North Carolina and South Carolina Personal Injury Lawyer Blog

Articles Posted in Workers’ Compensation

ClocksSuppose your valid Social Security Disability claim is denied today, and you appeal that denial.  How long will it be before your hearing is held in Upstate South Carolina?  The wait could be up to 16 months! That is nearly a year and a half – on average – that you’ll have to wait before your appeal is heard, regardless of the validity of your need.

That bracing statistic is accurate as of December 2014 and can be found in the Social Security Administration’s online Public Data Files.  The Average Wait Time Until Hearing Held Report presents the average number of months from the hearing request date until a hearing is held for claims pending in local hearing offices across the country.

The 16-month wait is for the Greenville, South Carolina office, which is where your hearing would be held if you reside in Spartanburg or Anderson County, S.C. The 16-month wait is the sixth longest nationwide and is shared by 16 other offices. The longest average wait as of December was 22 months for the Fort Myers, Florida office.

Another public report says the Greenville office had 9,202 cases pending as of December 26 with an average processing time of 530 days, which is explained elsewhere as the average number of days until final disposition of the hearing request. Here again, the Greenville office is among the worst performers in terms of time spent on an appeal; it ranks 14th from the bottom among 163 offices.

These reports illustrate why you will benefit from experienced and knowledgeable assistance if you have a Social Security Disability claim.

It is not unusual for a valid SSD claim to be denied initially. Often it is because of a technical issue. For instance, required forms may be missing, or records in the application may have conflicting information. Sometimes a claims reviewer simply decides you do not qualify. There is no way to know ahead of time whether your claim for Social Security Disability benefits will be approved.

How To Get Help With Your Claim

The Grimes Teich Anderson legal team can review your claim package before it is submitted or before a hearing to make sure it is complete and accurate. We can help you obtain missing information, including your medical reports, which are necessary to prove you have an impairment the SSA considers severe enough to prevent you from doing any gainful activity. We can accompany you to a hearing and advocate for you.

If you are like most people seeking SSD benefits, being disabled is a whole new world to you. In addition to meeting your medical needs, suddenly you must learn the ins and outs of the Social Security Administration, one of the largest bureaucracies in the world.

Pet Therapy Corkboard Word ConceptAccording to the Humane Society of the United States, pet ownership in the United
States has more than tripled since the 1970’s with about 62% of American households said to have at least one pet in 2012 and 47% of households owning at least one dog. Many of us experience first- hand the joys and benefits of pet ownership. But for those suffering from a mental or physical illness, animals and pets can provide much needed healing and therapeutic benefits.

There are two basic categories of animals that assist the disabled – service animals and therapy animals.

The American Disability Act provides a very specific definition of a “service animal” and as of March 15, 2011 only dogs are recognized as service animals under titles II and III of the ADA and are defined by the Act as a dog that is individually trained to do work or perform tasks for a person with a disability. Service animals are not considered pets and are specifically trained to assist a disabled individual with things such as pushing a wheelchair, alerting one to the sounds of smoke alarms, timers, and telephones; or picking up and carrying
items for an individual. While many therapy animals are specifically trained to provide therapeutic benefits to the disabled, they are not service animals and do not have the same rights to public buildings as service animals. They do, however, provide many healing benefits to the disabled and their families and have been found to significantly reduce pain, anxiety, depression and fatigue for people suffering from mental and physical disabilities. Continue Reading

work injuryA benefit provided by the South Carolina Workers’ Compensation system is out of work pay when an individual is unable to work due to their work injury. This benefit is known as Temporary Total Disability benefits or TTD. You become entitled to this benefit while treating for your work injury when your doctor either writes you out of work completely or more commonly, places restrictions on you that your employer cannot accommodate.  Many times an injured worker needs to consider hiring an experienced workers compensation attorney because because the insurance company has not started their checks, is threatening to cut off their checks, or has cut off their checks. This creates a tremendous burden on the worker because, even though the checks have stopped, the bills have not.  Sometimes, an insurance company will use other tactics to try and limit your benefits, by paying you less each week than the law says you are entitled. So what are you entitled to receive each week?

How is The Pay Owed Calculated?

Generally, an injured worker is entitled to 2/3 of their Average Weekly wage from the year prior to the accident. For example, let’s say you were injured on July 1, 2014. The insurance company is required to submit what is known as a South Carolina Form 20 to the Workers Compensation Commission that documents your wages before taxes from July 31, 2013 to July 31, 2014. These gross wages are divided by 52 weeks, and your Average Weekly Wage is determined. Your Compensation Rate is the amount you should receive each week from the insurance company and is 2/3 of your Average Weekly Wage.

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The South Carolina Workers Compensation lawyers at Grimes Teich Anderson  often get questions from people regarding work restrictions they may have as a result of their work related injury.construction worker

A typical scenario involves a worker that was put on light duty by their doctor and their employer cannot provide work for them within their restrictions. Often times they are unable to work and the employer’s insurance company will not provide them out of work benefits. This can be a tremendous burden on the worker and their family. So what are your rights?

Generally, if you are unable to work temporarily as a result of your work injury you are entitled to two-thirds of your Average Gross Weekly Wage each week until you return to work or your claim is resolved. Often a doctor will feel that you can perform some type of work but limit your duties given your injury. This can be referred to as “light duty,” “modified work,” or “restrictions.” If your employer cannot provide you work under these restrictions, you are likely entitled to begin receiving weekly benefits after you have been out of work for seven days.

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BricklayingIncreasingly and disturbingly, employers are attempting to claim an employee is an independent contractor. Though there are many benefits to employers in using independent contractors, many times an employer is attempting to improperly categorize an injured worker as an independent contractor in order to avoid liability for work-related accidents.

Under South Carolina Workers’ Compensation law, only “employees” are entitled to benefits under our laws. This term is broad but, essentially, if your employer proves that you were in fact an independent contractor rather than an “employee,” you could be denied the benefits you deserve if you are injured on the job. Fortunately, just because your employer says you are an independent contractor, does not necessarily mean that you actually are an independent contractor; it is much more complicated that a simple label.

These complicated cases require a deep analysis of the work relationship an employer and an employee had at the time the worker was injured.

Who Determines Whether I Am An Independent Contractor or Employee?
South Carolina Courts look to four different factors in determining whether a worker is an independent contractor or an employee. These four factors are: 1) the employer’s right to exercise or actual exercise of control over the details of the work and how it is performed; 2) the method of payment; 3) who furnishes the equipment; and 4) the employers’ right to terminate the employment. Generally, these factors are weighed by the Court to make a determination.

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Before operationGenerally, workers’ compensation has the right to direct medical care when they have accepted compensability for the specific part of your body, always subject to supervision by the North Carolina Industrial Commission. But this right is not absolute.

Am I Entitled to A Second Opinion?

There are provisions to obtain a second opinion for treatment with another physician. Sometimes you can simply call the adjuster and give them the name of another doctor from whom you want to receive treatment. However,usually it is not that easy. The adjuster may want to keep control over what doctor you see for a second opinion for many reasons that are important to workers compensation. Sometimes there is common ground as to who you can see for a second opinion, sometimes it is highly disputed. Sometimes the doctor you want to see does not want to treat workers compensation claimants, or, after reviewing your medical records, may not feel that they have anything to offer you. GS 97-25(b) sets out the provisions for a second opinion at workers’ compensation’s expense. Note that there is a 14-day notice requirement for a second opinion request, which will be even more significant if you would like to change providers. There are times when it may be advantageous to pay for the second opinion yourself. If there is a dispute between your treating doctor and the recommendations of the second opinion, the Industrial Commission always has the authority to decide who will be authorized to provide further treatment.

If the treatment that the workers compensation doctor is providing is no longer effective, or after talking with the doctor and sharing your concerns, you are still having a real problem with the recommended care, you probably should seek a second opinion. Especially when it comes to invasive treatment such as surgery.

Most doctors won’t operate on unwilling patients for obvious reasons. The general rule is that where the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit, the refusal of the claimant to undergo surgery is reasonable and will not prejudice the claim. Watkins v. City of Asheville, 99 N.C. App. 302, 304, 392 S.E.2d 753, 756 (1990). That is not to say, however, that you can simply refuse surgery and there not be any consequences of push-back from workers compensation. It gets complicated.
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Thumbnail image for Kickball Image.jpgSay you work for a company in South Carolina and your boss asks you to organize an employee kickball game to make the work atmosphere more enjoyable. And say you jump during the game, land awkwardly and fracture your leg.

Are you eligible for South Carolina workers’ compensation?

Yes, indeed, according to the South Carolina Supreme Court, which recently approved workers’ compensation in just such a scenario. The case involved an employee of a public relations firm who shattered his tibia and fibula during a company kickball game and underwent two surgeries.

The workers’ compensation system typically provides coverage for injuries that occur within the course and scope of a worker’s employment. But some circumstances are so unusual that hot disputes arise about whether an injury truly was related to work.

In the kickball case, the South Carolina Workers’ Compensation Commission ruled that the employee was not entitled to benefits, concluding that he was not required to attend the kickball event. On appeal, however, the South Carolina Supreme Court disagreed, siding with the injured worker.

“Although the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicate [the injured employee] was expected to attend as part of his professional duties,” the court wrote.

According to the ruling, attending an event is not voluntary “If the employee is made to understand that he is to take part in the affair.”

The court also stated: “A specific act need not be designated in an employee’s job description to be compensable.”

Unusual Work Injuries

Workers’ compensation provides coverage for medical fees, lost wages, rehabilitation and other costs for injuries occurring on the job. The system also provides death benefits for the family of an employee who dies of work-related injuries. But as the kickball case shows, work-based injuries don’t necessarily take place at the main jobsite or workplace, and employers can dispute a workers’ comp claim on the grounds that an injury or death was not sustained in the course and scope of employment.

In recent years, courts across the country have addressed many out-of-the-ordinary workers’ comp incidents. In some cases the courts favored the employee, while in others they favored the employer — and the differences are elucidating.

Here are five examples:

1. Accident: A correctional sergeant at a California county jail injured his knee while performing jumping-jacks at home as part of an exercise regimen. The sergeant argued that the injury was work-related “because he was exercising in order to maintain himself in a physical condition required by the Department.”
Ruling: Correctional officers were required to undergo periodic training exercises, many of which involved physical activity. So the sergeant’s off-duty injury arose in the course of his employment.

2. Accident: A Pennsylvania professor was meeting with a student at an off-campus restaurant to discuss the student’s upcoming dissertation defense. While visiting the salad bar, the professor fell and later died from a post-surgical infection associated with his treatment for a broken arm and shoulder. The professor’s widow was awarded death benefits, but the employer appealed the case to the state workers’ compensation board. The employer argued that the fall did not occur during the course of employment, as the professor was on lunch break at a public restaurant.
Ruling: The employee was injured off the employer’s premises but was “actually engaged in the furtherance of the employer’s business or affairs.” Thus, the off-site meeting was for teaching (and work-related) purposes.

3. Accident: An office manager attending her employer’s annual sales meeting in North Carolina fell approximately three stories while trying to “ride” the railing of an escalator following a company-sponsored dinner where alcohol was provided by the employer. Testing showed that the employee’s blood-alcohol level contributed to the accident. The employer argued that the injury occurred due to a deviation from employment activities.
Ruling: An appellate court held that “a traveling employee will be compensated under the Workers’ Compensation Act for injuries received while returning to his [or her] hotel.”

4. Accident: A painter in Utah went on a drinking binge at his work site after lunch and then took a two-hour nap in a closet. When he awoke and resumed painting duties on the second floor of the building, he fell into an empty elevator shaft. He argued that he was entitled to workers’ comp because the drinking and napping did not constitute a departure from the course of his employment.
Ruling: In drinking for two hours and napping, the painter “completely removed himself from his job duties” and was not furthering the business of his employer, the court said. The worker wasn’t engaged in any activity incidental to his work between the time he awoke and the time that he fell down the shaft, according to the ruling.

5. Accident: An exotic dancer who worked at clubs throughout the Carolinas was hit by a stray bullet and seriously injured during a shooting at a club in Columbia, S.C., where she was performing.
Ruling: Only employees are entitled to workers’ comp benefits, not independent contractors, and the court ruled that there was no employment relationship between the club and the dancer.

The details of these cases make them stand out. But even under ordinary circumstances, it isn’t unusual for employers to argue that an employee’s injury wasn’t related to work. If you suffered an on-the-job injury that your employer is disputing, a work-injury attorney may be able to help.

Sources:
• Insurance Journal: South Carolina Employee Scores Workers’ Compensation Win for Kickball Injury
• courts.ca.gov: Daniel Young v. Workers’ Compensation Appeals Board and County of Butte
• Justicia.com: The Pennsylvania State University and the PMA Insurance Group, Petitioners, v. Workers’ Compensation Appeal Board (Rabin, deceased)
• www.ic.nc.gov: Evans v. Hendrick Automotive Group
• wistv.com: Stripper shot while dancing in club denied Workers’ Compensation
• Justia.com: Wood v. Labor Commission
• Lexis Nexis: The Top 10 Bizarre Workers’ Comp Cases for 2012

Illustrations:

Top Image http://www.thinkstockphotos.com/image/stock-photo-red-kickball-approach/92048214/popup?sq=kickball/f=CPIHVX/s=DynamicRank

workerinjury1.jpgIf you have been injured on the job, you may be wondering about your rights under South Carolina’s workers’ compensation laws. You may be scared to file a workers’ compensation claim because you fear that your employer will fire you, demote you or cut your pay for doing so. This is called retaliation and is a very serious issue.

Under South Carolina law, employers are not allowed to fire or demote any employee because the employee has filed a workers’ compensation claim or has testified or is going to testify in a workers’ compensation hearing. It is illegal for employers to do so.
I believe this law is good public policy. It helps ensure that hurt workers are not afraid to report injuries so that they can receive the medical help and treatment they need.
Our law firm handles workers’ compensation claims, and we are ready to discuss your case and protect your rights. Please call us today if you have a workers’ compensation case or if you feel that you have been retaliated against for filing a workers’ compensation claim.

What can I do if my employer fires or retaliates against me?
In South Carolina, any employer who violates the law by retaliating against an employee for filing a worker’s compensation claim or for testifying in a hearing is “liable in a civil action for lost wages suffered by an employee.” If the employee is demoted to a lower position, then he or she is “entitled to be reinstated to his former position.”
In other words, you can bring a lawsuit against your employer for lost wages, and you have the right to get your old job back if you are demoted. It may be awkward for you to return to your position after you filed a lawsuit against your employer, but this is the remedy under the law.

Keep in mind that the burden is on you, as the employee, to prove the retaliation. Therefore, it is important for you to keep documents and other evidence that your employer wrongfully punished you for exercising your legal right to workers’ compensation.

The statute of limitations for retaliation claims is one year
If you were fired or demoted or otherwise retaliated against for filing a workers’ compensation claim, you have one year from the date of the retaliation to file a lawsuit. If you fail to file within that one-year period, then your claim may be lost.

How we can help
Our law firm handles workers’ compensation cases. If you would like to discuss your case with one of our attorneys, please contact our law firm. A lawyer can describe the workers’ compensation process, evaluate your medical expenses and lost wages and gather the necessary documents to prove your claim. Remember, if you have been retaliated against, you have limited time to take legal action, so call us today.

If you have been injured on the job and are concerned about whether you properly notified your employer of your accident, have questions about the Workers’ Compensation process in South Carolina, or simply need to find out if you have a case, call Grimes Teich Anderson at 864-421-0770 or contact us over the internet at www.gta-injurylaw.com. Initial injury or disability consultations are free; it won’t cost you anything to speak with us.

We have three convenient office locations in the Upstate of South Carolina: Greenville, Spartanburg, and Gaffney. At Grimes Teich Anderson we are committed to protecting the rights of hard working South Carolinians.

workerinjury.jpgIf you have been injured on the job, it is critically important that you notify your employer and take certain steps so that you can pursue your Workers’ Compensation benefits in South Carolina.

As a Workers’ Compensation Attorney, here are the two most common questions I get regarding notice:

Who do I need to notify of my work injury?

Giving notice to your employer of your job accident is the first step in obtaining the medical or compensation benefits you deserve. South Carolina requires that an injured worker must notify his or her employer of the accident. The employer representative that you give notice to should be one of your supervisors or managers rather than a co-worker.

Failure to notify your employer of your work injury could keep you from the medical care and compensation that you deserve. It important that every accident on the job, regardless of how insignificant it may seem at that time, is reported to your employer immediately. Sometimes, injuries that seem insignificant at first develop into serious injuries over time.

Ideally, notice of the accident should be given in writing and should specifically state how you were injured and should request that your employer send you for medical care and treatment. It is very important that you ensure that an accident report is filled out, that it correctly states how you were injured, and that you get a copy of the accident report. Too often, claimants are denied the benefits they deserve because their employer never documented the accident; don’t let this happen to you.

How long do I have to give notice of my work injury?

Other than some exceptions, the rule is that you have 90 days from the date of your accident to report your on-the-job injury. Practically though, it is best to notify your employer as soon as possible after your work injury. The sooner you report the injury to your employer, get an accurate accident report filled out, and request medical care the better.

Tell your employer exactly how you were hurt. Insist that an accident report is filled out, review it for accuracy, and request to be sent for medical treatment. Document as much as possible and keep copies of any emails, text messages, or letters you send to your employer.

Workers’ Compensation laws are complex and rapidly changing and every case is different. It important that if you suffer an injury on the job that you contact lawyers that handle these claims and have experience in the area of Workers’ Compensation. The South Carolina Workers’ Compensation lawyers at Grimes Teich Anderson are here to help you.

If you have been injured on the job and are concerned about whether you properly notified your employer of your accident, have questions about the Workers’ Compensation process in South Carolina, or simply need to find out if you have a case, call Grimes Teich Anderson at 864-421-0770 or contact us over the internet at www.gta-injurylaw.com.

Initial workers compensation consultations are free; it won’t cost you anything to speak with us.

We have three convenient office locations in the Upstate of South Carolina: Greenville, Spartanburg, and Gaffney. At Grimes Teich Anderson we are committed to protecting the rights of hard working South Carolinians.

Thumbnail image for bulldozer.jpgThe latest report from the U.S. Bureau of Labor Statistics indicates that the number of workplace fatalities in North Carolina was down by 10 in 2012, with 138 that year compared to 148 in the prior year.

Reductions were also reported in South Carolina, where there were 31 workplace fatalities reported in 2012, compared to 81 in 2011.

In both cases, our Western North Carolina and Upstate South Carolina workers’ compensation lawyers understand, transportation injuries were the leading cause of death at work, which was a factor in line with the rest of the country as well.

Just recently, a trucking company in Thomasville was fined by the N.C. Department of Labor for safety violations that led to the death of a 22-year-old back in March. According to media reports, the employee was working under the hood of a tractor-trailer when it fell on him and pinned him underneath, crushing him to death. The fines were reportedly issued for lack of a hazardous materials policy, failing to follow proper protocol for workers maintaining vehicles and failing to provide hazard assessments for those workers required to wear personal protection equipment.

The revised count of the National Census of Fatal Occupational Injuries in 2012 indicates that there were 4,383 work-related fatalities recorded in the U.S. last year. That’s down about 6.6 percent. However, that’s reflective of the overall total. There were some industries in which the workplace fatality risk actually rose.

For example, fatal work injuries in the private construction industry increased by 5 percent, from 738 in 2011 to 775 in 2012.

Contractors were at especially high risk of workplace fatalities, with 708 contractors killed last year – most of those worked in the construction and transportation industries.

Another major area of concern was the risk to workers under the age of 16. Those figures nearly doubled, from 10 in 2011 to 19 in 2012. That’s the highest it’s been since 2005.

Nationwide, transportation-related incidents accounted for 2 out of every 5 workplace deaths last year. Of the 1,789 transportation-related workplace deaths tallied last year, about 58 percent occurred on the roadway.

Workplace violence also remained a big problem last year, with a total of 767 workers falling victim to violence at work.

In South Carolina, incidents of workplace violence tapered off from 11 recorded incidents in 2011 to 3 in 2012. However, workplace violence incidents rose in North Carolina, from 29 in 2011 to 32 last year.

Interestingly, in 2011, men made up the vast majority of workplace violence victims in North Carolina, while the reverse was true in 2012.

What we can summarily conclude from all these figures is that employers at the local, state and federal levels must do more to bolster worker safety. It is unacceptable that even one person should leave for work one day and never return. It is especially egregious when we know that the vast majority of these incidents are entirely preventable.

If you or a loved one is involved in a work accident, contact Grimes Teich Anderson LLP. Call 1.800.533.6845. No Attorney Fees Until You’ve Been Paid.

Additional Resources:
Census of Fatal Occupational Injuries Summary, 2012, released Aug. 22, 2013, U.S. Bureau of Labor Statistics
More Blog Entries:
Scaffolding Collapse In Marion Injures 8 And Triggers Investigation, Aug. 13, 2013, Charlotte Workers’ Compensation Lawyer Blog

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