South Carolina Lawyer
SC Lawyer, May 2008, #2.
The South Carolina Second Injury Fund
South Carolina LawyerMay 2008The South Carolina Second Injury FundSunrise Sunset1972 - 2013By Latonya Dilligard EdwardsThe Legislature recently passed the Workers' Compensation Reform Act (the Act), which calls for the termination of the South Carolina Second Injury Fund (the Fund). The Fund was created to advance the hiring and retention of disabled workers. City of Greenville v. South Carolina Second Injury Fund, (S.C. App. 2000) 339 S.C. 141, 528 S.E.2d 91. Employers who hired disabled workers received a level of protection because they were not penalized with additional insurance costs when workers with preexisting conditions were subsequently injured on the job. The Act provides a timeline to aid in the Fund's winding down and ultimate termination. Employers and carriers should take heed of these deadlines because failure to comply will bar reimbursement. Carriers are defined as insurance carriers, self-insurers and the State Accident Fund. S.C. Code Ann. § 42-7-310(d)(2).
July 1, 2007
The Act provides important changes regarding notice, preexisting conditions and assessments that became effective July 1, 2007. Section 42-9-400(f) provides that this notice must be provided before carriers have paid claimant 78 weeks of compensation. This notice requirement is not new; however, the contents of written notice are. Prior to the recent amendments, § 42-9-400(f) only required carriers to provide written notice to the Fund before paying 78 weeks of compensation. Under the prior provision, the written notice letter usually contained general information such as the claimant's name, date of injury, the employer and the carrier. However, the recent amendments to § 42-9-400(f) require that specific information be included in the written notice to the Fund. Notice must include the date of accident, employee's name, employer's name and address, carrier's name and address as well as the National Council on Compensation Insurance Code (NCCI), carrier's claim number, policy number and policy effective date. The Act further provides that, if the notice to the Fund is lacking any of the listed information, recovery is barred. S.C. Code Ann. § 42-9-400(f)(i)-(iv). In practice, the Fund will consider a noncompliant notice letter sufficient to meet the notice requirement. However, carriers who submit a noncompliant notice letter before the payment of 78 weeks of compensation should ensure that this defect is cured immediately because a reimbursement claim will not be accepted unless all information pursuant to the new notice requirements has been received.
Another issue worthy of mentioning is the fact that, while the Act applies to dates of injury on and after July 1, 2007, § 42-9-400(l) & (m) require that carriers and the Fund report certain data to NCCI. The ...