10
May

All workers’ compensation commissioners are appointed by the governor in South Carolina. Unfortunately, the appointments have often been based on political payback or on the conservative or liberal leanings of the persons appointed. That is unfortunate because all commissioners should be neutrals with no particular leaning. The governor of South Carolina may be limited in power, but not when it comes to the Workers’ Compensation Commission. The governor has the power to completely shape the commission by making all appointments of commissioners. The appointed commissioners decide workers compensation cases that go to hearing. Although it is somewhat of a generalization, for the most part, Republican governors tend to appoint more business/insurance leaning commissioners and Democratic governors tend to appoint commissioners who lean more toward the injured worker. South Carolina cases have held that the Workers’ Compensation Act should be construed in favor of coverage, and any reasonable doubts as to construction should be resolved in favor of the claimant (injured worker). Therefore in baseball terminology, the tie or close case is supposed to be decided in favor of the injured worker’s case being compensable.

Also, in South Carolina workers’ compensation commissioners are not required to be lawyers. When the workers compensation act was enacted in the 1930’s the reason for not requiring commissioners to be lawyers may have been the idea that it would be good to have former workers or employers serve. However, today I believe the system would work better if all commissioners were required to be lawyers.

What do to do in a worker’s compensation case when you first see a doctor and in follow up appointments and some back ground about how the system works.

If you are injured on the job you need to do the following things unless it is a very minor injury that does not require medical treatment:

1. Report the injury to your supervisor. Tell the supervisor in detail what happened and what your injury is. Report the accident as soon as possible particularly if the accident is significant. In South Carolina there is no requirement to give written notice of an injury/accident; in North Carolina you have to give notice in writing. For the injured person giving notice of the accident in writing is a good idea, particularly if you keep a copy of the notice. This is because you then have a written record of giving notice. To go one step further if you give written notice have your supervisor sign your copy of the notice paper so that later if his story changes you have proof that you reported the claim.

In South Carolina an injured worker has 90 days to report the injury. However, I can tell you that if you wait that long or anywhere near that long to report your injury there is going to be a real question of why you waited so long and if the accident really happened. In North Carolina you must report the accident in writing within 30 days of the accident. You should use the Form 18, which can be found on the North Carolina Industrial Commission website.

1. When you first see a doctor for your work-related injury whether you go on your own or are sent by your company it is extremely important that you give the following to the doctor:

1. a very clear history of how you were injured,
2. that you were injured at work,
3. Where you work (particularly if you work two jobs)
4. when you were injured, including the date an approx. time,
5. and details as to the part(s) of your body that were injured and the symptoms you are having and have been having since the injury.

**** This is extremely important. I have seen many cases denied because the injured worker did not mention that the accident took place on the job, did not mention all body parts injured, or made statements of the accident being made worse while walking in Wal-Mart, etc. You need to give a short statement to the doctor. I believe it is a good idea to put all of the information listed above on paper, give a copy to the doctor, and keep a copy for your records. I say that because doctors do not always put all of what you tell them or state correctly what you told them in their records. If you write it down and give the doctor a copy, you later have evidence of what you told the doctor.

1. Keep telling the treating doctor(s) in detail of the problems and symptoms that you are having from your work accidents in follow up appointments. Often you may hurt more than one body part. For instance the lower back and a knee. Many times the workers’ compensation insurance company may accept one of the body injuries as being related, but not the other. When this happens the treating doctor very frequently will not mention the non-accepted body part injury. You may wonder why. One reason is that they are not getting paid to treat you for the non-accepted body part and will not get paid for examining it.

I tell my clients to put the problems of each body part in writing and give it to the doctor at every appointment and keep a copy of the form and the date it was given to the doctor.If you do that you at least have evidence that you continued to complain about the non-accepted injured body part even though the doctor failed, intentionally or not, to note your complaints in the treatment note(s).

1. In South and North Carolina the workers’ compensation insurance company for the employer choses the doctor(s) who will treat you for your on-the-job injuries. I do not believe that is right for a couple of reasons: 1. There are clear conflicts in the doctor/patient relationship if the insurance company choses the doctor and has control of your treatment; 2. Most patients are going to want to go to a doctor who family members or friends have had good outcomes with. However, until your legislature decides to give workers the choice of doctor for treatment there is not much you can do about this. I urge you to try to get along with your treating doctor. Be cooperative, be straight with the doctor, and do not exaggerate or downplay symptoms. Believe it or not, I probably see more clients downplaying their symptoms than exaggerating them. Neither is good for your case.

An injured worker has the right to be treated by their own doctor, but normally they have to pay for that treatment themselves. One exception would be if their case was wrongfully denied and the person went for treatment on their own, a commissioner could order the insurance company to pay for the treatment if the case was found to be compensable.