North Carolina and South Carolina Personal Injury Lawyer Blog

Articles Posted in Workers’ Compensation

Barcode ScannerAs a South Carolina Workers’ Compensation lawyer with Grimes Teich Anderson, I represent injured workers from our offices in Greenville, Spartanburg, and Gaffney, South Carolina.

In an earlier blog post, I wrote about the benefits an injured worker should receive if he or she is held out of work by their doctor or their employer cannot accommodate their work restrictions. These benefits, for when a worker is unable to work but is still treating, are known as Temporary Total Disability benefits or TTD, for short. If you are out of work and want to know what benefits you should be receiving, review my earlier posts or give me a call to discuss your case.

Sometimes, however, I have clients that are under work restrictions from their doctor and their employer does offer them work. If the worker is receiving the same income as before their injury they would not be entitled to any pay from their employer’s insurance company. Where entitlement to workers’ compensation benefits can occur is when a worker is being afforded work under their restrictions but they are not being paid as much or receiving as many hours as they were before they were injured.

Here is an example:

Worker is paid $25.00 per hour working at a plant in Greer, South Carolina. She works 40 hours per week and never works overtime. She is injured on the job and the company doctor puts her on light duty. She notifies her employer who offers her a light duty position but she will only receive $10.00 per hour and will only receive 20 hours per week. What is she entitled to? Continue Reading

Headache and health problems for young woman at workFor work injuries after June 24, 2011, North Carolina Law encourages employers to provide “light duty” positions while the injured worker is recovering from a work injury. These can be made up positions – a job for which the employer couldn’t justify hiring someone to do. Sometimes the tasks are of some use to the company, other times the job is just “make work” that is of little value. In most cases, light duty positions need to be approved by the authorized treating physician and be consistent with the doctor’s work restrictions. Light duty can be a good thing for all concerned if the injured worker can transition back to productive employment with the company.

Sometimes an employer will make life very difficult for an injured worker after they return to work. Supervisors may be verbally abusive, saying things in a humiliating or demeaning manner, or constantly complain about the injured employee’s work. Employers may also require other employees to carry the extra load to compensate for the injured worker’s limitations, which can cause bad feelings. In an abusive situation, the injured worker may feel as if it is better to quit than to agonize over what the employer will say or do next. If the person quits or is fired, and workers compensation benefits do not start up immediately, there will be problems paying their bills. So, that person does the best they can to do what the employer asks so they can keep their job.

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legalA frequent question from our clients is how do contingency fees work? We do almost all of our personal injury work on a contingency fee basis. That means the fee is a percentage of the amount we recover for the client. Depending on the kind of case, contingency fees can range from 25% to 40%. Also depending on the kind of case, certain amounts recovered are not subject to the contingency fee. There is an infinite variety of ways to structure a contingency fee.

Contingency fees have significant advantage over hourly fees. If you hire a lawyer on an hourly basis, typically they are going to require an upfront payment and then bill monthly. The attorney will expect to get paid monthly. If the client stops paying, then the attorney will stop working and move to terminate the relationship. Most insurance companies pay their lawyers either on an hourly basis or sometimes on a flat fee basis. In a contingency fee case, the lawyer gets a part of the recovery. Said another way, the lawyer doesn’t get paid unless the client gets paid. Often times our cases run on for years, and most clients can’t afford to pay attorneys on an hourly basis for years. Our clients prefer contingency fees because it is financially the best way for them to hire a lawyer to protect their interest.

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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 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.

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


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