Download This Version in Microsoft Word format
TO AMEND SECTION 38-55-530, CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO CLARIFY THAT "FALSE STATEMENT AND MISREPRESENTATION" INCLUDES A FALSE BUSINESS ACTIVITY REPORT, MISCOUNT OR MISCLASSIFICATION BY AN EMPLOYER OR EMPLOYEE, OR A FALSE CLAIM MADE BY AN EMPLOYEE TO OBTAIN AN ECONOMIC BENEFIT; TO AMEND SECTION 38-55-540, RELATING TO PENALTIES FOR A FALSE STATEMENT AND MISREPRESENTATION, SO AS TO INCREASE PENALTIES AND CREATE ADDITIONAL CATEGORIES; TO AMEND SECTION 38-55-560 BY ADDING SUBPARAGRAPH (E) AUTHORIZING THE ATTORNEY GENERAL TO HIRE A FORENSIC ACCOUNTANT TO BE ASSIGNED TO THE INSURANCE FRAUD DIVISION; TO AMEND SECTION 42-1-160, WHICH DEFINES "INJURY" AND "PERSONAL INJURY", SO AS TO ESTABLISH THE EMPLOYEE'S BURDEN OF PROOF AND FURTHER EXCLUDE CERTAIN CONDITIONS FROM "PERSONAL INJURY" AND EXCLUDE CERTAIN EVENTS FROM "ACCIDENT"; TO ADD SECTION 42-1-172, RELATING TO A REPETITIVE TRAUMA INJURY, SO AS TO ESTABLISH WHEN A REPETITIVE TRAUMA INJURY MAY BE COMPENSABLE; TO AMEND SECTION 42-1-375 SO AS TO EXEMPT AN OWNER-OPERATOR OF A VEHICLE LEASED TO A MOTOR CARRIER WHO HAS SIGNED AN INDEPENDENT CONTRACTOR AGREEMENT WITH A MOTOR CARRIER; TO AMEND SECTION 42-9-30 SO AS TO LIMIT THE DISABILITY AWARD TO TEN PERCENT GREATER THAN THE MEDICAL IMPAIRMENT RATING UNLESS THE COMMISSIONER FINDS EXTRAORDINARY CIRCUMSTANCES AND LISTS FACTORS TO BE CONSIDERED FOR EXTRAORDINARY CIRCUMSTANCES AND TO PRESUME FIFTY PERCENT OR MORE LOSS OF USE OF THE BACK IS TOTAL AND PERMANENT DISABILITY; TO AMEND SECTION 42-11-10, RELATING TO OCCUPATIONAL DISEASE, SO AS TO ESTABLISH EMPLOYEE'S BURDEN OF PROOF, EXCLUDE CERTAIN TYPES OF CONDITIONS, AND PROVIDE THAT COMPENSATION IS NOT PAYABLE UNLESS CLAIMANT SUFFERS PERMANENT OR PARTIAL DISABILITY; TO AMEND SECTION 42-15-20, RELATING TO NOTICE FOR A REPETITIVE TRAUMA INJURY, SO AS TO REQUIRE NOTICE BE GIVEN NO LATER THAN NINETY DAYS AFTER EMPLOYEE COULD HAVE DISCOVERED THAT THE CONDITION IS COMPENSABLE; TO AMEND SECTION 42-15-40 SO AS TO BAR THE RIGHT TO COMPENSATION FOR A REPETITIVE TRAUMA INJURY UNLESS THE CLAIM IS FILED WITHIN TWO YEARS AFTER THE DEATH, DISABILITY, OR LAST DATE OF EMPLOYMENT; TO AMEND SECTION 42-15-60, RELATING TO EMPLOYER RESPONSIBILITY, SO AS TO ESTABLISH THAT AFTER TEN WEEKS AFTER DATE OF EMPLOYEE'S INJURY, EMPLOYEE MUST ESTABLISH BY MEDICAL RECORDS OR EXPERT MEDICAL TESTIMONY THAT ADDITIONAL TIME IS NEEDED TO LESSEN THE EMPLOYEE'S DEGREE OF IMPAIRMENT AND TO CLARIFY THAT AN EMPLOYER'S DUTY TO EMPLOYEE TERMINATES WHEN THERE IS NO FURTHER MEDICAL CARE THAT WOULD LESSEN THE DEGREE OF MEDICAL IMPAIRMENT AND IN NO CASE WOULD MEDICAL BENEFITS EXTEND FOR MORE THAN FIVE HUNDRED WEEKS AFTER THE DATE OF INJURY, EXCEPT IN CASES INVOLVING PARAPLEGIA, QUADRIPLEGIA AND PHYSICAL BRAIN DAMAGE; TO AMEND SECTION 42-15-95, RELATING TO THE RELEASE OF MEDICAL INFORMATION IN WORKERS' COMPENSATION CLAIMS, SO AS TO PROVIDE THAT AN EMPLOYEE SEEKING TREATMENT IS CONSIDERED TO HAVE GIVEN CONSENT FOR RELEASE OF MEDICAL RECORDS AND TO PROVIDE COMMUNICATION OPTIONS AMONG INTERESTED PARTIES; TO AMEND SECTION 42-17-90 SO AS TO ESTABLISH A ONE-YEAR PERIOD FOR CHANGE OF CONDITION IN CASES INVOLVING REPETITIVE TRAUMA OR OCCUPATIONAL DISEASE; TO AMEND SECTION 38-73-495 SO AS TO ACCOUNT FOR THIRD-PARTY REIMBURSEMENTS IN EXPERIENCE MODIFICATION; TO AMEND SECTION 42-7-310 SO AS TO REDUCE THE SECOND INJURY FUND ASSESSMENT FORMULA TO ONE HUNDRED AND THIRTY-FIVE PERCENT AND TO REQUIRE THE SECOND INJURY FUND DIRECTOR TO ANNUALLY SUBMIT INFORMATION TO THE NATIONAL COUNCIL ON COMPENSATION INSURANCE; TO AMEND SECTION 42-9-400, RELATING TO THE SECOND INJURY FUND, SO AS TO ELIMINATE "COMBINED EFFECTS OF PREEXISTING IMPAIRMENT AND SUBSEQUENT INJURY", TO FURTHER INCREASE THE NUMBER OF WEEKS TO ONE HUNDRED AND FOUR, TO INCREASE THE THRESHOLD FOR REIMBURSEMENT FOR MEDICAL PAYMENT FROM THREE THOUSAND DOLLARS TO TEN THOUSAND DOLLARS, TO ELIMINATE "ARTHRITIS" AND "ANY OTHER PRE-EXISTING DISEASE, CONDITION OR IMPAIRMENT" FROM THE LIST OF PRESUMPTIONS FOR PERMANENT IMPAIRMENT, AND TO PROVIDE NOTICE PROVISIONS; TO AMEND SECTION 42-9-410 SO AS TO INCREASE THE NUMBER OF WEEKS TO ONE HUNDRED AND FOUR FOR SECOND INJURY FUND REIMBURSEMENT ELIGIBILITY; AND TO AMEND CHAPTER 73, TITLE 38.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 38-55-530(D) of the 1976 Code is amended to read:
"(D) 'False statement and misrepresentation' means a statement or representation made by a person or an insurer that is false, material, made with the person's knowledge of the falsity of the statement, and made with the intent of obtaining or causing another to obtain or attempting to obtain or causing another to obtain an undeserved economic advantage or benefit or made with the intent to deny or cause another to deny any benefit or payment in connection with an insurance transaction and such shall constitute fraud. 'False statement and misrepresentation' specifically includes, but is not limited to, an intentional:
(1) false report of business activities;
(2) miscount or misclassification by an employer of its employees; or
(3) false claim made by an employee that is made to obtain an economic benefit.
An economic benefit includes, but is not limited to, a favorable insurance premium, payment schedule, or insurance award."
SECTION 2. Section 38-55-540 of the 1976 Code is amended to read:
"Section 38-55-540. (A) Any A person or an insurer who makes a false statement or misrepresentation, and any other person knowingly, with an intent to injure, defraud, or deceive, or who assists, abets, solicits, or conspires with such a person or an insurer to make a false statement or misrepresentation, is guilty of a:
(1) misdemeanor, for a first offense violation, if the amount of the economic advantage or benefit received is less than one thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed less than one hundred nor more than five hundred dollars or by imprisonment imprisoned not to exceed more than thirty days;
(2) misdemeanor, for a first offense violation, if the amount of the economic advantage or benefit received is one thousand dollars or more but less than ten thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed less than two thousand nor more than fifty ten thousand dollars or by imprisonment for a term imprisoned not to exceed more than three years, or by both, such fine and imprisonment and must pay the amount of restitution and tax owed;
(3) felony, for a first offense violation, if the amount of the economic advantage or benefit received is ten thousand dollars or more but less than fifty thousand dollars. Upon conviction, the person must be fined not less than ten thousand nor more than fifty thousand dollars or imprisoned not more than five years, or both, and must pay the amount of restitution and tax owed;
(4) felony, for a first offense violation, if the amount of the economic advantage or benefit received is fifty thousand dollars or more. Upon conviction, the person must be fined not less than twenty thousand nor more than one hundred thousand dollars or imprisoned not more than ten years, or both, and must pay the amount of restitution and tax owed;
(3)(5) felony, for a second or subsequent violation, regardless of the amount of the economic advantage or benefit received. Upon conviction, the person must be punished by a fine fined not to exceed less than ten thousand nor more than fifty thousand dollars or by imprisonment for a term imprisoned not to exceed more than ten years, or by both, such fine and imprisonment and must pay the amount of restitution and tax owed.
(B) Any A person or an insurer convicted under pursuant to the provisions of this section must be ordered to make full restitution to the a victim or victims for any economic advantage or benefit which has been obtained by the person or insurer as a result of that violation."
SECTION 3. Section 38-55-560 of the 1976 Code is amended by adding the following lettered subsection at the end to read:
"(E) The Attorney General is authorized to hire, employ, and reasonably equip one forensic accountant, and this forensic accountant must be assigned to the Insurance Fraud Division of the Attorney General's Office. A person is not qualified to be hired and the Insurance Fraud Division may not hire a forensic accountant unless he possesses and maintains a current license to engage in the practice of accounting pursuant to the provisions of Chapter 2, Title 40."
SECTION 4. Section 42-1-160 of the 1976 Code is amended to read:
Section 42-1-160. (A) 'Injury' and 'personal injury' shall mean means only injury by accident arising out of and in the course of the employment and shall not include a disease in any form, except when it results naturally and unavoidably from the accident and except such diseases as are compensable under the provisions of Chapter 11 of this title. An employee must establish that the injury arose out of his employment with medical evidence stated to a reasonable degree of medical certainty. In construing this section, an accident arising out of and in the course of employment shall include includes employment of an employee of a municipality outside the corporate limits of the municipality when the employment was ordered by a duly authorized employee of the municipality.
(B) Stress, mental injuries, heart attacks, strokes, embolisms, or aneurisms arising out of and in the course of employment unaccompanied by other physical injury and resulting in mental illness or injury is not considered a personal injury unless it is established to a reasonable degree of medical certainty that the stressful employment conditions causing the mental injury stress, mental injury, heart attack, stroke, embolism, or aneurism were extraordinary and unusual in comparison to the normal conditions of the particular employment.
(C) Stress, mental injuries, heart attacks, strokes, embolisms, or aneurisms arising out of and in the course of employment unaccompanied by physical injury is are not considered compensable if it results from 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.
(D) In medically complex cases outside the common knowledge or common purview of the commission or any member thereof, an employee must establish by expert medical testimony within a reasonable degree of medical certainty that the injury arose out of and in the course of employment. For purposes of this subsection, 'medically complex cases' mean sophisticated cases requiring surgical intervention or other highly scientific techniques for diagnosis or treatment.
(E) The word 'accident' as used in this title must not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously, or at frequent intervals in the course of such employment, over extended periods of time. Any injury or disease attributable to such causes must be compensable only if culminating in a compensable repetitive trauma injury pursuant to Section 42-1-172 or an occupational disease pursuant to the provisions of Chapter 11 of this title."
SECTION 5. The 1976 Code is amended by adding:
"Section 42-1-172. (A) 'Repetitive trauma injury' means an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events. Compensability of such repetitive trauma injuries shall only be determined under the provisions of this statute.
(B) A 'repetitive trauma injury' shall only be compensable when it:
(1) arises out of and in the course of employment;
(2) results directly and naturally from exposure in this State to hazards peculiar to the particular trade, process, occupation, or employment in excess of those ordinarily incident to employment; and
(3) is peculiar to the occupation in which the employee is engaged.
(C) A 'repetitive trauma injury' shall be deemed to arise out of employment only if it is reasonably apparent upon consideration of all the circumstances that:
(1) there is a direct causal relationship between the condition under which the work is performed and the injury. Such causal relationship must be supported by expert testimony and proven to a reasonable degree of medical certainty; and
(2) the injury is not an ordinary condition of life to which the general public is equally exposed. No injury shall be deemed a compensable repetitive trauma injury when it is a:
(a) condition of the neck, back, or spinal column; or
(b) chronic disease of the skeletal joints.
(D) Upon reaching maximum medical improvement, if the employee returns to work with the employer in whose employ such repetitive trauma injury was suffered, the employee shall only be entitled to benefits under Section 42-9-20 but not under Section 42-9-30. Upon reaching maximum medical improvement, if the employee does not return to work with the employer in whose employ such repetitive trauma injury was suffered, the employee shall be entitled to benefits under either Section 42-9-20 or Section 42-9-30, but not both. Medical benefits for compensable repetitive trauma injuries shall be as provided elsewhere in this title."
SECTION 6. Section 42-1-375 of the 1976 Code is amended to read:
"Section 42-1-375. This title does not apply to:
(1) a licensed real estate sales persons person engaged in the sale, leasing, or rental of real estate for a licensed real estate broker on a straight commission basis over whom the broker has no control and who has signed an independent contractor agreement with the broker; or
(2) an owner-operator of a vehicle leased to a motor carrier who has signed an independent contractor agreement with a motor carrier."
SECTION 7. Section 42-9-30 of the 1976 Code is amended to read:
"Section 42-9-30. (A) In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein, to wit as follows:
(1) for the loss of a thumb, sixty-six and two-thirds percent of the average weekly wages during sixty-five weeks;
(2) for the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of the average weekly wages during forty weeks;
(3) for the loss of a second finger, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(4) for the loss of a third finger, sixty-six and two-thirds percent of the average weekly wages during twenty-five weeks;
(5) for the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of the average weekly wages during twenty weeks;
(6) the loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger and the compensation shall be for one half of the periods of time above specified;
(7) the loss of more than one phalange shall be considered the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;
(8) for the loss of a great toe, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;
(9) for the loss of one of the toes other than a great toe, sixty-six and two-thirds percent of the average weekly wages during ten weeks;
(10) the loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe and the compensation shall be for one half the periods of time above specified;
(11) the loss of more than one phalange shall be considered as the loss of the entire toe;
(12) for the loss of a hand, sixty-six and two-thirds percent of the average weekly wages during one hundred and eighty-five weeks;
(13) for the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;
(14) for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(15) for the loss of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;
(16) for the loss of an eye, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(17) for the complete loss of hearing in one ear, sixty-six and two-thirds percent of the average weekly wages during eighty weeks; and for the complete loss of hearing in both ears, sixty-six and two-thirds percent of the average weekly wages during one hundred sixty-five weeks, and the commission shall by regulation provide for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards.
(18) total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye. The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of the payments herein provided for total loss as such partial loss bears to total loss.;
(19) for the total loss of use of the back, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks. The compensation for partial loss of use of the back shall be such proportions of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is fifty percent or more loss of use of the back, in which event the injured employee shall be deemed presumed to have suffered total and permanent disability and compensated therefor under paragraph two of Section 42-9-10.;
(20) for the total or partial loss of, or loss of use of, a member, organ or part of the body not covered herein and not covered under Sections 42-9-10 or 42-9-20, sixty-six and two thirds of the average weekly wages not to exceed five hundred weeks. The commission shall may by regulations prescribe the ratio which the partial loss or loss or partial loss of use of a particular member, organ or body part bears to the whole man, basing such ratios on accepted medical standards the medical impairment rating pursuant to the American Medical Association's 'Guide to the Evaluation of Permanent Impairment' or other accepted medical treatise or authority and such ratios shall determine the benefits payable under this subsection, subject to the limitations in subsection (B) of this section.;
(21) proper and equitable benefits shall be paid for serious permanent disfigurement of the face, head, neck or other area normally exposed in employment, not to exceed fifty weeks. Where benefits are paid or payable for injury to or loss of a particular member or organ under other provisions of this title no additional benefits shall be paid under this paragraph, except that disfigurement shall also include compensation for serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation.
The weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in Section 42-9-10.
(B) A determination of disability must be based, in part, upon the medical impairment rating pursuant to the American Medical Association's 'Guide to the Evaluation of Permanent Impairment' or other accepted medical treatise or authority. The disability award cannot be in excess of ten percent greater than the impairment rating except in extraordinary circumstances. To determine the existence of extraordinary circumstances, the commissioner must consider the employee's:
(1) age;
(2) education;
(3) work history;
(4) employment skills;
(5) job training;
(6) physical capacity; and
(7) vocational evaluation. If an employee does not receive a vocational evaluation pursuant to Section 42-3-80 or is dissatisfied with the evaluation received, he may at his expense, receive an independent evaluation. If a finding of extraordinary circumstances is established, the commission may order the employer to reimburse the employee for the evaluation cost.
If a commissioner determines that extraordinary circumstances exist, the commissioner must make specific written findings regarding each factor to justify the increased award."
SECTION 8. Section 42-11-10 of the 1976 Code is amended to read:
"Section 42-11-10. (A) The words 'occupational disease' mean a disease arising out of and in the course of employment which is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of continuous exposure to the normal working conditions thereof.
(B) An employee must establish that the occupational disease arose directly and naturally from exposure in this State to hazards peculiar to the particular employment with a reasonable degree of medical certainty.
(C) No disease shall be deemed an occupational disease when it:
(1) It does not result directly and naturally from exposure in this State to the hazards peculiar to the particular employment;
(2) It results from exposure to outside climatic conditions;
(3) It is a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside of his employment;
(4) It is one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and a natural incident of an occupational disease or unless there is a constant exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation;
(5) It is any disease of the cardiac, pulmonary, or circulatory system not resulting directly from abnormal external gaseous pressure exerted upon the body or the natural entrance into the body through the skin or natural orifices thereof of foreign organic or inorganic matter under circumstances peculiar to the employment and the processes utilized therein; or
(6) It is any chronic disease of the skeletal joints, including, but not limited to, arthritis, degenerative disc disease, facet arthropathy, stenosis, spondylitis, spondylolisthesis, bursitis, tendonitis, epicondylitis, or tenosynovitis; or
(7) is any condition of the neck, back, or spinal column.
(D) No compensation shall be payable for any occupational disease unless the employee suffers disability as described in Section 42-9-10 or Section 42-9-20. Disability resulting from an occupational disease shall not be compensable under Section 42-9-30."
SECTION 9. Section 42-15-20 of the 1976 Code is amended to read:
"Section 42-15-20. Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident and the employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative, had knowledge of the accident or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud of deceit of some third person. No compensation shall be payable unless such notice is given within ninety days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the commission for not giving such notice and the commission is satisfied that the employer has not been prejudiced thereby. Neither compensation nor medical benefits shall be payable to or on behalf of an employee suffering a compensable 'repetitive trauma injury' unless notice shall be given by such employee within ninety days of the date the employee could discover, by exercising reasonable diligence, that the condition is compensable. It shall not be a requirement that the employee become disabled, either totally or in part, before the notice period begins to run."
SECTION 10. Section 42-15-40 of the 1976 Code is amended to read:
"Section 42-15-40. The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident, or if death resulted from the accident, within two years of the date of death. However, for occupational disease claims the two-year period does not begin to run until the employee concerned has been diagnosed definitively as having an occupational disease and has been notified of the diagnosis. For the death or injury of a member of the South Carolina National Guard, as provided for in Section 42-7-67, whichever is later. The filing required by this section may be made by registered mail, and the registry within the time periods set forth in this section constitutes timely filing. For a 'repetitive trauma injury' as defined in Section 42-1-172, the right to compensation is barred unless a claim is filed with the commission within two years after the death or disability resulting from such a 'repetitive trauma injury'. Claims based on repetitive trauma injuries are forever barred if not brought within two years of the employee's last date of employment. This prohibition applies regardless of whether the employee was aware that his repetitive trauma injury was the result of his employment."
SECTION 11. Section 42-15-60 of the 1976 Code is amended to read:
"Section 42-15-60. (A) Medical The employer must provide medical, surgical, hospital and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from the date of an injury, to effect a cure or give relief, and for such additional time as that in the judgment of the commission, as established by the employee's medical records, or, in medically complex cases, as established by expert medical testimony within a reasonable degree of medical certainty, will tend to lessen the period of disability degree of permanent impairment and, in addition thereto, such original artificial members as may be reasonably necessary at the end of the healing period shall be provided by the employer. In case of a controversy arising between employer and employee, the commission may order such further medical, surgical, hospital or other treatment as may in the discretion of the commission be necessary. During the whole or any part of the remainder of disability resulting from the injury the employer may, at his own option, continue to furnish or cause to be furnished, free of charge to the employee, and the employee shall accept an attending physician and any medical care or treatment that may be deemed necessary by such attending physician, unless otherwise ordered by the commission for good cause shown and, in addition, such surgical and hospital service and supplies as may be deemed necessary by such attending physician or the Commission.
(B) The refusal of an employee to accept any medical, hospital, surgical or other treatment or evaluation, when provided by the employer or ordered by the commission, shall bar such employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension refusal unless in the opinion of the commission the circumstances justified the refusal, in which case the commission may order a change in the medical or hospital service. If in an emergency on account of the employer's failure to provide the medical care as specified in this section a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer, if so ordered by the commission.
(C) The employer's obligation to provide medical care or treatment, including medication, shall end upon a finding by the commission that there is no further medical care or treatment that would tend to lessen the degree of permanent medical impairment. However, in no case shall an award of medical benefits extend for more than five hundred weeks after the date of the injury, except in cases of paraplegia, quadriplegia and physical brain damage. In cases in which total and permanent disability results of paraplegia, quadriplegia or physical brain damage, reasonable and necessary nursing services, medicines, prosthetic devices, sick travel, medical, hospital and other treatment or care causally related to the paraplegia, quadriplegia and physical brain damage, shall be paid during the life of the injured employee, without regard to any limitation in this title including the maximum compensation limit. In addition, in cases of partial permanent disability, prosthetic devices shall be also furnished during the life of the injured employee or so long as they are necessary."
SECTION 12. Section 42-15-95 of the 1976 Code is amended to read:
"Section 42-15-95. (A) Any employee who seeks treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title shall be considered to have given his consent for the release of medical records relating to such examination or treatment under any applicable law or regulation. All existing information compiled by a health care facility, as defined in Section 44-7-130, or a health care provider licensed pursuant to Title 40 pertaining directly to a workers' compensation claim must be provided to the insurance carrier, the employer, the employee, their respective attorneys or certified rehabilitation professionals, or the South Carolina Workers' Compensation Commission, within fourteen days after receipt of written request. A health care facility and a health care provider may charge a fee for the search and duplication of a medical record, but the fee may not exceed sixty-five cents per page for the first thirty pages and fifty cents per page for all other pages, and a clerical fee for searching and handling not to exceed fifteen dollars per request plus actual postage and applicable sales tax. The facility or provider may charge a patient or the patient's representative no more than the actual cost of reproduction of an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead costs associated with the duplication. If a treatment facility, or physician, surgeon, or other health care provider fails to send the requested information within forty-five thirty days after receipt of the request, the person or entity making the request may apply to the commission for an appropriate penalty payable to the commission, not to exceed two hundred dollars.
(B) The insurance carrier, employer, employee, their respective attorneys, certified rehabilitation professionals, or the commission may submit a written request to the physician, surgeon, or other health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title for a written response to the following questions, or completion of a form promulgated by the commission, within fourteen days after the written request:
(1) What is the employee's injury, disease, or condition for which treatment is being rendered?
(2) What is the diagnosis of the employee's injury, disease, or condition?
(3) Did the employee's employment cause, aggravate, accelerate, exacerbate, or contribute to the injury, disease, or condition for which treatment is being rendered?
(4) What treatment has been rendered?
(5) Did the employee have any pre-existing injury, disease, or condition that was aggravated, accelerated, or exacerbated by the employee's employment?
(6) What treatment do you recommend?
(7) What is the employee's temporary work status and/or work restrictions?
(8) If at maximum medical improvement, the date maximum medical improvement achieved and what degree permanent impairment sustained?
(9) If at maximum medical improvement, what medical treatment is necessary to provide relief, maintain work status, or level of function?
(10) If at maximum medical improvement, what is the employee's permanent work status, employment disability, or permanent work restrictions?
The employee must be provided with a copy of the written questions and the response by the physician, surgeon, or other health care provider. If the employee is represented, he is responsible for providing a copy to his attorney. A reasonable fee for answering the questions may be charged, in accordance with the established practice of the physician, surgeon, or other health care provider, to be paid by the party requesting the responses.
(C) A physician, surgeon, or other health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought under the provision of this title may discuss or communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the insurance carrier, employer, their respective attorneys or certified rehabilitation professionals, or the commission without the employee's consent. The employee must be:
(1) notified in a timely fashion, in writing or orally, of the discussion or communication. This notification may occur prior to the actual discussion or communication if the physician, surgeon, or other health care provider knows the discussion or communication will occur in the near future;
(2) advised of the nature of the discussion or communication; and
(3) provided access to any medical documents or other information to be shown or disclosed to or by the physician, surgeon, other health care provider during the discussion or communication.
Any discussion or communication must not conflict with or interfere with the employee's examination or treatment.
A reasonable fee for any discussion or communication may be charged in accordance with the established practice of the physician, surgeon, or other health care provider, to be paid by the party requesting the discussion or communication.
Any discussions, communications, medical reports, or opinions obtained in accordance with this section will not constitute a breach of the physician's duty of confidentiality.
(D) Any discussions, communications, medical reports, or opinions obtained in bad faith and in violation of this section must be excluded from any proceedings under the provisions of this title."
SECTION 13. Section 42-17-90 of the 1976 Code is amended to read:
"Section 42-17-90. (A) Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may review any award and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the order changing the award. No such review shall affect such award as regards any moneys paid and no such review shall be made after twelve months one year from the date of the last payment of compensation pursuant to an award under this title.
(B) A motion or application for change in condition involving a repetitive trauma injury must be made within one year from the date of the last compensation payment for the repetitive trauma injury. Any filing not made within this one-year period shall be deemed untimely and shall not be reviewed.
(C) A motion or application for change in condition involving an occupational disease must be made within one year from the date of the last compensation payment for the occupational disease. Any filing not made within this one-year period shall be deemed untimely and shall not be reviewed."
SECTION 1. Section 38-73-495 of the 1976 Code is amended to read:
"Section 38-73-495. The director or his designee may:
(1) disapprove a previously approved rate for any classification for workers' compensation insurance upon a finding that the rate for that classification is excessive, inadequate, or unfairly discriminatory;
(2) require the division of a particular classification into separate classifications, or the joining of separate classifications into one classification, upon a finding that such action is in the public interest;
(3) direct that a particular risk be classified in a particular classification upon a finding that a risk is classified incorrectly;
(4) disapprove an experience modification rate for workers' compensation insurance upon a finding that the rate is excessive, inadequate, or unfairly discriminatory. This includes an experience modification rate that fails to account for third party reimbursements, including the Second Injury Fund.
Appeals to the department must be filed within one year of policy expiration date or cancellation date, whichever comes first."
SECTION 2. Section 42-7-310(d)(2) of the 1976 Code is amended to read:
"(2) equitable assessments upon each carrier which, as used in this section, includes all insurance carriers, self-insurers, and the State Accident Fund. Each carrier shall make payments to the fund in an amount equal to that proportion of one hundred seventy-five percent one hundred thirty-five percent of the total disbursement made from the fund during the preceding fiscal year less the amount of net assets in the fund as of June thirtieth of the preceding fiscal year which the normalized premium of each carrier bore to the normalized premium of all carriers during the preceding calendar year. Each insurance carrier, self-insurer, and the State Accident Fund shall make payment based upon workers 'compensation normalized premiums during the preceding calendar year. The charge to each insurance carrier is a charge based upon normalized premiums. An employer who has ceased to be a self-insurer shall continue to be liable for any assessments into the fund on account of any benefits paid by him during such calendar year. Any assessment levied or established in accordance with this section constitutes a personal debt of every employer or insurance carrier so assessed and is due and payable to the Second Injury Fund when payment is called for by the fund. In the event of failure to pay any assessment upon the date determined by the fund, the employer or insurance carrier may immediately be assessed a penalty in an amount not exceeding ten percent of the unpaid assessment. If the employer or insurance carrier fails to pay the assessment and penalty, they shall be barred from any recovery from the fund on all claims without exception until the assessment and penalty are paid in full. The director may file a complaint for collection against the employer or insurance carrier in a court of competent jurisdiction for the assessment, penalty, and interest at the legal rate, and the employer/carrier is responsible for attorney's fees and costs. The penalty and interest under this subsection are payable to the Second Injury Fund. At the time of the filing of the complaint, the fund shall also notify the South Carolina Department of Insurance and the South Carolina Workers' Compensation Commission, and these government agencies shall take the appropriate legal and administrative action immediately."
SECTION 3. Section 42-7-310 of the 1976 Code is amended by adding the following new lettered subsection at the end to read:
"(f) The director must annually submit to the National Council on Compensation Insurance information regarding Second Injury Fund reimbursements and closed claims."
SECTION 4. Section 42-9-400 of the 1976 Code is amended to read:
"Section 42-9-400. (a) If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the caused by aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and medical benefits provided by this title; but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund as created by Section 42-7-310 for compensation and medical benefits in the following manner:
(1) reimbursement of all compensation benefit payments payable subsequent to those payable for the first seventy-eight one hundred and four weeks following the injury.;
(2) reimbursement of fifty percent of medical payments in excess of three ten thousand dollars during the first seventy-eight one hundred and four weeks following the injury and then reimbursement of all medical benefit payments payable subsequent to the first seventy-eight one hundred and four weeks following the injury; provided, however, in order to obtain reimbursement for medical expense during the first seventy-eight one hundred and four weeks following the subsequent injury, an employer or carrier must establish that his liability for medical payments is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone.
(b) If the subsequent injury of such an employee shall result in the death of the employee, and it shall be determined that the death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall in the first instance pay the compensation prescribed by this title; but he or his insurance carrier shall be reimbursed from the Second Injury Fund created by Section 42-7-310, for all compensation payable in excess of seventy-eight one hundred and four weeks.
(c) In order to qualify under this section for reimbursement from the Second Injury Fund, the employer must establish when claim is made for reimbursement thereunder, that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge. However, the employer may qualify for reimbursement hereunder upon proof that he did not have prior knowledge of the employee's preexisting physical impairment because the existence of the condition was concealed by the employee.
(d) As used in this section, 'permanent physical impairment' means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.
When an employer establishes his prior knowledge of the permanent impairment, then there shall be a presumption that the condition is permanent and that a hindrance or obstacle to employment or reemployment exists when the condition is one of the following impairments:
(1) Epilepsy;
(2) Diabetes;
(3) Cardiac disease;
(4) Arthritis
(5)(4) Amputated foot, leg, arm or hand;
(6)(5) Loss of sight of one or both eyes or partial loss of uncorrected vision of more than seventy-five percent bilateral;
(7)(6) Residual disability from Poliomyelitis;
(8)(7) Cerebral palsy;
(9)(8) Multiple sclerosis;
(10)(9) Parkinson's disease;
(11)(10) Cerebral vascular accident;
(12)(11) Tuberculosis;
(13)(12) Silicosis;
(14)(13) Psychoneurotic disability following treatment in a recognized medical or mental institution;
(15)(14) Hemophilia;
(16)(15) Chronic ostemyelitis;
(17)(16) Ankylosis of joints;
(18)(17) Hyperinsulinism;
(19)(18) Muscular dystrophy;
(20)(19) Arteriosclerosis;
(21)(20) Thrombophlebitis;
(22)(21) Varicose Veins;
(23)(22) Heavy metal poisoning;
(24)(23) Ionizing radiation injury;
(25)(24) Compressed air sequelae;
(26)(25) Ruptured intervertebral disc;
(27)(26) Hodgkins disease;
(28)(27) Brain damage;
(29)(28) Deafness;
(30)(29) Cancer;
(31)(30) Sickle-cell anemia;
(32)(31) Pulmonary disease;
(33)(32) Mental retardation provided the employee's intelligence quotient is such that he falls within the lowest percentile of the general population. However, it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.
(34) Any other pre-existing disease, condition or impairment which is permanent in nature and which:
(a) Would qualify for payment of weekly disability benefits of seventy-eight weeks or more under Section 42-9-30 exclusive of benefits payable for disfigurement; or
(b) Would support a rating of seventy-eight or more weeks of weekly disability benefits when evaluated according to the standards applied to Workers' Compensation claims in South Carolina, or combines with a subsequent injury to cause a permanent impairment rated at seventy-eight weeks or more under Section 42-9-30.
(e) The Second Injury Fund shall not be bound as to any question of law or fact by reason of any compensation agreement, settlement, award, and adjudication to which it was not a party, or in relation to which it was not notified at least twenty days prior to a hearing on liability that it might be subject to liability for the injury or death.
(f) An employer or his carrier shall must notify the Industrial Commission Workers' Compensation Commission and the Director of the Second Injury Fund in writing of any possible claim against the fund as soon as practicable but in no event later than after the payment of the first seventy-eight weeks of compensation one hundred and eighty days after the employer or his carrier receives notice of the claim. In addition, an employer or his carrier must perfect its claim with the Second Injury Fund within ninety days after the final determination of the underlying claim.
Failure to comply with the provisions of this subsection shall bar an employer or his carrier from recovery from the fund.
(g) If the employee has a permanent physical impairment, as defined in this section and the prerequisites for reimbursement have been met, and if it can be shown that the subsequent injury most probably would not have occurred 'but for' the presence of the prior impairment, then reimbursement will be granted as provided in this section even if the combined effects or the aggravation of the preexisting condition by the subsequent injury does not cause the employer's liability for compensation and medical benefits to be substantially greater than that which would have resulted from the subsequent injury alone.
(h) When a third party is deemed to be an employer for the purposes of paying workers' compensation benefits, that third party will be entitled to reimbursement from the Second Injury Fund if either he or the employer of record have met the knowledge requirements outlined in this section, as well as all other requirements.
(i) The Second Injury Fund is entitled to a credit for sums recovered by the employer or his workers' compensation carrier from third parties, after the employer or his workers' compensation carrier have been reimbursed for the moneys paid out by them and not reimbursed by the fund.
(j) The Second Injury Fund can enter into compromise settlements at the discretion of the director with approval of a majority of the Industrial Commission Workers' Compensation Commission, provided a bona fide dispute exists.
(k) Any employer operating in violation of Section 42-5-20 is not eligible for reimbursement from the South Carolina Second Injury Fund.
(l) As a prerequisite to reimbursement from the fund, the insurer shall be required to certify that the medical and indemnity reserves have been reduced to the threshold limits of reimbursement. The insurer must also give the director a copy of the insurer's letter to National Council of Compensation Insurance showing that the reserves have been reduced."
SECTION 5. Section 42-9-410 of the 1976 Code is amended to read:
"Section 42-9-410. (a) When an employee shall become becomes totally and permanently disabled under Section 42-9-10, because of the loss of a hand, arm, foot, leg, or the vision of an eye in a subsequent injury under Section 42-9-150 or 42-9-170, he may receive from the employer compensation and medical care provided by this title for total and permanent disability, and the employer shall be reimbursed a portion of the cost thereof from the Second Injury Fund as herein provided.
(b) If the loss of the member or eyesight is not caused or contributed to by any of the conditions defined as 'permanent physical impairment' in Section 42-9-400, the employer shall be responsible to pay such compensation and provide such medical care as is required by Sections 42-9-150 or 42-9-170 and 42-15-60, and the employer shall thereafter be reimbursed by the Second Injury Fund for the cost of such further compensation and medical care as the injured employee shall receive under this chapter.
(c) If the loss of the member or eyesight is caused or contributed to by any of the conditions defined in Section 42-9-400 as 'permanent physical impairment,' the employer shall pay the compensation and medical expense for seventy-eight one hundred and four weeks as required by subsection (a) of Section 42-9-400 and thereafter the employer shall be reimbursed from the Second Injury Fund for such further compensation or medical expense as the employer shall provide for the employee under this chapter.
(d) In order to receive additional benefits from the Second Injury Fund as permitted by Sections 42-9-150 and 42-9-170, the employer shall establish that he had knowledge of the employee's preexisting permanent physical impairment prior to the time of the subsequent injury by accident, unless the employer can establish that he did not have prior knowledge of the employee's preexisting physical impairment because the existence of the condition was concealed by the employee."
SECTION 1. Chapter 73, Title 38 of the 1976 Code is amended to read:
SECTION 1. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one of more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 2. This act takes effect on July 1, 2007, and applies to injuries that occur on or after this date.
This web page was last updated on Monday, June 22, 2009 at 2:37 P.M.