Friday, January 24, 2014

Emailed Forms now Accepted at the SCWCC

You can now file your Forms 15, 17, 18, 19, and 20 via email to the SCWCC.  This new
Post by Rebecca Halberg
system should save you time and money. 


Please note, the SCWCC will not process improperly submitted e-mails, so you will need to follow these guidelines:
  1. The subject line of the e-mail must read:  WCC#(space)_______(space)Form__.  Example:  WCC#1234567 Form20.
  2. Include the Carrier Code in the body of the e-mail.
  3. The form submitted must be attached as a PDF, TIFF or JPEG.
  4. The form name must include the WCC#, Form type, and date submitted.
  5. You must submit the form to the specific email address (see attachment for list of emails).  If you are submitting multiple forms, you will need to send multiple emails.
Once the form is successfully processed, the status will be posted to eCase within 5 business days.  If eCase does not reflect the status after 5 business days, you may contact the Claims department through the “Ask a Question” function on eCase. If your form is rejected, you will receive notification of the rejection with instructions about resubmission.

Thursday, December 26, 2013

Join us for Kids’ Chance of SC 20th Anniversary Gala

Please join Collins & Lacy as we celebrate the 20th anniversary of Kids’ Chance of South Carolina on January 11, 2014 at 6:00 p.m.  The Gala will take place at the Marriott on Hampton Street in downtown Columbia.  The band Sunny Daze will perform, and Perry Tuttle will serve as the guest speaker.  It will be a fun evening in which we can celebrate the accomplishments of Kids’ Chance donors, volunteers and scholarship recipients. 

Kids’ Chance of South Carolina provides college scholarships for up to $3,000 a semester to the children of parents who are injured or killed on the job.  In 2013, Kids’ Chance awarded 30 scholarships, totaling $78,251.71.  Kids’ Chance also raised $118,989 through its fundraisers and scholarship society. 
 
To purchase tickets and obtain sponsorship information, click here.  You can also contact Kids' Chance Boad President and Collins & Lacy attorney Rebecca Halberg at rhalberg@collinsandlacy.com for more information

Thursday, October 17, 2013

S.C. Court of Appeals Addresses Exemption of Employers from Workers’ Compensation Act


Whether an Employer regularly employed four or more employees, and thus, was subject to the South Carolina Workers’ Compensation Act and the Notice Requirement were fully addressed by the South Carolina Court of Appeals in Hartzell v. Palmetto Collision, LLC, and South Carolina Worker’s Compensation Uninsured Employers Fund, Opinion No. 5176 (S.C. Ct. App. File October 9, 2013).
 
Post by Blakely Molitor

The Act specifically exempts from coverage any employer “who has regularly employed in service [fewer] than four employees in the same business within the State.”  S.C. Code Ann. § 42-1-360(2).  The code defines “employee” as “every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written … whether lawfully or unlawfully employed, but exclud[ing] a person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.”  S.C. Code Ann. § 42-1-130.
An automobile body and paint technician, claimed he was injured on February 25, 2009, while moving heavy equipment, when he noticed pain in his lower back. The next day, the pain had worsened, and he mentioned to the shop's owner that he was sore and must have hurt himself.  The owner suggested Claimant go to the emergency room if he continued to have problems. Claimant did not see a doctor for two weeks and only spoke to the owner about his lower back pain during the last few weeks prior to his voluntary departure from employment. 

The  shop was  a limited liability company with a sole member, the owner.  The owner testified that his uncle worked part-time for the shop during the third and fourth quarters of 2007.  His nephew also began working for the shop part-time in 2007.  A third employee worked for the employer through 2009 doing restoration work, and a fourth person was paid on a Form 1099 to occasionally repair heavy frame damage.  During the first quarter of 2009, the quarter when Claimant was injured, the owner’s uncle and nephew regularly worked part-time, as did the employee performing restoration work, and Claimant.  The person hired for frame damage was maintained “as needed.” 

In its analysis of the exemption issue, the Court of Appeals cited Harding v. Plumley, 329 S.C. 580, 496 S.E.2d 29 (Ct. App. 1998),  a North Carolina case, for the proposition the term "’regularly employed’ connotes employment of the same number of persons throughout the period with some constancy.”  North Carolina employs a five-part test in determining regular employment under the Act: (1) employment of the same number of persons; (2) during the relevant period of time; (3) with some constancy; (4) not by chance or for a particular occasion; and (5) without regard to the regularity of the days or hours worked. 

Using this test, the court found the shop regularly employed at least four people, and therefore was subject to the Act.  The first two factors were satisfied by reliance on the owner’s testimony that Claimant, owner’s nephew and uncle, and the employee performing restoration work were all employed by the shop during the first quarter of 2009.  The third and fourth elements were established through evidence showing that each of these men appeared on Employer’s payroll during the first quarter of 2009, and all but Claimant continued to work for the shop through the remainder of that year.  The court, implying reliance on the fifth factor, did not discuss the fact that several of the employees worked only part-time.   

The court next addressed the Act's notice requirement.  S.C. Code Ann.§ 42-15-20, an employee must give his employer notice of the accident as soon as practicable, but not to exceed 90 days after the accident.  Citing Larson's Workers' Compensation Law § 126.03, the court stated adequate notice required some knowledge of accompanying facts connected to the injury or illness with the employment, and an indication to a reasonably conscientious manager that the case might involve a potential workers' compensation claim.  Applying this law to the facts of the case, the court found the only evidence presented by Claimant was that he had casually talked to the owner about his back pain, but he never indicated a connection from his injry to his work for the Employer.  Finding Claimant did not comply with the statutory notice requirement, the Court of Appeals ultimately reversed the Commission's decision and denied compensation to Claimant. 
This decision establishes a concrete test for the determination of whether an employer is subject to the South Carolina Workers’ Compensation Act and also elaborates on the notice requirement.   We encourage you to contact us when making the determinations of whether your business operation falls under the  Workers’ Compensation Act and whether Claimants have met all statutory notice requirements prior to being awarded benefits. 

 

 

Tuesday, October 1, 2013

Give Kids a Chance: Donate to Kids’ Chance of South Carolina

 
The South Carolina Workers’ Compensation Educational Association (SCWCEA) Annual Conference is just around the corner.  On Sunday, October 20, 2013, Kids’ Chance of South Carolina will host its annual silent auction, which is held the first night at the conference.  Last year, the silent auction raised approximately $17,812.23 for Kids’ Chance Scholarships.  Kids’ Chance of South Carolina is a non-profit organization devoted to providing scholarship funds for the children of South Carolina workers killed or severely injured in work-related accidents.
Here is your chance to help.  All donations, big or small, will be graciously displayed and acknowledged during the silent auction.
Suggested items include: gift baskets, electronic items, hotel stays, air travel, weekend getaways, jewelry, gardening items, professional services, artwork, sporting tickets and/or entertainment tickets.  No item is too small!

Here’s a sneak peak at some items already donated to the auction:
  • One week stay at home in Ireland
  • Round trip tickets for two to the place of your choosing - Southwest Airlines
  • Coach handbags
  • BMW Weekend Ultimate Driving Experience
  • Weekend stay in a beautiful Saluda Mountain home
  • Fishing and hunting trips  
Rebecca Halberg
President, Kids' Chance of SC

If you are interested in supporting or donating to the Kids’ Chance silent auction, please contact me at rhalberg@collinsandlacy.com or Angie Kohl at info@kidschancesc.org, or visit the website at http://www.kidschancesc.org/
 Thank you for your continued support!

 

Tuesday, September 17, 2013

When is a Contractor also the Subcontractor, and are both protected by the Exclusivity Doctrine?

A new wrinkle in the area of Statutory Employer/Employee

Whenever I say “statutory employee/statutory employer,” eyes glaze over, expressions become frozen, and
Post by Founding Partner Stan Lacy
people start looking for the door.  It is not the most interesting topic to talk (or write) about, but a case has been decided in the Supreme Court that you should know about.  So drink some coffee, exercise your smile muscles, and bolt the door from the outside. Here is what you need to know about Poch v. Bayshore Concrete Products/South Carolina, Inc., Supreme Court Opinion No. 27304 (filed August 28, 2013). 
First, workers’ compensation is the exclusive remedy an employee has against an employer for an injury by accident in the workplace.  However, there is an exception to that rule, and it’s spelled out in §42-1-540 of the South Carolina Workers’ Compensation Act.
 
           Provided, however, this limitation of actions shall not apply to injuries resulting from acts of a subcontractor of the employer or his employee or bar actions by an employee of one subcontractor against another subcontractor or his employees when both subcontractors are hired by a common employer.
Let me explain this exception with an example.  Contractor is building a house.  He contracts with Framer, Electrician and Plumber to complete the framing, the wiring and the plumbing.  Electrician’s helper is injured when Framer’s employee drops a hammer on his head.  The helper collects workers’ compensation benefits from Electrician. Once the helper collects benefits from Electrician, Contractor is also protected by the exclusivity doctrine. If Electrician does not have comp coverage, then Helper can collect benefits from Contractor. However, in this example, Framer cannot claim the exclusive remedy and is subject to a civil suit in negligence by the helper.  Why?  Simply put, Framer is in no way responsible for payment of workers’ compensation benefits to Electrician’s helper, so Framer should not enjoy the Act’s protection.

Take it one step further.  What if the relative positions of the contractor and subcontractors are not so clear?  What if Framer is actually a wholly-owned subsidiary and closely intermingled with Contractor and is, in essence, Contractor’s alter ego?  Is Framer then protected by the Act because of Framer’s close relationship with Contractor?  Poch says, “Yes.”  But how do you know if Framer is an alter ego of Contractor protected by the Act or a subcontractor who is subject to suit? 
The Court adopted the approach taken in Monroe v. Monsanto Company, 531 F. Supp.426 (D.S.C. 1982), in which the Federal District Court examined a number of factors.  Although eight factors were listed, the Court noted the list was not exhaustive.  The factors considered were:
(1)   Did the two businesses maintain separate corporate identities?
(2)   Did the two businesses maintain separate Boards of Directors?
(3)   Did the two businesses transact business from different locations under different managers?
(4)   Did the two businesses hire and pay their own employees?
(5)   Did the two corporations hold themselves out to their employees as two separate identities?
(6)   Did the two corporations engage in different business activities?
(7)   Did the two corporations maintain separate books, bank accounts and payroll records; and
(8)   Did the two corporations file separate tax returns?
Applying these factors to the facts of the Poch case, the Court found one entity was the alter ego of the other; therefore, both were protected by the exclusivity provisions of the Act.

Friday, August 30, 2013

Updated Settlement Conference Procedures

Post by Ellen Adams
The South Carolina Workers’ Compensation Commission recently issued an Advisory Notice regarding settlement conferences. The Commission requires a Form 14B from the authorized treating physician be submitted at the time of the request for the settlement conference for all cases arising on or after July 1, 2007. The Carrier may submit additional reports or Forms 14B completed by physicians other than the authorized treating physician. If you are unable to secure a Form 14B from the treating physician, a final medical narrative can be submitted with the request for the clincher conference. The Commission will initially request a Form 14B from the Carrier; however, if you resubmit the request with an explanation that a Form 14B has been requested but not provided, the Commission will set the case for a settlement conference.

At the settlement conference, if the hearing commissioner finds the settlement agreement unfair to the Claimant, the claim will be set for a hearing rather than allowing counsel to secure additional authority at the settlement conference. Several commissioners have commented that on an increasing basis they are encountering attempts to resolve claims with unrepresented claimants on a full and final basis for payment of the rating alone. Although the current Commission is much more conservative than others we have seen, all of the Commissioners view this as inherently unfair in an admitted case.

We all want closed files. The practice pointer: secure the Form 14B at the final medical appointment to avoid delay in the setting of the settlement conference. Offer the claimant at least twice the impairment rating to clincher a file unless there is a very good explanation for offering less. The only GOOD file is a CLINCHERED file.

Tuesday, July 2, 2013

Mandatory Mediation is here! Are you ready?

SCWCC’s New Mediation Requirements in Effect June 28
 
While imposing Draconian curfews on me in high school (or so I thought), my parents relied
Post by Mikell Wyman
on an old saying:  “It’s midnight.  Do you know where your kids are?”  Well, the clock struck midnight on June 28, and the South Carolina Workers’ Compensation Commission’s new Mediation Regulation went into effect.  Do you know where your claims are?

 
The mediation regulation (SC Reg. 67-1801 through -1809) has long been in discussion, and if you’ve kept up with this blog you’ve been “in the know.”  The full text of the regulation can be found here. Everything you need to know about the evolution of this regulation is charted here.  Now the regulation is in full effect applying to any claims currently open with the Commission and any future claims.
 
By way of quick refresher, the regulation puts forth two ways your claims can get to a required mediation:
  1. It can be ordered in the discretion of a Commissioner; or,
  2. if the claim falls within a defined category requiring mandatory mediation. 
I won’t delve into the details of each of those categories, but I think it helpful to quote the language of the mandatory mediation provision for a list of those categories:
 
67-1802. Mediation Required with Certain Claims.

A. It is ordered by the Commission that claims arising under Section 42-9-10, or claiming permanent and total disability pursuant to Section 42-9-30 (21), occupational disease cases, third-party lien reduction claims, contested death claims, mental/mental injury claims, and cases of concurrent jurisdiction under the South Carolina Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act must be mediated prior to a hearing.

There are important details and caveats throughout the mediation regulation, but examining those is not the purpose of this blog post.   Rather, this is a reminder that it’s time for all of us to take a look at our open claims and identify those that are required to go to mediation and to identify those that are likely to be ordered to mediation in the discretion of a Commissioner.  Posture those cases for mediation – look for any additional discovery that may be necessary, evaluate your exposure, consider settlement authority, make mediation arrangements for those that are required, reach out to the opposing party on those that may be ordered to mediation by a Commissioner.  There will likely be a rush on mediation dates through the end of the calendar year with all the claims in the Commission’s docket that need to be mediated before they can go to a hearing.  Get a jump on scheduling so that a hearing on your claim isn’t held up by a delay in mediation. 

Just as important, if not more so, take note that many of the Commission’s forms have been modified to take into account this new mediation regulation.  Use of the amended Forms 21, 30, 50, 51, 52, 53, 54, 55, and 58 is now required.  Additionally, the Commission has created a Form 22, Claimant’s Answer to Employer’s Request for Hearing, and a Form 70, Mediator’s Report.  If you operate from an internal database of forms, be sure to update that database.  You can find copies of those amended forms on the Commission’s website here.

Collins & Lacy is pleased to offer workers’ compensation parties the certified and experienced mediating skills of Stan Lacy, Ellen Adams and Jack Griffeth.  Feel free to email Stan, Ellen or Jack directly for your mediation needs. 

If you have questions on either discretionary or mandatory mediations, give us a call at Collins & Lacy.  We’re happy to discuss your open claims and help you decide how to posture them if mediation is a possibility or a requirement.