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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 16, 2007
S. 332
S. Printed 5/16/07--H. [SEC 5/17/07 9:49 AM]
Read the first time April 11, 2007.
EXPLANATION OF IMPACT:
Workers' Compensation Commission
The commission reports it would require 8.00 new FTEs for four commissioners and four Administrative Assistants at an annual cost to the general fund of $1,060,000 for salary, fringe and other operating expenses. There would also be a non-recurring cost to the general fund of $61,200 for other operating expenses due to office setup.
Attorney General's Office
The office reports it would require 1.00 new FTE for a Forensic Accountant at an annual cost to the general fund of $108,800 for salary, fringe and other operating expenses.
State Budget and Control Board
Since Section 17(A)3 of the bill provides that funding for the audit and report must be obtained from funds deposited in the fund's trust fund, there will be no impact on the General Fund of the State.
State Accident Fund
The agency indicates this bill has the potential for an overall reduction in the cost of workers' compensation claims. However, the agency is unable to estimate the reduction in claims expenses due to the multiple numbers of factors involved. Dissolution of the Second Injury Fund may indirectly result in a minimal increase in premiums. However, this increase is anticipated to be short-term and is projected to be offset by anticipated savings noted in this bill.
Second Injury Fund
The Second Injury Fund reports that the agency would continue to reimburse claims at the current level and would not be below the $8 million threshold on June 30, 2012. This would cause the fund to be sunset per Section 42-9-400(D)(2), outlined in the bill. There will be no impact to the General Fund of the State.
Judicial Department
The Department indicates this bill will have an impact on the General Fund of the State of at least $748,539 in personal service and operating cost for two additional Appeals Court Judges and their staff (1.00 Administrative Assistant and 2.00 Attorney's each). This impact is due to the changes in the appeals process of Workers' Compensation cases from the circuit court to the Court of Appeals. These additional costs are based on an estimated 240 cases to be heard by the Court of Appeals. Other cost to the department would include building renovation for which there is no readliy available estimates.
Other Agencies
The Department of Insurance, Administrative Law Court, and the Department of Corrections each indicate enactment will have no impact, or a minimal impact, on agency expenditures.
Recapitulation
There will be an annual cost to the general fund of $1,917,339 with 17.00 new FTEs and a non-recurring cost to the general fund of $61,200. However, there will also be a savings of general, federal and other funds based on reduced claims costs. Estimated savings amount is undeterminable.
SPECIAL NOTES:
The Second Injury Fund has indicated the dissolution of the fund would lead to an increase in workers' compensation insurance premiums for private employers. The increase, based on NCCI estimates, could be as much as 17%.
The italicized portion of this impact indicates the items that have been revised. For this impact, the revised constitutes information that was not available in the original impact.
Approved By:
Harry Bell
Office of State Budget
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.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 1, Title 42 of 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 a repetitive trauma injury must be determined only under the provisions of this statute.
(B) An injury is not considered a compensable repetitive trauma injury unless a commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection that is established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury.
(C) As used in this section, 'medical evidence' means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.
(D) A 'repetitive trauma injury' is considered to arise out of employment only if it is established by medical evidence that there is a direct causal relationship between the condition under which the work is performed and the injury.
(E) Upon reaching maximum medical improvement, if the employee returns to work with the employer in whose employ the repetitive trauma injury was suffered, the employee is entitled only to benefits pursuant to Section 42-9-20, but not Section 42-9-30. Upon reaching maximum medical improvement, if the employee does not return to work with the employer in whose employ the repetitive trauma injury was suffered, the employee is entitled to benefits under either Section 42-9-10 or Section 42-9-30, but not both. Medical benefits for a compensable repetitive trauma injury is as provided elsewhere in this title."
SECTION 2. Chapter 1, Title 42 of the 1976 Code is amended by adding:
"Section 42-1-700. (A) An injured or affected body part and condition must be set forth with as much specificity as possible on the commission's 'Employee's Notice of Claim' or 'Request for Hearing' form, or both, referred to as 'Form 50'. A Form 50 shall not describe an injured body part or condition as 'whole person', 'whole body', 'all body parts', or other similar language unless the injured employee died as a result of the accident. No hearing may be held on a Form 50 which does not conform to the requirements of this subsection.
(B) Nothing in this section prohibits a commissioner from determining the compensability of a body part or condition not listed or described on a Form 50 if:
(1) the body part or condition is proved by a preponderance of the evidence to have arisen from the injury or injuries out of and in the course of employment as set forth on the Form 50;
(2) it is proven to the satisfaction of the commissioner that the employee had no knowledge of the injury or condition on the date of the completion of the Form 50. However, the employee is required to amend the Form 50 upon discovery of the injury or condition within a reasonable time period pursuant to regulation; or
(3) in the case of a represented employee, the body part or condition is set forth on the commission's Pre-Hearing Brief form, and the pre-hearing brief is filed timely with the commission and timely served upon the parties.
(C) A Form 50 must be signed by an attorney if the employee is represented, verifying that the contents of the form are accurate and true to the best of the attorney's knowledge. If the employee is not represented, the employee who signs a Form 50 shall verify that the contents of the form are accurate and true to the best of the employee's knowledge."
SECTION 3. Chapter 1, Title 42 of the 1976 Code is amended by adding:
"Section 42-1-705. (A) The commission's 'Employer's Answer to Request for Hearing' form, referred to as 'Form 51', must describe with as much specificity as possible the defenses to be relied upon by the defendants. A Form 51 shall not state that 'all defenses apply' or other similar language, unless such is actually the case. A Form 51 which does not conform to the requirements of this subsection may not be considered at a hearing.
(B) Nothing in this section prohibits a commissioner from considering a defense not listed on a Form 51 if:
(1) it is proven to the satisfaction of the commissioner that the defendants had no knowledge of the facts supporting the defense on the date of the completion of the Form 51; and
(2) in the case of represented defendants, the defense omitted on the Form 51 is set forth on the commission's Pre-Hearing Brief form, and the brief is filed timely with the commission and timely served upon the parties.
(C) A Form 51 must be signed by an attorney, verifying that the contents of the form are accurate and true to the best of the attorney's knowledge. If the employer is unrepresented and completes a Form 51, the employer shall sign the form, verifying that the contents are accurate and true to the best of the employer's knowledge."
SECTION 4. Chapter 9, Title 42 of the 1976 Code is amended by adding:
"Section 42-9-35. (A) The employee shall establish by a preponderance of the evidence, including medical evidence, that:
(1) the subsequent injury aggravated the preexisting condition or permanent physical impairment; or
(2) the preexisting condition or the permanent physical impairment aggravates the subsequent injury.
(B) The commission may award compensation benefits to an employee who has a permanent physical impairment or preexisting condition and who incurs a subsequent disability from an injury arising out of and in the course of his employment for the resulting disability of the permanent physical impairment or preexisting condition and the subsequent injury. However, if the subsequent injury is limited to a single body part or member scheduled in Section 42-9-30, except for total disability to the back as provided in Section 42-9-30(21), the subsequent injury must impair or affect another body part or system in order to obtain benefits in addition to those provided for in Section 42-9-30.
(C) As used in this section, 'medical evidence' means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider.
(D) The provisions of this section apply whether or not the employer knows of the preexisting permanent disability.
(E) On and after the effective date of this section, an employee who suffers a subsequent injury which affects a single body part or member injury set forth in Section 42-9-30 is limited to the recovery set forth in that section."
SECTION 5. Section 1-23-600(D) of the 1976 Code, as last amended by Act 387 of 2006, is further amended to read:
"(D) An administrative law judge also shall preside over all appeals from final decisions of contested cases pursuant to the Administrative Procedures Act, Article I, Section 22, Constitution of the State of South Carolina, 1895, or another law, except that an appeal from a final order of the Public Service Commission and the State Ethics Commission is to the Supreme Court or the Court of Appeals as provided in the South Carolina Appellate Court Rules, an appeal from the Procurement Review Panel is to the circuit court as provided in Section 11-35-4410, an appeal from the Workers' Compensation Commission is to the circuit court Court of Appeals as provided in Section 42-17-60, and an appeal from the Employment Security Commission is to the circuit court as provided in Section 41-35-750."
SECTION 6. Section 14-8-200(a) of the 1976 Code, as last amended by Act 387 of 2006, is further amended to read:
"(a) Except as limited by subsection (b) and Section 14-8-260, the court has jurisdiction over any case in which an appeal is taken from an order, judgment, or decree of the circuit court, family court, a final decision of an agency, or a final decision of an administrative law judge, or the final decision of the Workers' Compensation Commission. This jurisdiction is appellate only, and the court shall apply the same scope of review that the Supreme Court would apply in a similar case. The court has the same authority to issue writs of supersedeas, grant stays, and grant petitions for bail as the Supreme Court would have in a similar case. The court, to the extent the Supreme Court may by rule provide for it to do so, has jurisdiction to entertain petitions for writs of certiorari in post-conviction relief matters pursuant to Section 17-27-100."
SECTION 7. 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 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 constitutes fraud. 'False statement and misrepresentation' specifically includes, but is not limited to, an intentional false report of business activities or the intentional miscount or misclassification by an employer of its employees to obtain a favorable insurance premium, payment schedule, or other economic benefit."
SECTION 8. 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, 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 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 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 shall pay the amount of restitution and tax owed;
(3) felony, for a first offense violation, if the amount of the economic advantage 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 shall pay the amount of restitution and tax owed;
(4) felony, for a first offense violation, if the amount of the economic advantage 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 shall pay the amount of restitution and tax owed;
(5) felony, for a second or subsequent violation, regardless of the amount of the economic advantage 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 shall 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 9. Section 38-55-560(E) of the 1976 Code is amended by adding at the end:
"(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 10. Section 42-1-10 of the 1976 Code is amended to read:
"Section 42-1-10. This title shall be known and cited as 'The South Carolina Workers' Compensation Law'. All references in this title to "workmen's compensation" shall mean "workers' compensation"; provided, however, all state agencies and departments and all political subdivisions of the State must exhaust the use of all current forms, stationery, and any other printed material before using, printing, or preparing any new forms, stationery, or printed material reflecting the change effected by this section. (A) This title may be cited as the 'South Carolina Workers' Compensation Law'.
(B) This title must be strictly construed and applied to promote its underlying purposes as provided in this section. Any case law inconsistent with the purposes provided in this title is specifically overruled.
(C) The purposes of this title and of the Workers' Compensation Law are to:
(1) pay timely temporary and permanent benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course and scope of their employment;
(2) pay reasonable and necessary medical expenses resulting from these injuries or diseases;
(3) improve workplace safety;
(4) encourage the return to work of injured workers;
(5) deter and punish fraud of agents, employers, employees, or any other party in the procurement of workers' compensation coverage, the providing of or denial of benefits, or the providing of medical treatment;
(6) promote the equitable and efficient resolution of workers' compensation claims; and
(7) ensure an economically viable workers' compensation system in South Carolina."
SECTION 11. Section 42-1-160 of the 1976 Code, as last amended by Act 424 of 1996, is further amended to read:
"Section 42-1-160. (A) 'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment that occurred while the employee was engaged in the regular duties of his employment and shall does 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. 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 an authorized employee of the municipality.
(B) Stress, mental injuries, and mental illness arising out of and in the course of employment unaccompanied by physical injury and resulting in mental illness or injury is are not considered a personal injury unless it is established the employee establishes, by a preponderance of the evidence:
(1) that the stressful employee's employment conditions causing the stress, mental injury, or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and
(2) the medical causation between the stress, mental injury, or mental illness, and the stressful employment conditions by medical evidence.
(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 they result from any event or series of events which is are 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) Stress, mental injuries, and mental illness alleged to have been aggravated by a work-related physical injury may not be found compensable unless the aggravation is:
(1) admitted by the employer/carrier;
(2) noted in a medical record of an authorized physician that, in the physician's opinion, the condition is at least in part causally-related or connected to the injury or accident, whether or not the physician refers the employee for treatment of the condition;
(3) found to be causally-related or connected to the accident or injury after evaluation by an authorized psychologist or psychiatrist; or
(4) noted in a medical record or report of the employee's physician as causally-related or connected to the injury or accident.
(E) In medically complex cases, an employee shall establish by medical evidence that the injury arose in the course of employment. If the medical evidence is conflicting or inconclusive, the commissioner may seek additional competent evidence, including lay testimony, to determine causation. The commissioner may not rely only on lay testimony to determine causation in medically complex cases, and the commissioner may not rely on any lay testimony that conflicts with expert medical evidence to determine causation. For purposes of this subsection, 'medically complex cases' means sophisticated cases requiring highly scientific procedures or techniques for diagnosis or treatment excluding MRI's, CAT scans, x-rays, or other similar diagnostic techniques.
(F) 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.
(G) As used in this section, 'medical evidence' means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider."
SECTION 12. Section 42-1-360 of the 1976 Code is amended to read:
"Section 42-1-360. This title shall does not apply to:
(1) a casual employees employee, as defined in Section 42-1-130, and Federal employees in this State;
(2) any person who has regularly employed in service less than four employees in the same business within the State or who had a total annual payroll during the previous calendar year of less than three thousand dollars regardless of the number of persons employed during that period;
(3) Textile Hall Corporation, an eleemosynary corporation whose principal object is the organizing and production of the Southern Textile Exposition;
(4) a state and county fair associations association;, unless any such the employer voluntarily elects to be bound by this title, as provided by Section 42-1-380.;
(4) an agricultural employees employee;, unless the agricultural employer voluntarily elects to be bound by this title, as provided by Section 42-1-380.;
(5) a railroad, railroad employee, railway express company, or railway express company employee; nor may this title be construed to repeal, amend, alter, or affect in any way the laws of this State relating to the liability of a railroad or railway express company for an injury to a respective employee;
(6) a person engaged in selling any agricultural product for a producer of them on commission or for other compensation, paid by a producer, when the product is prepared for sale by the producer;
(7) a licensed real estate sales person engaged in the sale, leasing, or rental of real estate for a licensed real estate broker on a straight commission basis and who has signed a valid independent contractor agreement with the broker;
(8) a federal employee in this State;
(9) an individual who owns or holds under a bona fide lease agreement a tractor-trailer, tractor, or other vehicle, referred to as 'vehicle', and who, under an independent contractor contract, pursuant to 49 C.F.R. Part 376, provides that vehicle and the individual's services as a driver to a motor carrier. For purposes of this item, any lease, lease-purchase, or installment-purchase of the vehicle may not be between the individual and the motor carrier referenced in this title, but it may be between the individual and an affiliate, subsidiary, or related entity or person of the motor carrier, or any other lessor or seller. Where the lease, lease-purchase, or installment-purchase is between the individual and an affiliate, subsidiary, or related entity or person of the motor carrier, or any other lessor or seller, the vehicle acquisition or financing transaction must be on terms equal to terms available in customary and usual retail transactions generally available in the State. This individual is considered an independent contractor and not an employee of the motor carrier under this title. The individual and the motor carrier to whom the individual contracts or leases the vehicle mutually may agree that the individual or workers, or both, is covered under the motor carrier's workers' compensation policy or authorized self-insurance if the individual agrees to pay the contract amounts requested by the motor carrier. Under any such agreement, the independent contractor or workers, or both, must be considered an employee of the motor carrier only for the purposes of this title and for no other purposes."
SECTION 13. Section 42-3-20 of the 1976 Code is amended to read:
"Section 42-3-20. (A) The commission shall consist of seven eleven members appointed by the Governor with the advice and consent of the Senate for terms of six years and until their successors are appointed and qualify. If the Governor does not fill a vacancy within sixty days after the vacancy occurs, the commission by majority vote shall deputize a person with suitable experience, training, and knowledge to serve as a deputy commissioner to serve until such time as the Governor fills the vacancy. As soon as the Governor appoints a replacement who is confirmed by the Senate, the deputy commissioner immediately ceases to serve in that office. While serving as a deputy commissioner, the deputy commissioner has the power and authority to swear or cause the witnesses to be sworn and shall transmit all testimony and shall make a recommendation to the commission for an award. The commission shall determine the award based upon testimony received by the deputy commissioner and may consider the deputy commissioner's recommendation.
(B) The Governor, with the advice and consent of the Senate, shall designate one commissioner as chairman for a term of two years, and the chairman may serve two terms in during his six-year term but not consecutively. At the conclusion of a commissioner's two-year term as chairman, the Governor shall appoint another chairman. If the Governor does not appoint another chairman at the expiration of the two-year term, a majority of the commission shall elect from among their members an interim chairman who shall serve until the Governor appoints another chairman other than the one last appointed. A deputy commissioner is not eligible to serve as chairman.
(C) The commissioners, other than the chairman, shall hear and determine all contested cases, conduct informal conferences when necessary, approve settlements, hear applications for full Commission reviews and handle such other matters as may come before the department for judicial disposition. Full Commission reviews shall review hearings must be conducted by six commissioners only, with the original hearing commissioner not sitting at such reviews. When one commissioner is temporarily incapacitated or a vacancy exists on the Commission, reviews may be conducted by the five remaining commissioners but in such cases decisions of the hearing commissioner shall not be reversed except on the vote of at least four commissioners; provided, however, that effective July 1, 1981 full Commission reviews may be conducted by three-member panels composed of three commissioners appointed by the chairman excluding the original hearing commissioner. The chairman, with unanimous approval the other commissioners, shall determine which full commission reviews shall be assigned to panels. The decisions of such panels shall have the same force and effect as nonpanel full commission reviews an appellate panel, made up of three commissioners, other than the chairman, with the most seniority on the commission. If there is the absence of one or more of the appellate panel members, the chairman of the commission shall serve as a member of the appellate panel. The commissioners who are designated as members of the appellate panel must not be assigned as hearing commissioners, but shall hear and decide petitions for review of single commissioner decisions on a full-time basis."
SECTION 14. Section 42-9-30 of the 1976 Code, as last amended by Act 412 of 1988, is further amended to read:
"Section 42-9-30. In cases included in the following schedule, the disability in each case shall be deemed is considered to continue for the period specified and the compensation so paid for such the injury shall be is as specified therein, to wit:
(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 is considered to be equal to the loss of one half of such thumb or finger and the compensation shall must be for one half of the periods of time above specified;
(7) the loss of more than one phalange shall be is 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 is considered to be equal to the loss of one half of such toe and the compensation shall must be for one half the periods of time above specified;
(11) the loss of more than one phalange shall be is 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 shoulder, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks;
(15) for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(15)(16) for the loss of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;
(17) for the loss of a hip, sixty-six and two-thirds percent of the average weekly wages during two hundred eighty weeks;
(16)(18) for the loss of an eye, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;
(17)(19) 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, shall provide for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards.;
(18)(20) total loss of use of a member or loss of vision of an eye shall be is considered as equivalent to the loss of such the 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 is the proportion of the payments herein provided in this section for total loss as such partial loss bears to total loss.;
(19)(21) 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 is the proportions of the periods of payment herein provided in this section 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 to have suffered total and permanent disability and compensated therefor under paragraph two of section 42-9-10.;
(20)(22) for the total or partial loss of, or loss of use of, a member, organ, or part of the body not covered herein in this section and not covered under Sections Section 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 by regulations regulation, shall 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 these ratios on accepted medical standards and such these ratios shall determine the benefits payable under this subsection.;
(21)(23) proper and equitable benefits shall must 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 must not be paid under this paragraph item, except that disfigurement shall also include includes 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 are subject to the same limitations as to maximum and minimum as set out in Section 42-9-10."
SECTION 15. Section 42-9-150 of the 1976 Code is amended to read:
"Section 42-9-150. If an employee has a permanent disability or has sustained a permanent injury in service in the Army or Navy of the that resulted from serving in the United States Armed Forces or in another employment other than that in which he receives a subsequent permanent injury by accident, such as specified in Section 42-9-30 or the second paragraph of Section 42-9-10, he shall be is entitled to compensation only for the degree of disability which would have resulted from the later accident if the earlier disability or injury had not existed, except that such the employee may receive further benefits as provided by Sections 42-7-310, 42-9-400 and 42-9-410 Title if his subsequent injury qualifies for additional benefits provided therein under Section 42-9-35."
SECTION 16. Section 42-9-170 of the 1976 Code is amended to read:
"Section 42-9-170. (A) If an employee receives a permanent injury as specified in Section 42-9-30 or the second paragraph of Section 42-9-10 after having sustained another permanent injury in the same employment, he shall be is entitled to compensation for both injuries, but the total compensation shall must be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding five hundred weeks. If an employee has previously has incurred permanent partial disability through the loss of a hand, arm, shoulder, foot, leg, hip, or eye and by subsequent accident incurs total permanent disability through the loss of another member, the employer's liability is for the subsequent injury only, except that such the employee may receive further benefits as provided by Sections 42-7-310, 42-9-400, and 42-9-410 if his subsequent injury qualifies for additional benefits provided therein in those sections. This subsection is effective until June 30, 2008.
(B) If an employee receives a permanent injury as specified in Section 42-9-30 or the second paragraph of Section 42-9-10 after having sustained another permanent injury in the same employment, he is entitled to compensation for both injuries, but the total compensation must be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding five hundred weeks. If an employee previously has incurred permanent partial disability through the loss of a hand, arm, shoulder, foot, leg, hip, or eye and by subsequent accident incurs total permanent disability through the loss of another member, the employer's liability is for the subsequent injury only, except that the employee may receive further benefits as provided under the provisions of Section 42-9-35. This subsection is effective on July 1, 2008."
SECTION 17. A. Section 42-9-400(d) of the 1976 Code is amended to read:
"(d)(1) 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) Amputated foot, leg, arm or hand
(6) Loss of sight of one or both eyes or partial loss of uncorrected vision of more than seventy-five percent bilateral
(7) Residual disability from Poliomyelitis
(8) Cerebral palsy
(9) Multiple sclerosis
(10) Parkinson's disease
(11) Cerebral vascular accident
(12) Tuberculosis
(13) Silicosis
(14) Psychoneurotic disability following treatment in a recognized medical or mental institution
(15) Hemophilia
(16) Chronic ostemyelitis
(17) Ankylosis of joints
(18) Hyperinsulinism
(19) Muscular dystrophy
(20) Arteriosclerosis
(21) Thrombophlebitis
(22) Varicose Veins
(23) Heavy metal poisoning
(24) Ionizing radiation injury
(25) Compressed air sequelae
(26) Ruptured intervertebral disc
(27) Hodgkins disease
(28) Brain damage
(29) Deafness
(30) Cancer
(31) Sickle-cell anemia
(32) Pulmonary disease
(33) 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
(i) amputated foot, leg, arm, or hand;
(ii) loss of sight of one or both eyes or partial loss of uncorrected vision of more than seventy-five percent bilateral;
(iii) ruptured intervertebral disc.
(2) If the paid claims of the fund for the fiscal year ending June 30, 2012, equal or exceed the total sum of eight million dollars, the Second Injury Fund shall not reimburse an employer or insurance carrier for an otherwise qualifying injury that occurs after June 30, 2012, but shall continue reimbursing employers and insurance carriers for qualifying claims resulting from injuries occurring on or before June 30, 2012. The Budget and Control Board shall provide for the efficient and expeditious closure of the fund with the orderly winding down of the affairs of the fund so that the remaining liabilities of the fund are paid utilizing assessments, accelerated assessments, annuities, loss portfolio transfers, or such other mechanisms as determined necessary to fund any remaining liabilities of the fund.
(3) If the paid claims of the fund for the fiscal year ending June 30, 2012, do not exceed the total sum of eight million dollars, the Budget and Control Board shall require an audit to be conducted of fund liabilities on June 30, 2012. Funding for this audit must be obtained from funds deposited in the fund's trust fund. Based on the information in the audit, the Budget and Control Board shall prepare a report to the Speaker of the House of Representatives and to the President Pro Tempore of the Senate, not later than January 1, 2013. The report must include its evaluation of the fund's operations."
B. On or after the effective date of this act, the Second Injury Fund shall not accept a claim for reimbursement from any employer or insurance carrier for any subsequent impairment unless the preexisting impairment is one of the permanent physical impairments enumerated in Section 42-9-400(d)(1).
C. The amendment to Section 42-9-400(d) of the 1976 Code as contained in this section is not intended to effect workers' compensation benefits to injured employees provided in any other provision of law."
SECTION 18. Section 42-11-10 of the 1976 Code is amended to read:
"Section 42-11-10. (A) The words 'Occupational disease' mean means a disease arising out of and in the course of employment which that 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 is considered 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 of that particular trade, process, occupation, or employment. In a claim for an occupational disease, the employee shall establish that the occupational disease arose directly and naturally from exposure in this State to the hazards peculiar to the particular employment by a preponderance of the evidence.
(B) No A disease shall be deemed is not considered an occupational disease when if 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 the body of foreign organic or inorganic matter under circumstances peculiar to the employment and the processes utilized therein in that particular trade, process, occupation, or employment; or
(6) It is any a chronic disease of the skeletal joints; or
(7) is a condition of the neck, back, or spinal column.
(C) Compensation is not payable for any occupational disease unless the claimant suffers disability as described in Section 42-9-10 or 42-9-20, and disability from an occupational disease is not compensable pursuant to the provisions of Section 42-9-30."
SECTION 19. Section 42-15-60 of the 1976 Code is amended to read:
"Section 42-15-60. (A) The employer shall provide medical, surgical, hospital, and other treatment, including medical and surgical supplies as may reasonably may 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 an additional time as in the judgment of the commission will tend to lessen the period of disability and, as evidenced by expert medical evidence stated to a reasonable degree of medical certainty. In addition thereto to it, such the original artificial members as may be reasonably may be necessary at the end of the healing period shall must 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 any period of disability resulting from the injury, the employer may, at his own option, may continue to furnish or cause to be furnished, free of charge to the employee, and the employee shall accept, an attending physician, unless otherwise ordered by the commission and, in addition, such surgical and hospital service and supplies as may be deemed and any medical care or treatment that is considered necessary by such the attending physician, or the commission unless otherwise ordered by the commission for good cause shown. 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 bars the employee from further compensation until such the refusal ceases and no compensation shall at any time be is not 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 the service shall must be paid by the employer, if so ordered by the commission.
(B) In cases in which total and permanent disability results, reasonable and necessary nursing services, medicines, prosthetic devices, sick travel, medical, hospital, and other treatment or care shall be paid during the life of the injured employee, without regard to any limitation in this title including the maximum compensation limit. 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. In a case that does not involve an award of permanent and total disability benefits provided by Section 42-9-10, the employee has the burden of proving by a preponderance of the evidence that all medical benefits claimed following the date of last payment of disability benefits or, in cases where no disability benefits were paid, the date of the accident, were reasonably necessary to lessen the period of disability. After an employee has reached maximum medical improvement, the employee's entitlement to additional medical benefits is limited to that provided in this section, unless the employee files a timely petition for review of the order or award on grounds of change of condition provided by Section 42-17-90. In a case involving an award of total disability benefits provided by Section 42-9-10, the employee has the burden of proving by a preponderance of the evidence that all medical benefits claimed more than ten weeks after the accident were proximately caused by the accident."
SECTION 20. Section 42-15-80 of the 1976 Code is amended to read:
"Section 42-15-80. (A) After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the commission. The employee shall have has the right to have present at such the examination any duly qualified physician or surgeon provided and paid by him. No A fact communicated to or otherwise learned by any physician or surgeon who may have attended or examined the employee, or who may have been present at any examination, shall be is not privileged, either in hearings provided for by this title or any action at law brought to recover damages against any an employer who may have accepted the compensation provisions of this title. If the employee refuses to submit himself to or in any way obstructs such the examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings a proceeding under this title shall must be suspended until such the refusal or objection ceases and no compensation shall is not payable at any time be payable for the period of suspension unless in the opinion of the commission the circumstances justify the refusal or obstruction. The employer or the commission may require in any case of death require an autopsy at the expense of the person requesting it.
(B) A physician, surgeon, or other health care provider may discuss and otherwise communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the representative of the insurance carrier, the employer, the employee, their respective attorney, or the commission without the employee's permission. A discussion, disclosure, or communication made by a physician, surgeon, or other health care provider pursuant to this section is not a violation of physician-patient confidentiality.
(C) The commission shall promulgate regulations establishing the role of rehabilitation professionals and other similarly situated professionals in workers' compensation cases with consideration given to these person's duties to both the employer and the employee and the standards of care applicable to the rehabilitation professional or other similarly situated professional as the case may be."
SECTION 21. Section 42-15-95 of the 1976 Code, as last amended by Act 468 of 1994, is further amended to read:
"Section 42-15-95. (A) As used in this section, 'medical and vocational information' means information collected in the process of assessing, planning, coordinating, monitoring, or evaluating the services required to address a claimant's health care needs through quality care promoting optimal recovery and rehabilitation.
(B) 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 shall furnish all medical and vocational information pertaining directly to a workers' compensation claim must be provided to the insurance carrier, the employer, the employee, their attorneys, or the South Carolina Workers' Compensation Commission, within fourteen days after receipt of written request.
(C) 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 for each page for the first thirty pages and fifty cents per for each page for all other pages, and a clerical fee for searching and handling not to exceed fifteen dollars per for each 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.
(D) If a treatment facility or physician fails to send furnish the requested information within forty-five 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."
SECTION 22. Section 42-17-60 of the 1976 Code, as last amended by Act 439 of 1990, is further amended to read:
"Section 42-17-60. The award of the commission, as provided in Section 42-17-40, if not reviewed in due time, or an award of the commission upon such the review, as provided in Section 42-17-50, is conclusive and binding as to all questions of fact. However, either party to the dispute, within thirty days from the date of the award or within thirty days after receipt of notice to be sent by registered mail of the award, but not thereafter whichever is the longest, may appeal from the decision of the commission to the Court of common pleas of the county in which the alleged accident happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions Appeals. Notice of appeal must state the grounds of the appeal or the alleged errors of law. In case of an appeal from the decision of the commission on questions of law, the appeal does not operate as a supersedeas and thereafter after that the employer is required to make payment of the award involved in the appeal or certification until the questions at issue have been fully determined in accordance with the provisions of this title."
SECTION 23. Section 42-17-90 of the 1976 Code is amended to read:
"Section 42-17-90. Upon On its own motion or upon on the application of any a party in interest on the ground of a change in condition, the commission may review any an award and on such that review may make an award ending, diminishing, or increasing the compensation previously awarded, on proof by a preponderance of the evidence that there has been a physical change of condition caused by the original injury, after the last payment of compensation. An award is subject to the maximum or minimum provided in this title, and shall the commission immediately shall send to the parties a copy of the order changing the award. No such The review shall does not affect such the award as regards any moneys monies paid and no such the review shall must not be made after twelve months from the date of the last payment of compensation pursuant to an award under provided by this title. In occupational disease cases, a review must not be made after twelve months from the date of the last payment of compensation provided by Section 42-9-10 or 42-9-20."
SECTION 24. A. The General Assembly declares that in enacting this section it intends to further provide for provisions of law relating to the Loss Cost Multiplier.
B. Section 38-73-520 of the 1976 Code is amended to read:
"Section 38-73-520. Every insurer shall must file with the department, except as to exempt commercial policies, every manual of classifications, rules, and rates, every rating plan, and every modification of any of these which it proposes to use. The filing exemption shall not apply to loss cost filings by advisory or rating organizations or to the multiplier for expenses, assessments, profit, and contingencies and any modifications to loss costs used by a workers' compensation insurer to be applied to approved loss costs to develop the insurer's rates as provided in Section 38-73-525. Every filing shall must state the proposed effective date and shall indicate the character and extent of the coverage contemplated."
C. Chapter 73, Title 38 of the 1976 Code is amended by adding:
"Section 38-73-525. At least thirty days prior to using new rates, every insurer writing workers' compensation must file its multiplier for expenses, assessments, profit, and contingencies and any information relied upon by the insurer to support the multiplier and any modifications to loss costs. A copy of the filing must be provided simultaneously to the Consumer Advocate. The filing must contain, at a minimum, the following information: commission expense; other acquisition expense; general expense; expenses associated with recoveries from the Second Injury Fund; guaranty fund assessments; other assessments; premium taxes; miscellaneous taxes, licenses, or fees; and provision for profit and contingencies. Rate filings must be reviewed by an actuary employed or retained by the department who is a member of the American Academy of Actuaries or an associate or fellow of the Casualty Actuarial Society. Within the thirty-day period, if the director or his or her designee believes the information filed is not complete, the director or his or her designee must notify the insurer of additional information to be provided. Within fifteen days of receipt of the notification, the insurer must provide the requested information or file for a hearing challenging the reasonableness of the director's or his or her designee's request. The burden is on the insurer to justify the denial of the additional information. Unless a hearing has been requested, upon expiration of the thirty-day period or the fifteen-day period, whichever is later, the insurer may use the rates developed using the multiplier of expenses, assessments, profit, and contingencies."
D. Section 38-73-960 of the 1976 Code is amended to read:
"Section 38-73-960. The director or his or her designee shall must review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of this chapter. Subject to the exceptions specified in Sections 38-73-965, 38-73-970, and 38-73-980, each filing must be on file for a waiting period of sixty days before it becomes effective. This period may be extended by the director or his or her designee for an additional period not to exceed sixty days if he or she gives written notice within the waiting period to the insurer or rating organization which made the filing that he or she needs additional time for the consideration of the filing. Upon written application by the insurer or rating organization, the director or his or her designee may authorize a filing which he or she has reviewed to become effective before the expiration of the waiting period or any extension thereof. A filing meets the requirements of this chapter unless disapproved by the director or his or her designee within the waiting period or any extension thereof."
E. Chapter 73, Title 38 of the 1976 Code is amended by adding:
"Section 38-73-965. A filing made pursuant to Section 38-73-525 is governed by the effective dates specified in that section."
F. Section 38-73-990 of the 1976 Code is amended to read:
"Section 38-73-990. If Except as provided in Section 38-73-995, if within the waiting period or any extension thereof as provided in Section 38-73-960 the director or his or her designee finds that a filing or a part of a filing does not meet the requirements of this chapter, he shall or she must send to the insurer or rating organization which made the filing written notice of disapproval of the filing or part of a filing specifying therein in what respects he or she finds the filing or part thereof fails to meet the requirements of this chapter and stating that the filing or the part may not become effective."
G. Chapter 73, Title 38 of the 1976 Code is amended by adding:
"Section 38-73-995. An insurer's workers' compensation rates developed using its most recent multiplier for expenses, assessments, profit, and contingencies and any modifications to loss costs may be disapproved at any time after they become effective if the director or his or her designee determines that they do not meet the requirements of this chapter."
H. Chapter 73, Title 38 of the 1976 Code is amended by adding:
"Section 38-73-526. The director or his or her designee must issue a report to the General Assembly by the first of January each year that evaluates the state of the workers' compensation insurance market in this State. The report must contain an analysis of the availability and affordability of workers' compensation coverage and document that the department has complied with the provisions of Sections 38-73-430 and 38-73-525 with regard to both workers' compensation loss cost filings submitted by an advisory or rating organization and multiplier filings submitted by every insurer writing workers' compensation insurance."
SECTION 25. Sections 42-1-350, 42-1-370, 42-1-375, and 42-9-80 of the 1976 Code are repealed.
SECTION 26. If any section, subsection, 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 act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 27. Except as otherwise provided for in this act, this act takes effect July 1, 2007 or, if ratified after July 1, 2007 and except otherwise stated, upon approval by the Governor and applies to injuries that occur on or after this date.
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