In 1935, the South Carolina legislature enacted the South Carolina Workers Compensation Act to specify South Carolina Workers compensation rights. This legislation was a compromise between industry and workers, to allow workers protection when injured on the job, without having to show that the employer was in any way negligent. Thus, if a worker is injured by accident, within the course and scope of his employment, he is entitled to certain benefits, the extent of which depends on the nature of the injury, how many body parts are injured, and whether the employee is able to go back to work following the injury, given the combination his educational background, his occupational history, and his restrictions following his injury.
“Disability” and “Medical Impairment” are Different Concept
Two people with the same medical impairment, such as an amputated arm, can have a different level of disability, since one may be able to return to the workplace and be gainfully employed; and another may not. A 53 year old plumber right handed plumber who loses right hand in an accident will face a difficult time finding employment as a plumber, given his restrictions; whereas a 53 year old college professor could still teach….identical medical impairment, but different levels of disability. One can get back to work; the other cannot.
Temporary Total Disability (TTD)
Once a worker has been out of work due to a job related injury for more than fourteen (14) consecutive days, he is entitled to receive from the employer or it’s workers compensation insurance company sixty six and 2/3 (.666) percent of his average weekly wage he was earning within the four quarters of a year prior to the date of his injury. This earnings calculation should be determined based on his earnings from all employment, even though he was injured on only one of his jobs; so if he works one job, is injured, but was moonlighting doing other work, then he is entitled to the average weekly wage for both jobs. However, this can be difficult for some workers to establish an accurate weekly wage when one job is “under the table” money.
Maximum Medical Improvement and Disability Rating
Once a worker reaches “Maximum Medical Improvement” (MMI), the physician will issue a “medical impairment rating.” MMI is determined when a worker will not improve further with additional care. However, the worker may need ongoing treatment such as therapy, medication and other treatment in the future that tends to lessen the period of disability and keeps the medical impairment stable. The Medical Impairment Rating is determined by a book called the American Medical Association Guide to the Evaluation of Permanent Impairment (either 5th or 6th Editions).
If there are multiple body parts injured, more than one physician may be called upon to render medical impairment ratings. For example, one may rate the spinal impairment; and another specialist, a lower or upper extremity. Once this is complete, the worker is evaluated for “return to work status.” This means that the employer is obligated to determine whether the worker is able to return to work for the employer on a full or part time basis, based on the combination of the workers medical impairment, physical restrictions and occupational history.
Often, even with restrictions, the employer is able to re-employ a worker; but other times, the nature of the worker’s pre-injury employment is outside the scope of the worker’s restrictions; and therefore, the worker is not employable by the same employer he worked for when he suffered the injury. However, additional consideration is given to whether there is a reasonably stable market for employment in the community, given the combination of his injury, restrictions, educational background and occupational history. This often requires a vocational assessment to determine the issue of disability.
Scheduled Member Loss, Loss of Earning Capacity and Total Disability
The South Carolina Workers Compensation Act provides five (5) basic ways that a worker is compensated following an on the job injury: (1) Medical bills related to the injury are paid; (2) TTD is paid until the time the worker reaches MMI; (3) if one body part is injured, the Act specifies the number of weeks the worker is paid, in relation to the percentage of disability; (4) a wage earning differential should the worker’s restrictions allow him to work, but for less money post injury; or (5) Permanent and Total Disability.
Benefits of Workers Compensation are Limited
Workers do not have to prove that an employer was negligent; and therefore, the benefits for damages that would be available in an auto accident case or other traditional negligence suit against another party are not available, such as: pain and suffering, loss of enjoyment of life, mental anguish, alteration of lifestyle. These intangible type damages that the court or a jury is able to determine as finders of fact in a traditional negligence suit are not included in the Workers Compensation Act. Also, workers compensation “indemnity” is limited to a specified number of weeks based on a person’s average weekly wage (AWW) and workers compensation rate (.666 percent of AWW), depending on the nature of the injury and disability.
Hire a Competent Workers Compensation Attorney when Seriously Injured
There are many nuances, twists and turns to the Workers Compensation Act that require a competent workers compensation attorney to manage when a worker is seriously injured. Some minor injuries only involve the employer or workers compensation insurance company paying medical bills only, the worker fully recovers and is back to work within a couple of weeks. These cases don’t require attorney assistance. However, in matters involving serious injuries, surgery, time out of work, etc…, it is important to hire a competent workers compensation attorney to manage the case and ensure the worker is receiving the benefits he or she is entitled to. Workers Compensation insurance companies, like other insurance companies, are in the business of making money and minimizing claim payouts. The Workers Compensation Act allows the employer/insurance company to choose your doctors. A competent workers compensation attorney will ensure that a worker is evaluated by independent physicians and vocational experts who will provide reports and testimony regarding a worker’s permanent impairment rating, restrictions and vocational limitations, when the “company doctor” or company paid vocational expert is not looking out for the best interests of the injured worker by minimizing injuries, impairment, restrictions and disability.
