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Workers’ Compensation Questions and Answers

1. What Does a Workers’ Compensation Lawyer Charge?

If you have been hurt on the job you may want to get a workers’ comp attorney to help you. The Workers’ Compensation laws of South Carolina are complex and have many “traps” for the unwary. Before hiring a workers’ comp lawyer you need to know the costs involved. Most South Carolina Workers’ compensation attorneys handle workers’ compensation claims on a contingency fees. A contingency fee means that you owe the lawyer nothing if there is no recovery. If there is a recovery, typically the cost is one third or 33% of any recovery. All attorneys fees must be approved by the South Carolina Workers’ Compensation Commission. Contingency fees mean if there is no recovery there is no fee. Call us at (843) 863-1800,  email us at lindsay@blankslawfirm.com or visit our contact us page for a free case evaluation.

2. What Should I Do if I am Hurt at Work?

Generally in South Carolina you have the right to file for workers’ compensation benefits if you are injured or hurt on the job and the injury or illness arises out of and in the course of your employment See South Carolina Code of laws Annotated Section 42-1-160. Under South Carolina workers’ compensation laws you are entitled to three main benefits medical care, weekly workers’ compensation checks and a workers’ compensation settlement. Your entitlement to these benefits is determined by the South Carolina Workers’ Compensation Commission after considering all of the medical and other evidence associated with your injury. Call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page if you need help or have other questions.

3. What Medical Benefits am I Entitled to Under Workers’ Comp?

What you are SUPPOSED to receive is “all medical treatment that would tend to lessen the period of your disability.” Often insurance companies refuse to provide the treatment you need to get better. Insurance companies get to pick the doctor you see but even then they often refuse to follow the treatment suggested by the doctor THEY picked. Your only option is to fight to get the treatment you need and deserve.

4. Can I Still Get Workers’ Compensation if the Accident Was My Fault?

Most workers’ comp lawyers are asked the question: “Can I get workers’ Comp benefits even if the accident was my fault?” The answer is YES. Workers’ Comp is a no fault system where you are entitled to Workers’ Compensation benefits even if the injury was your fault unless you are intoxicated or get injured intentionally (See South Carolina Code of Laws 42-9-60). Even if you unintentionally caused your own work injury, you may still be entitled to workers’ compensation benefits in South Carolina. These benefits include medical treatment, lost wages and compensation for any permanent impairment. If you need help or have questions call us at (843) 863-1800,  email us at lindsay@blankslawfirm.com or visit our contact us page.

5. Can I See My Own Doctor?

Under South Carolina law the employer gets to pick the doctor who treats you for your work related injury. Under the South Carolina workers’ compensation regulations 67-509  if you are hurt on the job and are receiving temporary compensation benefits, “[t]he employer’s representative chooses an authorized health care provider and pays for authorized treatment.” However, section 42-15-60 of the Workers’ Compensation Act allows the Workers’ Compensation Commission to in case of a controversy arising between employer and employee, the Commission may order further medical, surgical, hospital or other treatment as may in the discretion of the Commission be necessary.
The bottom line is that the workers’ compensation insurance gets to choose the doctor but  if there is a controversy the Workers’ Compensation Commission can order different treatment by different doctors.

6. What Kind of Benefits Can I Receive From Workers’ Compensation?

If you have been hurt at work you are entitled to 3 main types of benefits: These benefits include medical treatment, lost wages and compensation for any permanent impairment.
If you need help or have questions call us at (843) 863-1800,  email us at lindsay@blankslawfirm.com or visit our contact us page.

7. Do I Need a Lawyer to File for a Workers’ Comp Claim?

If you have been hurt on the job, you may be asking yourself whether you need a workers’ compensation attorney to help with your claim. You are not required to have a lawyer to file a workers’ comp claim just as you are not required to hire a doctor to perform surgery or a dentist to work on your teeth. You probably do not need a workers’ compensation attorney if you did not miss any time from work or have minor injury. But if you do not fit within these limited circumstances you should probably at least consult with a South Carolina Workers’ Compensation attorney. Most lawyers (including myself) will give a free consultation and will tell you whether you need a lawyer to help you. You may think that back injury you have is a “pulled muscle” when what you have is actually a very serious injury such as a herniated disk. I have had clients who were told their MRI scans “did not look that bad” when in fact the MRI showed one (or more than one) herniated disk. Also the insurance company will be actively (or behind your back) fighting your claim outright or trying to reduce the value of your claim. Many insurance companies hire Nurse Case Managers to try to minimize or eliminate your medical treatment. They will also push the workers’ comp doctor to return you to work before you are ready. Many of the Nurse Case Managers are well intentioned and will actually help your treatment but, make no mistake, they know they work for the workers’ comp insurance company. I have had nurse case managers who have actively tried to interfere with my client’s treatment and to prevent them from getting the medical treatment they needed to recover fully and return to work. You should probably get a free consultation with an experienced workers’ comp lawyer to be sure your rights are protected. If you need help or have questions call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

8. What Can a Workers’ Compensation Lawyer Do for Me?

The first job of a workers’ comp lawyer is to help you get the medical treatment you need. The priority should be for you to recover as fully as possible. This means fighting for the the medical treatment you need to get better. The insurance company’s goal is to close your case as quickly and with as little treatment (and expense for them) as possible. This is why they hire Nurse Case Managers to “manage” your treatment. I want you to go back to work as soon as you can but not if you need further time to recover. I don’t want you to reinjure or hurt yourself worse by going back too soon. 

You will sometimes need a second medical opinion to consider other medical options the workers’ comp doctor may not have considered. The Second job of a workers comp attorney is to get you compensation for your lost wages and lost time from work that you are entitled to by law.

The third job of a workmans’ compensation attorney is to get you compensation for your impairment or disability.  If you suffer an impairment to a body part, for example your back, shoulder or leg, you are entitled to a settlement from workers comp. The workers’ comp lawyer can help you get a fair settlement  and considers all of the injuries from your work accident.

9. Can I Go Back to My Old Job?

If you recover enough from your injuries allow you to return to work you should certainly do so. If you cannot return to work you should consider your training, education and experience and look at what alternate jobs are available and what they pay. Many lawyers, depending on the case, will consider hiring a vocational expert to assess your loss of earning capacity. South Carolina Cod Ann 42-9-20 allows you to seek compensation under a loss of earning capacity if more than one body part is effected. Vocational experts are expensive and you should probably hire an expert workers’ compensation attorney to  help. If you need help or have questions call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

10. Can You Be Fired While on Workers Comp?

It is illegal in South Carolina for an employer to fire an employee for filing a workers comp claim. SC Code Annotated 42-1-80. “No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers’ Compensation Law, or has testified or is about to testify in any such proceeding.”

The problem will be showing that the firing was in retaliation for filing the job injury claim. The employer will claim that they fired you for other reasons such as missing work, tardiness, failure to follow work rules or company policies. It will be up to a jury to decide whether the excuses the employer gave were valid. If you need help or have questions call us at (843) 863-1800,  email us at lindsay@blankslawfirm.com or visit our contact us page.

11. What is Workman’s Compensation?

Workman’s Comp insurance is a type of insurance which protects employees who have been injured on the job. SC Law Code Ann 42-1-360 requires all employers, with very few exceptions, who have at least four employees to carry workers’ compensation insurance. The cost of workers’ compensation insurance coverage is paid entirely by employers. SC Workers’ Compensation laws are complex and difficult for people to understand. If you need help or have questions call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

12. What Happens When You Get a Workman’s Comp Lawyer?

The workers’ compensation lawyer will contact the insurance company and tell them not to contact you directly. In some cases the lawyer will allow the Nurse Case manager to contact the client directly to coordinate medical treatment. As a workers’ compensation lawyer who has handled workers’ compensation cases for over 30 years I can say that if you do not get a lawyer to help you with your claim you are likely to short change  yourself. Workers’ compensation law is complicated and the laws in South Carolina  tend to favor the employer. In South Carolina  there are strict procedural rules and many required forms to be filled out.

For example just how and when you give your employer notice of the injury can be difficult, and if you make a mistake you can lose your claim. Even if the workers’ compensation commissioner is sympathetic and wants to help you he or she may by limited by the law. If you have a serious injury that will take you off work for a significant amount of time or will cause a permanent disability, get a workers’ comp lawyer. If you need help or have questions call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

13. How Much Does Workers’ Comp Pay in South Carolina?

Determining how much you should be paid for workers’ comp in SC is a two part process. First you determine what the Average weekly Wage is: Under SC law 42-1-40 “Average weekly wages” means the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury…”

There are some situations where this will not apply such as when the injury happens and the worker has been employed less than 52 weeks before the injury. In that situation the commission can do what is “fair and just.” The South Carolina Workers’ Compensation Commission can also consider the wages earned by a  “person of the same grade and character employed in the same class of employment in the same locality or community.” To make it even more complicated South Carolina Courts have interpreted the statute as requiring that the SC Workers’ Compensation Commission determine the person’s probably future earning capacity. See Sellers vs. Pinedale “The objective of wage calculation is to arrive at a fair approximation of the claimant’s probable future earning capacity. His disability reaches into the future, not the past; his loss as a result of injury must be thought of in terms of its impact on probable future earnings.”

Part two of determining how much you should be paid is the compensation rate. Under South Carolina law the compensation rate is your average weekly wage multiplied by .6667.  Accurately determining your average weekly wage and compensation rate is a CRITICAL part or your workers’ compensation claim. You need an experienced lawyer to help. Call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

When for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury. Whenever allowances of any character made to an employee in lieu of wages are a specified part of a wage contract they are deemed a part of his earnings.

14. When Do I Get Paid for Workers’ Comp?

Usually workers’ compensation checks are paid on a weekly basis.

15. Do You Claim Workers’ Comp on Your Taxes?

Generally workers’ compensation payments are not taxable in South Carolina. Under IRS code 26 U.S.C. 104 workers’ compensation claims are not taxable.

16. What Does MMI or Maximum Medical Improvement Mean?

One question that workers’ compensation attorneys get asked constantly is:What Does MMI or Maximum medical Improvement mean? This term has a special legal meaning under South Carolina Workers’ Compensation laws. South Carolina courts have stated in “Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment which will lessen the degree of impairment.” It does NOT mean that your disability has ended. “Thus, the fact that a claimant may have some degree of permanent impairment does not prevent the claimant from ever reaching maximum medical improvement.” Smith v. S.C. Dept. of Mental Health, 329 S.C. 485, 495 (S.C. Ct. App. 1997). It means that there is nothing more doctors can do for you to help you decrease your impairment.

17. What Happens if I Don’t Agree with the Workers’ Comp Doctor?

It is risky for you to refuse to follow the recommendations of the workers’ comp doctor. South Carolina Law  Code Sec 42-1-60 states . . . . [T]he 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, unless otherwise ordered by the Commission. . . . The refusal of an employee to accept any medical, hospital, surgical or other treatment 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 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.” In other words, if you refuse treatment the Workers’ Comp insurance company can stop your benefits until you agree or until the SC Workers’ Compensation Commission says you were justified in refusing treatment. What constitutes “justification” for refusing treatment is determined on a case by case basis. If you don’t agree with the workers comp doctor you should consult a skilled workers comp lawyer. If you need help or have questions call us at (843) 863-1800, email us at lindsay@blankslawfirm.com or visit our contact us page.

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