The State, 
published Tuesday, March 1, 2005

Workers’ Comp Rules Already
Stacked Against the Injured

By Ilene Stacey King

I was amazed to read that one reason offered for changing workers’ compensation law in South Carolina is to level the playing field so businesses feel like they are getting a fair shake. The playing field is not level. But it is injured workers, not employers and insurance carriers, who are at a disadvantage in the system.

Workers’ compensation is an exclusive remedy. Injured workers have lost their right to sue for full damages in civil court in exchange for the limited compensation of a no fault workers’ compensation system that is intended to provide expedient relief. The reality often falls short of the mark and the employer and their insurance carrier hold almost all the cards.

An injured worker may find that the employer has failed to report the injury to their carrier or the carrier may deny the claim, causing months of delay in medical treatment as well as extreme financial hardship for the injured worker and their family. There is no expedited relief for these circumstances. While waiting for the insurance carrier to accept the claim or for a hearing to be set, an injured worker may suffer in pain without necessary therapies, surgery or prescription drugs. Unable to work, they may lose their home or car. Telephone service and utilities may get cut off. Child support may go unpaid. Credit ratings suffer. Many marriages suffer and some can not survive this ordeal.

The injured worker must go to the doctors chosen by the employer and the employer’s insurance carrier. All treatment must be approved by the carrier. Unauthorized treatment will not be paid. Sometimes, this means injured workers are subjected to treatment by doctors who believe injured workers are malingerers and who treat them like liars.

If unable to work, the injured worker may receive only 2/3 of their average weekly earnings. Within the first 150 days after an injury is reported, the insurance carrier may unilaterally terminate benefits without a hearing. In that case, a hearing must be held within sixty days, but that is a long time for an injured worker and their family, often living from paycheck to paycheck, to have to try to make ends meet. One missed paycheck may set off a chain reaction of disaster.

Injured workers are entitled to a hearing within 60 days only in limited circumstances where benefits have been terminated. Otherwise, hearings requested by injured workers may take 5 - 7 months or more to be set. Not long ago, in some parts of the state, hearing dates were taking close to a year. When the Workers’ Compensation Commission was properly and fully funded, hearing dates took about 3 months. Employers and carriers, on the other hand, are always entitled to a hearing within 60 days.

Awards are limited by law and based on the body part injured. A worker with an injury to only one body part, generally, is limited to compensation for only that body part, even if unable to ever work again. Permanent and total disability is capped at 500 weeks of compensation, regardless of the lifetime consequences. Only brain injuries, pari- and quadri-plegia qualify for lifetime benefits.
There is no compensation for pain and suffering, loss of enjoyment or quality of life. Workers’ compensation is primarily concerned with wage loss. There is no additional payment if you will never play golf, bowl, play ball with your children, mow your lawn, make love, garden, dance, hunt, fish, play the piano, or walk on the beach, ever again.

This is the system some say needs to be changed so employers will feel like they are getting a fair shake. The proposed changes to supposedly level the playing field, in reality, will only further disadvantage injured workers who have already given up so much. For example, the proposal to impose a fault system on workers to deny benefits without a corresponding provision to increase benefits when the employer is at fault is simply not fair. Moreover, it is counter to the original intentions of the Act, whereby workers gave up the right to civil fault based suits with greater damage recoveries in exchange for no fault, limited, expedient compensation.
South Carolina has one of the nation’s least expensive workers’ compensation systems. Fully funding the South Carolina Workers’ Compensation Commission, as opposed to the proposal to do away with it, would go a long way toward improving the functioning of the entire system.

The State, 
published Thursday, March 2, 1995

Lawmakers urged to protect rights
of injured workers

By Ilene Stacey King

Injured workers are often shocked to discover the limited nature of the benefits and remedies provided by the S.C. Workers' Compensation system. Yet, year after year, concerted "reform" efforts are undertaken by the S.C. Chamber of Commerce, employers, insurance companies and some state legislators to further reduce benefits.

A disabled worker receives only two-thirds of his or her average weekly wage, or less if two-thirds exceeds the maximum weekly compensation rate. Benefits are also limited based on the body part injured. For example, a worker whose hand is severed in an on-the-job accident, after recovering from the injury, is limited to 185 weeks of compensation at that worker's weekly compensation rate. A worker who is permanently and totally disabled by an on-the-job injury can receive only 500 weeks of compensation -- less than 10 years. Thus, a totally disabled employee earning $5 an hour can receive no more than $66,665 in benefits. For a 25-year old, that averages out to about $1,600 per year to age 65. At the maximum compensation rate, a totally disabled worker can receive no more than $211,240 in disability benefits. For a 30-year old, that averages out to about $6000 per year to age 65. Lifetime compensation is available only for paraplegia, quadriplegia or physical brain damage.

These limited benefits provide a tremendous benefit to employers. Workers' compensation is, generally, an injured worker's only remedy against an employer. Employers in South Carolina are not subject to civil suits by their employees unless they act with the narrowly defined deliberate intention to injure the employee. Even if the employer is grossly negligent or blatantly violates health and safety laws that result in severe injury or even death of the employee, the employer cannot be sued in civil court. The employee can recover only workers' compensation benefits, which not only fail to compensate for full economic loss, but also do not compensate for pain and suffering, loss of enjoyment of life or other noneconomic losses that would be recoverable in a civil lawsuit. Employers who are chronically unsafe or engage in grossly unsafe employment practices are shielded from full civil liability to the workers they injure.

Reducing workplace injuries is the only certain way to reduce workers' compensation costs. However, the "reform" seekers do not focus on safety. For the past several years, they have argued that the benefits paid to injured workers are responsible for higher workers' compensation premiums in South Carolina. This is not true. Rising health-care costs account for the majority of the cost increases in workers' compensation. Moreover, South Carolina is one of the least expensive states in the nation for workers' compensation premiums. Recent reports rank South Carolina as the second lowest. A huge rate increase "crisis" predicted several years ago never materialized. There were no major across-the-board increases in 1993 and 1994. In fact, decreased losses have this year prompted the National Council on Compensation Insurance to seek a $26 million rate reduction.

Attempts to strengthen workers' compensation laws for injured workers are routinely defeated by the efforts of the Chamber of Commerce and the insurance lobby. "Choice of doctor" legislation, which would allow workers to choose their own doctor, is persistently opposed, ironically by many of the same groups that opposed the Clinton health plan because, they maintained, it would deprive patients of a choice of physician. Legislation which would have eliminated the ability of employers to "opt out" of the workers' compensation system was defeated last year. South Carolina is one of only two states which allows employers to refuse to come under the workers' compensation system. Employers who "opt out" may provide no coverage for job injuries or coverage which is substantially inferior to the benefits provided by the Workers' Compensation Act.

This year, the "reform" forces are again pushing legislation aimed at reducing injured workers' benefits. One bill would allow employers to stop paying weekly compensation without a hearing. The "opt out" issue is bound to resurface. Working people urgently need to become informed and involved and demand that their elected representatives take a firm stand for workplace safety and against legislation that erodes the rights of injured workers.

Ms. King is head of the workers' compensation department at Turnipseed & Associates. She is on the executive committee of the Association of South Carolina Claimant Attorneys for Workers Compensation.

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