Top 3 Things to Know in South Carolina Workers’ Compensation Claims

1. South Carolina’s Workers’ Compensation Laws Provide Medical Treatment, Payment While Out of Work, and Compensation for Permanent Injury

Immediately notify your employer and supervisor after any on-the-job or work-related injury, and document the communication. Your employer should notify its workers’ compensation insurance company and send you to a doctor. Often the employer will not report the injury or provide you with appropriate medical attention. Or the employer will promise to pay the medical bills and help you while you are out of work. But you have rights under the South Carolina Workers’ Compensation Act.

The South Carolina Workers’ Compensation laws help injured workers with three primary benefits. The first and most urgent and obvious is medical attention, but the injured worker is entitled to all necessary medical care to lessen the degree of disability or maintain one’s plateaued condition in the future. Injured workers are also entitled to money, both while out of work and at the end of a claim for permanent injury, and otherwise, depending on the circumstances.

Benefits from South Carolina Workers’ Compensation claims can be significant, and following a life-changing injury they can be critical to an injured worker and his or her family. Do not overlook their importance or significance. Handling any legal matter can be difficult, particularly for an employee who has just been seriously injured and who is not an attorney and does not know his or her rights under the South Carolina Workers’ Compensation laws or how to adequately represent him or herself with the South Carolina Workers’ Compensation Commission.

You should be able to consult with an attorney at no charge to learn your legal rights and to ensure that you are maximizing the compensation and benefits you are entitled to under the law. The South Carolina Workers’ Compensation system is a “no fault” system. If you retain an attorney, the attorney should work for you without any charge up front and should receive a percentage as compensation of the monies obtained on your behalf at the end of your case either in settlement or by order of a South Carolina Workers’ Compensation Commissioner.

2. You May Have Additional Claims for Unpaid Wages or Unpaid Overtime Wages, Retaliation for Filing Your Workers’ Compensation Claim, or Against a Third Party Like an At-Fault Driver

Retaliation for filing a South Carolina Workers’ Compensation claim is often a topic for discussion, naturally, but I often also identify claims for unpaid wages or unpaid overtime wages and claims against third parties other than the employer. It is important to consult with an attorney who can not only represent your interests in your workers’ compensation claim, but also to identify any other claims and protect those interests as well.

An employer can certainly terminate an employee at any time and for any reason, but that does not mean that the employer has not broken a law or breached a contract. The necessary remedy presumably being to file a lawsuit for breach of contract and/or to enforce the contract, for reinstatement if sought, and for damages, or for violation of any particular statute.

South Carolina is an “at will” employment state, meaning that an employee and employer can terminate the employer-employee relationship at any time and for any reason, so long as it is not an illegal reason, and absent any contract for employment otherwise. An employer who demotes or terminates an employee in retaliation for filing a workers’ compensation claim with the South Carolina Workers’ Compensation Commission should accrue an additional civil claim for the retaliation. However, that claim is brought in a separate civil suit, not with the Workers’ Compensation Commission, and the attorneys at Naert & DuBois are experienced in identifying and bringing those claims on behalf of injured workers in the circuit courts of South Carolina.

Often the employee will not receive his or her wages from the last pay period prior to the accident, which is an additional claim under the South Carolina Payment of Wages Act, which Naert and DuBois have experience in bringing on behalf of employees. Unpaid overtime wages may also be identified, particularly in situations where an employee is misclassified as an independent contractor and issued a 1099 instead of a W2; where an employee is paid cash; where an employee is paid a straight hourly rate for all hours worked up to 40 and also all hours worked beyond 40 in any given workweek; and employees paid a “salary” and therefore not paid any additional or premium 1.5x overtime wages for hours worked more than 40 in any given workweek.

Although the South Carolina Workers’ Compensation system is generally an exclusive remedy, you may bring a separate civil claim or suit against a third party tortfeasor, generally. Such as in the case of a delivery driver who is rear-ended at a red light. The delivery driver should maintain the workers’ compensation claim, and should also bring a claim against the at-fault driver and investigate other coverage available such as under the insurance policy of the company vehicle the delivery driver was driving. The cases should be resolved in a particular order, workers’ compensation first, and the workers’ compensation insurance company will generally assert a lien against the third party claim. The lien can be waived by agreement with the workers’ compensation insurance company, usually for value in a final settlement of the workers’ compensation claim. It is a complex process, without doubt, with many more requirements, but the ultimate result is that both claims should be maintained, and both to the benefit of the injured worker. Naert & DuBois has experience representing injured workers in both the workers’ compensation claims as well as the third party claims, including the resolution of the workers’ compensation lien on the third party claim.

3. Everyone Has Rights, Including Those Paid in Cash, Misclassified as Independent Contractors, Undocumented, etc.

Oftentimes South Carolina injured employees are misclassified as independent contractors, usually as an effort by the employer to save money in the form of lower insurance premiums and passing on the employer-side taxes to the employee through the issuance of a 1099 as opposed to a W2. Just because you are called an independent contractor, have a signed written independent contractor agreement, and are paid by 1099 does not mean that you are, in fact, an independent contractor.

Whether a worker is an employee or independent contractor is a question of law that depends upon your specific factual circumstances. The primary element is that of control by the employer of the employee, but you should absolutely speak with an attorney to evaluate your facts and circumstances surrounding your possible misclassification. Employees are able to obtain workers’ compensation benefits, independent contractors are generally not entitled to workers’ compensation benefits, so the question of your status as an employee or independent contractor is critical.

Workers paid in cash only may be concerned that they have no proof of employment or of their wages, or of their injury for that matter, but that is a concern for the attorney, not for the injured worker. The attorney should work with you to present your position with your facts and assertions to opposing counsel, insurance adjuster, or South Carolina Workers’ Compensation Commissioner. The employer or co-workers will often corroborate at least certain aspects of the details of hours of work, days of work, how much the worker was paid, the rate of pay, employment with the employer, and other general details through depositions or in-person testimony at a trial. Furthermore, the attorney can gather evidence such as e-mails, text messages, phone records, written and electronic correspondence, and otherwise to support your case.

Undocumented workers are also entitled to workers’ compensation benefits in South Carolina if injured on the job. Were you injured while working in the State of South Carolina? Or, is your employer’s primary place of business located in South Carolina? Or, did your employer hire you while you were physically present in South Carolina, such as by phone?

If you were injured on the job, contact us now to schedule your free consultation with Zach Naert or Joe DuBois to learn your rights. Our principal office is located at 22 New Orleans Road, Suite 1, Hilton Head Island, South Carolina 29928. Our related primary practice areas are workers’ compensation, car accident injuries, and overtime/retaliation and other employment-related claims and lawsuits in State and Federal Court. Please do not consider any of the information in these blogs as legal advice. Every claim is unique and requires specific consideration by an attorney. Do consult with an attorney at your earliest opportunity. There are time requirements related to legal claims, such as statutes of limitations which state that a claim must be brought timely and otherwise you risk forever losing your rights, so it is critical to immediately consult with an attorney to protect your rights from being prejudiced or lost forever.

ATTORNEYS JOSEPH DUBOIS AND ZACH NAERT
Hilton Head Office
(Principal Office)
22 New Orleans Rd #1
Hilton Head Island, SC 29928

Okatie Office
110 Traders Cross
Okatie, SC 29909

Mailing Address
Post Office Box 7228
Hilton Head Island, SC 29938

Telephone: (843) 686-5500
Facsimile: (843) 686-5501
E-mail Zach Naert
zach@lowcountrylegal.com
E-mail Joseph DuBois joe@lowcountrylegal.com

HILTON HEAD OFFICE

OKATIE/BLUFFTON OFFICE