Chapter 1 Practice and Procedure

• Library: The Law of Workers’ Compensation Insurance in South Carolina (SCBar) (2019 Ed.)

Chapter 1 Practice and Procedure

I. Introduction

Prior to September 2, 1990, practice and procedures were governed by Regulations 67-1 through 67-38.¹ In March of 1988, the Legislative Audit Council released its audit of the Commission. The Council criticized these Regulations as both incomplete and inadequate. Newcomers to workers' compensation practice were forced to rely upon advice from seasoned practitioners and folklore handed down by word of mouth. The task to rewrite the Regulations was undertaken resulting in the adoption of the Regulations contained in Articles 1 through 17 of Chapter 67 of the South Carolina Code of Regulations.

Effective September 2, 1990, Workers' Compensation Regulations 67-101 through 67-1701, govern practice, procedure, and the conduct of the Commission itself. Additionally, Regulations were amended, repealed, or added on occasion thereafter. In 2013, Regulations promulgating rules for mediation were also added. The Regulations contained in Articles 1 through 17 of Chapter 67 of the South Carolina Code of Regulations, now run from 67-101 through 67-1809.

The Regulations record the Commission's unwritten procedures which have evolved over the decades since the adoption of the Workers' Compensation Act. The Regulations provide instructions for compliance with the Act and formalize and standardize processing voluntary settlements and conducting hearings. Counsel is also advised to consult the adjudication provisions of the Administrative Procedures Act² in addition to the Regulations.

A. The Employer's Representative

The "Employer's Representative" is one of the most important terms in the Regulations. The term refers to the employer's insurance carrier, claims administrator for a self-insurance fund or self-insured employer, the State Accident Fund, and counsel of record for the employer and its insurance carrier. If an employer is improperly uninsured, the term also applies to the employer and its attorney, if any.³ A representative of the employer's insurance carrier, e.g., an adjuster, may prepare and file the documents and forms referred to within the Regulations unless otherwise specifically provided in the Regulations.

An attorney is required to file a letter of representation with the Commission, and obtain an Order to be relieved as counsel, when necessary.⁴ Insurance carriers are required to obtain counsel upon receipt of an Employee's Request for Hearing or after filing an Employer's Request for Hearing. The attorney for the employer and insurance carrier is required to timely file a letter of representation.⁵

B. Deputy Commissioner and Chairman

The Workers' Compensation Act requires that the Commission consist of seven members (Commissioners) appointed by the Governor with the advice and consent of the Senate. Each Commissioner serves a term of six years until his or her successor is appointed and qualifies. The 2007 Workers' Compensation Reform Act legislation provides that in the event the Governor does not fill a vacancy within 60 days, then the Commission may, by majority vote, deputize a "Deputy Commissioner" to serve until the Governor fills the vacancy. Such person must possess "suitable experience, training, and knowledge" to serve as a Deputy Commissioner. The powers of a Deputy Commissioner are limited to swearing witnesses, transmitting testimony, and making recommendations to the Commission for an award. The Deputy Commissioner's service immediately ceases upon replacement by the Governor.⁶

The Governor still appoints one Commissioner to serve as the Chairman of the Workers' Compensation Commission. In 2016, the statute was modified to allow the Governor to reappoint a Commissioner to serve as the Chairman.⁷ This was a change from the prior statute that only allowed a Chairman to serve up to two non-consecutive terms during the six-year tenure. However, in the event the Governor does not appoint a Chairman, the Commissioners may elect, by a majority vote, a Chairman to serve until the Governor makes an appointment. Deputy Commissioners are not eligible to serve as Chairman (unless, presumably, appointed by the Governor).⁸

C. Administrative Assistants to Commissioners

Whereas each Commissioner was previously authorized to employ a secretary and court reporter "at his pleasure," the 2007 Workers' Compensation Reform Act legislation now limits each Commissioner to only an administrative assistant. The administrative assistant serves at "the Commissioner's pleasure." This legislation is likely related to the Commission's prior decision to eliminate the position of court reporters, as discussed in Morris v. South Carolina Workers' Compensation Commission.⁹ In Morris, the positions of court reporters employed by the Commissioners were eliminated during a Reduction in Force Plan adopted by a majority of the Commissioners.

II. Filing Date

When a filing date is important, refer to Regulation 67-205. A form or document delivered to the Commission by first-class mail or by hand delivery is filed the date of receipt in the Commission's offices as indicated by the earliest date stamped on the form or document by an official Commission date stamp with the exception of forms and documents delivered pursuant to Regulation 67-205C and Regulation 67-205D. When a filing date is critical, certified or registered mail may be used in which case the date of deposit in the United States Postal Service as indicated by the date of postmark is deemed the date of filing.

The following forms or documents are deemed filed on the date on the accompanying certificate of service properly addressed to the Commission: Forms 15(111), 50, 51, 52, 53, 54, 55, 58, 30, and appellate briefs.¹⁰ The practitioner should note there is no provision in the Regulation for use of private overnight delivery service. Presumably, filing by delivery via a private overnight delivery service is accomplished the date of receipt in the Commission's offices and not the day of deposit with the delivery service. When expedited attention is required, one should note most of the Regulations name a particular department or division of the Commission for receipt of a form or document. By directing correspondence, forms, and documents to the correct department or division, one can expect more immediate attention. Filing a form or document addressed to the Commission, generally, without specifying a specific Department or Division within the Commission is sufficient. Failure to direct forms and documents to a specific department or division will not affect the filing date.

Additionally, the following Forms may be served electronically pursuant to Regulation 67-211: Forms 15(III), 21, 50, 51, 52, and 53. Also, Hearing Notices may be served electronically.¹¹

The Commission serves orders electronically in addition to the other means referenced above.¹²

III. Employer's Notice and Report of Injury

All employers in South Carolina are required to post a notice in their place of business informing the employee the business operates under the Workers' Compensation Act and what to do in the event of an injury.¹³ The notice should also identify the employer's insurance carrier. In the event the employer's insurance carrier's name is not on the notice, the Commission's Coverage and Compliance Department can provide the name and address of the employer's insurance carrier upon written request.¹⁴

When an injury occurs, the employee is required to notify his employer.¹⁵ If the injury requires minimal medical attention at a cost not to exceed $500, and does not cause more than one lost workday or permanency, no written report is required, "provided the employer maintains a record as prescribed by the Commission and pays directly the incurred cost of the resulting medical attention."¹⁶ All other injuries must be reported in writing pursuant to the following guidelines:

(1) An injury for which there is no compensable lost time or permanency and the medical treatment does not exceed an amount specified by regulation of the Workers' Compensation Commission ($2,500) must be reported annually on a Form 12M by April 1, of each year.¹⁷
(2) An injury involving compensable lost time, medical attention in excess of the limit established by the Commission ($2,500), or the possibility of permanency must be reported on a Form 12A within ten business days after the occurrence and knowledge of it, as provided in Section 42-15-20.¹⁸

With regard to an injury of a South Carolina National Guard member, the reporting periods must be counted from the date the South Carolina National Guard has knowledge the federal government has denied benefits to the member or that benefits may be due under the Act.¹⁹ The report of injury, Form 12A, Employer's First Report of Injury (ACORD Form 4), states the employer's name, nature and location of the business and the name, age, sex, wage, and occupation of the injured worker. The Report also includes the date and hour of the injury and the nature and cause of the injury, among other things. The employer prepares and files the Form 12A with its insurance carrier.

When an injury requires less than $2,500 in medical treatments and does not result in compensable lost time or permanency, the employer's representative must retain the Form 12A filed by the employer for two years. Additionally, the representative must make a report of the injuries in this category to the Commission's Accident Reporting Division annually as required in Regulation 67- 412.²⁰

If the injuries require more than $2,500 or result in compensable lost time or permanency, the employer's representative must send the Form 12A to the Accident Reporting Division within ten business days after the occurrence and the employer's knowledge of the injury. If the injury was previously processed under Section C(1) above, the Form 12A shall be filed with the Accident Reporting Division within ten business days of the employer's representative's knowledge that the...