered an injury to his leg. His doctor released him to go to work at Maximum Medical Improvement (MMI) and gave him a 10% impairment rating to the leg. The leg is valued at 195 weeks per SC Code §42-9-30. Based on this information Claimant would be awarded $1,950.00.
($100 X 195weeks) X .10 (10% rating) = $1,950.00
Disability does not equal Impairment. Unlike some states, impairment is an “objective” finding by the medical provider. Disability is a “subjective” factual determination made by the Commission in South Carolina. Impairment is but one factor in the determination of disability. Age, physical condition, education, training, nature of the injury, and work experience are some of the other factors the Commission may take into consideration, as well as their subjective opinion. The AMA Guide is relied upon by the Commission in some, not all, situations. It is not unusual for the Commission to award an amount in excess of the claimant’s impairment rating.
This can result in unpredictable awards. For instance, a 60 year-old, poorly educated, manual laborer with a 15% impairment rating to his back and 15-pound lifting restriction may be given an award of Permanent and Total Disability (500 weeks) because of his reduced ability to earn a living. A lawyer with the same injury and limitations may only receive 15% disability to the back (45 weeks) because he is still able to perform his job.
Another factor is the compensation rate. Two employees may have very similar injuries, but are paid differently. A $20 per hour employee’s award may be twice the amount of a $10 per hour employee although the results from their injuries are exactly the same.
Clincher Agreements
A Clincher Agreement is entered between an employee and the company to permanently resolve a claim without any additional liability. Once a Clincher Agreement has been entered, an employee cannot ever come back with complaints about the same injury and he/she has no claim for a change of condition.
May the Amount of Temporary Total Disability (weekly TTD) paid out, be credited toward the Amount of a Permanent Disability Award?
Not usually for partial disability. However, if TTD benefits are continued after an employee reaches MMI the employer/insurance carrier may be due a credit against an award of partial disability. Also, in cases of Permanent and Total Disability the employer is entitled to a credit against the 500 weeks for all the weeks of TTD paid.
What Formula is Used to Determine Wage Loss Benefits?
Calculation of disability for wage loss is done pursuant to S.C. Code § 42-9-20. An employee must have two or more body parts injured to qualify for wage loss benefits. Wage loss is calculated by determining the wages an employee could earn prior to the injury versus the wages an employee can earn after reaching MMI. For instance, assume an employee was earning $1,000 a week before his injury. After his injury he is only able to earn $450 per week. The Commission will subtract $450 from $1000 = $550, then take 2/3 of that amount to get a wage loss rate ($550 x .6667) = $366.69. After that the employee may be awarded 340 weeks at the new wage loss rate of $366.69 = $124,674.60.
What are the Rules Around Terminating Temporary Benefits?
Terminating Temporary Benefits Before or After 150 Days
Temporary Compensation is due on the eighth (8th) calendar day of incapacity and payments may continue for up to 150 days from the date the injury or disease is reported without waiver of any grounds for good faith denial. Upon making first payment, the employer immediately shall notify the commission, in accordance with the form prescribed by the commission, that payment of compensation has begun. If incapacity lasts for more than 14 days, then benefits are due for the first seven. The company’s insurance adjuster is responsible for filing a partially completed Form 15 when payment of temporary benefits begins (Section I of the form). The Form 15 must be filed with the Claims department and served on the claimant with the claimant’s first check. S.C. Code Ann. §42-9-260.
Within 150 Days
Within the first 150 days from the date the injury is reported, the claim may be denied, even if the employer has begun payment of temporary benefits. There are six grounds for stopping payment of benefits during the initial 150 days:
- (1) The employee has returned to work. However, if the employee does not remain at work for a minimum of 15 days, temporary disability payments must be resumed immediately; or
- (2) The employee agrees that he/she is able to return to work and executes the proper Commission form (Form 17) indicating that he/she is able to return to work; or
- (3) A good faith investigation by the employer reveals grounds for the denial of the claims; or
- (4) The employee has been released by the treating physician to work without restriction and the employer offers comparable employment; or
- (5) The employee has been released by the treating physician to limited duty work and the employer provides limited duty work consistent with the terms upon which the employee has been released; or
- (6) The employee refuses medical treatment or refuses an examination or evaluation and the termination or suspension of benefits continues until the refusal ceases or the Commission determines that the refusal is justified.
After the 150 day period has expired, the employer’s representative shall not suspend or terminate temporary compensation except as provided in R.67-506.
Temporary compensation may be suspended as follows:
- (1) When the authorized health care provider reports the claimant is able to
return to work without restriction to the same or other suitable job and
such job is provided by the employer; - (2) When the authorized health care provider authorizes the claimant is able to
return to work at limited duty and employer provides limited duty work
consistent with the restrictions. - (3) When the claimant returns to work for another employer, unless temporary
partial compensation is due.
With all of the above, compensation may be suspended unless temporary partial compensation is due.
After the 150 day period has expired, the commission shall provide by Regulation 67-505 the method and procedure by which benefits may be suspended or terminated for any cause, but the regulation must provide for an evidentiary hearing and commission approval prior to termination or suspension unless such prior hearing is expressly waived in writing by the recipient or the circumstances identified in (1) or (2) above are present. Further, the commission may not entertain any application to terminate or suspend benefits unless and until the employer or carrier is current with all payments due.
Failure to comply with this section shall result in a twenty-five percent penalty imposed upon the carrier or employer computed on the amount of benefits withheld in this section.
When compensation is terminated or suspended, the employer’s representative shall complete Section II of the Form 15, Temporary Compensation Report. The employer’s representative shall file the Form 15 immediately with the Claims Department and shall serve two copies of the From 15 immediately on the claimant. The claimant may request a hearing to dispute the termination of temporary compensation by completing Section III of the Form 15 and filing it with the Commission.
If an injured employee refuses to sign a Form 17 in any of the three cases noted above, then the employer is required to continue paying temporary benefits and file a Form 21 with the Commission to obtain permission to stop payment.
When the claimant is unable to complete 15 calendar days of work, the employer’s representative shall reinstate compensation according to the terms of the Form 15, but may request a hearing to determine compensation by filing a Form 21.
If the claimant completes 15 calendar days of work, or 15 days after the claimant agrees he/she could have returned to work, the claimant should be provided with a completed Form 17 for signature. The signed Form 17 must be filed with the Claims Department within 31 days of the date the claimant returned to work or agreed he/she was able to return. Filing the form 17 terminates temporary compensation. If claimant returns to work and refuses to sign a Form 17, the employer may file a Form 21, request for hearing. When the employer’s representative suspends benefits for a claimant’s refusal of medical treatment, the employer must file a Form 21 also.
Regulation 67-506 states that if the claimant is receiving temporary benefits and the authorized health care provider reports that the claimant may return to work at the same or other suitable job and such job has been offered by the employer but the claimant refuses to return to work, the employer must continue payment of temporary compensation. Likewise, if the claimant is receiving temporary benefits and the authorized health care provider assigns an impairment rating and reports the claimant is unable to return to work at the same or other suitable job, the employer must continue payment of temporary benefits.
In instances such as these and also where the employee and employer do not agree to a suspension or termination of benefits, the employer must request a hearing to terminate benefits by filing the Form 21. The Form 21 must be accompanied by supporting documentation such as doctor’s report, or unsigned Form 17, Form 18, Form 19 or 20 (if not previously filed). The Form 21 must be served on the claimant according to R 67-211. The Commission may schedule an info
Can I Choose My Own Doctor if I am Receiving Workers’ Comp?
The adjuster chooses authorized health care providers and pays for authorized treatment. R. 67-509; S.C. Code Ann. §42-15-60. If a claimant goes to his own doctor after an injury and is excused from work, the employer can require the employee to be evaluated by the company doctor and return to work if the company doctor so directs. Further, the employer/carrier is only responsible for payment of services by authorized medical providers. An employer is not responsible to pay for other doctors that an employee obtains treatment from. However, at a hearing an attorney for an injured worker may be able to get unauthorized treatment paid for or get a new doctor assigned to treat the claimant.
What is the Time Limit for Compensation, TTD and Medical Bills to Be Paid?
Work Comp Payment Time Limits and Possible Penalties
Compensation
Under Agreement: The first installment of compensation, payable under the terms of an agreement, is due on the fourteenth day after the employer has knowledge of the injury or death. Thereafter, it must be weekly (or monthly if ordered by the Commission) on the same day of week. S.C. Code Ann. §42-9-230.
Under Award: The first installment of compensation payable under the terms of an award by the Commission or under the terms of a judgment of a court upon an appeal from such an award shall become due seven days from the date of such an award or from the date of such a judgment of the court, including interest from the original date of the award. Thereafter, it must be paid weekly. S.C. Code Ann. §42-9-240.
TTD – Temporary Total Disability
Temporary Benefits are due eight (8) days after incapacity. If benefits are improperly withheld, an employer may be subjected to a 25% penalty based on the amount withheld. S.C. Code Ann. §42-9-260.
For General disability, the period coved by compensation may not exceed five hundred weeks. However, if the claimant is totally and permanently disabled and is either a paraplegic, a quadriplegic, or has suffered physical brain damage, the claimant is entitled to lifetime benefits. S.C. Code Ann. §42-9-10. The limit for TTD in partial disability claims is outlined in the schedules and charts referenced above and attached. If an employer’s representative suspends, terminates or reduces temporary benefits without first complying with all necessary procedures, the claimant may be entitled to additional compensation and penalty. R.67-510.
Medical Bills
Payment to an authorized health care provider for services shall be made in a timely manner, but no later than thirty (30) days from the date the authorized health care provider tenders request for payment to the employer’s representative, unless the Commission has received a request to review the medical bills. S.C. Code Ann. §42-9-360(D). Medical treatment, as may be reasonably required, shall be provided by the employer for a period not exceeding ten weeks from the date of injury to effect a cure or give relief and for additional time with judgment by the Commission if it will tend to lesson the period of disability. S.C. Code Ann. §42-15-60. There is no liability on the part of an employer to furnish medical treatment to an injured employee beyond ten weeks from the date of injury unless in the judgment of the Commission it “will tend to lessen the period of disability.” Dykes v. Daniel Const. Co. 262 S.C. 98, 202 S.E.2d 646 (S.C. 1974). Medical benefits provision of Workers’ Compensation Act allows the Workers’ Compensation Commission to award medical benefits beyond 10 weeks from the date of injury only where the Commission determines such medical treatment would tend to lessen the period of disability. Dodge v. Brucoli, Clark, Layman, Inc., 334 S.C. 574, 514 S.E.2d 593 (S.C. App. 1999).
Does the employer have to begin paying total temporary disability benefits from the date the disability begins?
NO. If the case is denied, no benefits are due until ordered by the Commission.
Could there be any penalties for not beginning benefits promptly?
YES. If the case is admitted, benefits must be paid promptly according to the regulations. A penalty and/or interest may be assessed for late payments. R. 67-1602 (D). The interest is ten (10) percent of the unpaid installment. S.C. Code § 42-9-90. See also S.C. Code Ann. § 42-9- 230. Temporary benefits may be terminated up to 150 days after the injury is reported. Ground for termination of temporary benefits is discussed more thoroughly below.
Can a Claim be Settled in a Lump Sum?
Receiving a lump sum settlement for your work related injury
Can a claim be lump sum settled?
YES. However, compensation is normally paid on a weekly basis. Whenever any weekly payment has been continued for not less than six weeks, the liability for weekly payment may be redeemed by the payment of a lump sum fixed by the Commission. Payment by lump sum is possible if it is not contrary to the employee’s best interest and it is either (1) requested by the employee, or (2) requested by the employer to prevent undue hardship. The burden of showing facts sufficient to justify a lump sum settlement is on the claimant. Ashley v. Ware Shoals Mfg. Co. 210 S.C. 273, 42 S.E.2d 390 (S.C. 1947). Undoubtedly it was intended that periodic payments should be the rule and lump sum settlements the exception.
The lump sum may not be less than ninety (90%) percent of the commuted value of the future installments. The future installments must be commuted so as not to exceed six percent (6%) nor be less than two percent (2%). S.C. Code Ann. §42-9-301. The Commission may not order a lump sum payment without notice to the employer and carrier, who are entitled to be heard on the issue. Todd v. Holt & Vereen Constr. Co., 281 S.E.2d 215 (S.C. 1981).
Regulations 67-1605 (lump sum payments) and R. 67-1606 (lump sum payments in claims involving fatalities) provide a specific procedure for lump sum payments. R.67-1605 states that the employer’s representative shall pay, in lump sum, a settlement or award which is less than one hundred weeks. When a settlement or award is more than one hundred weeks, the Hearing Commissioner may order a lump sum payment or the claimant may request a lump sum payment by filing a WCC Form 24, Application for Lump Sum Payment.
What is the number of weeks for total and permanent disability?
Five hundred (500) weeks for permanent and total disability and lifetime medicals. However, if the claimant is totally and permanently disabled and is either a paraplegic, a quadriplegic, or has suffered physical brain damage, the claimant is entitled to lifetime benefits. S.C. Code Ann.
§ 42-9-10.
Also, if a claimant has an impairment to the back of 50% or more, he is presumed permanently and totally disabled; therefore, receiving 500 weeks of compensation. S.C. Code Ann. § 42-9-30 (19).
Permanent and total disability is typically paid in lump sum, in which case it must be reduced to the present value of the remaining weeks owed. However, in cases where lifetime benefits are awarded, the award cannot be paid in lump sum.
Additional Workers’ Compensation Information
Common Work Comp Questions | South Carolina Work Injury Lawyer
What are the scheduled parts worth?
Disability for scheduled parts are divided into two categories. If the specific part is covered under S.C. Code Ann. § 42-9-30, an award must be made pursuant to the statute. If the statute does not cover the specific part, reference should be made to the scheduled parts listed in the regulations. S.C. Code Ann. § 42-9-30(20); R. 67-1105. See attached chart.
What situation would place responsibility on the employer to pay claimant attorney fees?
In appeals to the Supreme Court or Court of Appeals, costs are taxed against the appellant when an appeal is dismissed or affirmed. When a judgment is reversed, costs are taxed against the respondent. Costs include attorney’s fees of $750.00.
Frivolous Actions: While an uncharted area of South Carolina Law, the South Carolina Frivolous Civil Proceedings Sanctions Act applies to workers’ compensation proceedings. S.C. Code Ann. §15-36-10.
Occupational Diseases
Occupational Diseases are also compensable, but are under a different set of criteria. The claimant must suffer from (1) a disease, (2) that arises out of and in the course of employment, (3) which is due to hazards in excess of those ordinarily incident to employment, (4) and is peculiar to the occupation in which the claimant was engaged. (5) It must be caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment, as a (6) direct results from the claimant’s continuous exposure to the normal working conditions thereof. S.C. Code Ann. § 42-11-10. Ordinary diseases may be occupational if produced or aggravated by distinctive conditions of employment. The aggravation, acceleration, or lighting up of a pre- existing or latent infirmity or weakened physical condition may constitute a disability of such a character as to come within the meaning of workers’ compensation acts, even though the accident would have caused no injury to a perfectly normal, healthy individual. Ferguson v. State Highway Department 197 S.C. 520, 15 S.E.2d 775 (S.C. 1941).
What is exposure to bad faith?
There is no cause of action for bad faith refusal to pay workers’ compensation in South Carolina. Mack’s Transfer & Storage v. Cook, 355 S.E.2d 861 (Ct. App. 1986). The Court of Appeals held that a worker who sustains injury covered by the Workers’ Compensation Act may not bring separate action in courts for damages if employer and employer’s insurance carrier allegedly act in bad faith in processing and paying his claim. However, if the Commission determines that an employer/carrier has withheld temporary benefits on an admitted claim in violation of S.C. Code Ann. § 42-9-260, then the employer/carrier may be subjected to a penalty of 25% of the amount improperly withheld.
Does the Claimant have to sustain a specific occurance or trauma in order to have a compensable claim?
NO. In Creech v. The Ducane Co. (467 S.E.2d 114, SC Ct. App. 1996) the Court of Appeals ruled that “In determining whether something constitutes “injury by accident” under workers’ compensation law, no slip, fall or other fortuitous event or accident in cause of injury is required; unexpected result or industrial injury is itself considered the compensable accident.” Id. Proof of the “causative event” is not required to establish “injury by accident” under workers’ compensation law. The claimant had previously suffered a back injury and had been compensated. He later re-injured his back, when he bent over to lift an object weighing less than one pound, bringing about this case.
Are there any state requirements for vocational rehab?
NO. The South Carolina Vocational Rehabilitation system is usually free. The Commission has been known to recommend, but not require or order vocational rehabilitation.
ARE THERE ANY PENALTIES AGAINST THE EMPLOYER FOR UNSAFE WORK CONDITIONS?
S.C. Code Ann. §42-9-70, the statutory provision that used to cover this subject, has been repealed and no longer exists. However, the employer may face penalties under OSHA.
Which prosthetic devices are covered and for how long?
S.C. Code §42-15-60 grants lifetime replacement of prosthetic devices. All prosthetic devices which a doctor finds necessary in relation to the work injury are covered.
Is Subrogation available under Workers’ Compensation?
S.C. Code Ann. §42-1-560 provides that an injured employee or his personal representative in the case of death may receive compensation benefits and enforce by “appropriate proceedings” his rights against a third party tortfeasor. The statute also states that “the carrier shall have a lien on the proceeds of any recovery from the third party, whether by judgment, settlement or otherwise South Carolina also recognizes an equitable lien in such matters.
No claim for compensation under this title shall be assignable and all compensation and claims therefore shall be exempt from all claims of creditors and from taxes. S.C. Code Ann. §42-9-360(A).