Chapter 8 Benefits

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

Chapter 8 Benefits

I. Compensation Benefits

A. General

Benefits provided by the South Carolina Workers' Compensation Act can be divided into the following five categories: (1) temporary disability benefits; (2) permanent disability benefits; (3) death benefits; (4) disfigurement benefits; and (5) medical benefits.

B. Temporary Disability

1. Temporary Total and Temporary Partial Compensation

There are two types of temporary disability benefits — temporary total (TTD) and temporary partial (TPD). As the names suggest, benefits for TTD apply when "the incapacity for work resulting from an injury is total"¹ and benefits for TPD apply "when the incapacity for work resulting from the injury is partial."² Article Five of Chapter 67 of the Workers' Compensation Regulations outlines the following: (1) procedural aspects of reporting voluntary agreements to pay TTD and TPD; (2) the various statutory provisions regarding temporary compensation located throughout Title 42; and (3) a comprehensive overview of payment of compensation.

Temporary compensation benefits are incurred on the eighth calendar day of incapacity and from the first day of incapacity if the injury results in incapacity for more than 14 calendar days. The seven- and 14-day periods need not be consecutive days. It is important to note that payment and acceptance of temporary compensation files a workers' compensation claim³ Generally, the employee is entitled to TTD after the waiting period (discussed infra) has been tolled and the employee is incapable of working at all due to the injury.

In Lee v. Bondex, Inc., the claimant suffered an injury that was initially admitted, but his employer eventually stopped paying for his medical care and he filed a claim for TTD. The hearing commissioner denied the claim, but the panel reversed. The panel also found that because the employer did not offer the claimant any light-duty work after he had been given some work restrictions, he was entitled to TTD. As to TTD, the employer argued that to be entitled to TTD, you had to prove that the incapacity for work was total; meaning, a claimant must actively go into the marketplace and seek a job that does not conflict with his work restrictions.

The COA rejected this argument. The South Carolina Court of Appeals (hereinafter "COA") said that this was not a claim for permanent disability and that for TTD, a claimant must prove only that work restrictions prevent him from performing the job he had before the injury and that his current employer had not offered him light-duty employment. The COA said that "[f]or sound policy reasons, the workers' compensation system encourages an injured employee who is still able to perform light-duty work to continue working for his current employer until he reaches maximum medical improvement and then, if possible, to return to his previous position." The COA was split, however, on whether the case of Coleman v. Quality Concrete Prods, Inc, 245 S.C. 625, 142 S.E.2d 43 (1965) applied to this case and ultimately decided 2 to 1 that it did not because Coleman dealt with permanent disability and not TTD benefits.⁴

The employee is entitled to TPD when the employee can return to work at "light duty." When an employee is working light duty, he or she is performing less strenuous duties, possibly working less hours, and possibly earning a lower wage than before the injury. Accordingly, when a work-related injury causes a reduction in pay, the employee is entitled to receive temporary partial compensation.

a. The Waiting Period

Section 42-9-200 requires a seven-day waiting period for temporary disability cases. This section states "[n]o compensation shall be allowed for the first seven calendar days of disability resulting from an injury, except the [medical] benefits provided for in § 42-15-60; but, if the injury results in disability of more than fourteen days, compensation shall be allowed from the date of disability." Accordingly, absence from work due to the injury for seven calendar days, including Saturday and Sunday, tolls the waiting period. Absence from work due to injury on the 15^th calendar day entitles the employee to compensation for the first seven calendar days of work missed.

The seven- and 14-day periods are counted as calendar days, not consecutive days.⁵ The day of the injury is the first day of incapacity unless the injured person receives full pay for the day. In that event, the first day of incapacity is the day following receipt of full pay from the employer.⁶ The day or days lost because of the inability to work on account of the injury are counted in the waiting period even though the days may not be consecutive.⁷

When the employer's representative begins to pay either TTD or TPD compensation, or salary in lieu of temporary compensation, the employer's representative shall complete Section 1 ofthe Form 15, Temporary Compensation Report.⁸ This completed Form 15 must be filed with the Commission's Claims Department within ten days of the date of first payment of compensation.⁹ Disability is presumed to continue until the employee returns to work or compensation is otherwise suspended or terminated according to Section 42-9-260.¹⁰

b. Maximum Duration of Compensation

Section 42-9-10 provides a cap of 500 weeks of compensation benefits for TTD cases.¹¹ Section 42-9-20 imposes a cap of 340 weeks for TPD cases. In cases where the partial disability commences after a period of total disability, the period of total disability is not deducted from the 340-week cap.

2. Maximum Medical Improvement

a. General

The date of stabilization is a term neither found in the Workers' Compensation Act nor in common law. It is however, descriptive of a more apt term, "Maximum Medical Improvement" (MMI). The date of MMI will often determine the period during which the claimant is entitled to temporary total compensation.

In Smith v. South Carolina Department of Mental Health,¹² our Supreme Court specifically addressed the issue of whether MMI is the appropriate point at which to terminate TTD benefits in favor of permanent disability benefits. The court in Smith found MMI is an appropriate point to terminate TTD benefits, affirming the COAs' determination that the employer was entitled to stop payment of TTD benefits under Regulation 67-507(c) (3)(a), upon a showing that the claimant had reached MMI.

Similarly, in Anderson v. Baptist Medical Center and Palmetto Hospital Trust Fund,¹³ our Supreme Court upheld the COAs' decision regarding MMI. The claimant had alleged multiple injuries although only a left knee injury was admitted. The claimant's treating physician released the claimant at MMI with regard to her left knee; however, he did not address her other alleged injuries. Based upon the doctor's report, the employer/carrier filed a Form 21, Request to Stop Payment of TTD benefits. However, the claimant argued the employer was not allowed to stop payment of TTD benefits as a statement of MMI regarding her other alleged injuries was also necessary. The court disagreed with the claimant's argument, noting the Commission had found the claimant had failed to prove she sustained compensable injuries to any body part other than the left knee.

Accordingly, a claimant is entitled to temporary total compensation for the period during which incapacity for work is total.¹⁴ When the claimant reaches MMI it is hoped the claimant is no longer temporarily totally disabled and is capable of returning to work without restriction. The Regulations define "Return to work without restriction" as follows:

A statement of the authorized health care provider about the capacity of the claimant to meet the demands of a job and the conditions of employment. The determination must be made when the claimant's physical condition is static or is stabilized with or without medical treatment. The determination is appropriate when there are no physical limitations on the claimant's ability to perform the same or other suitable job as the claimant performed before the injury.¹⁵

In addition to determining the period for which the claimant is entitled to TTD, the concept of MMI may also be important in determining the claimant's entitlement to extended medical treatment.

The Act allows medical benefits beyond a ten-week period after the date of the injury only where the treatment will tend to lessen the period of disability.¹⁶ Lastly, a claimant is generally not entitled to an award for permanent benefits until he has reached MMI. For instance, a scheduled injury award for disfigurement which occurs prior to the date of MMI will be reversed.¹⁷

This Regulation places the burden on the health care provider to issue an opinion stating the claimant is able to return to work at full capacity when stabilization of the claimant's health condition is achieved. Stabilization is achieved with or without medical treatment when in the opinion of the health care provider the claimant is "employable." The American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) define "employable" as the capacity of the individual to meet the demands of his job and the conditions of employment.¹⁸ It is, of course, difficult to determine with mathematical certainty the date of MMI.¹⁹

In McCollum v. Singer Company,²⁰ the court of appeals rejected the employer's contention that the circuit court erred in determining the claimant attained MMI without considering the need for referral to pain management as the court noted there was nothing in the record to indicate the employer had sought pain specialists for additional treatment. The court of appeals noted it found no request by the employer for such a referral in the record.

In McMahan v. SC Dept. of Education, the injured worker was a school bus mechanic who had a bus fall on top of him, crushing his spine. He later died from an unrelated heart condition. After the death, disputes arose about whether he had been at MMI prior to...