Posts Tagged ‘workers compensation’

South Carolina Coronavirus and Workers’ Compensation

Can I File a Workers’ Comp Claim if I Get the Coronavirus?

Section 42-1-160 of the South Carolina Workers’ Compensation Act defines an injury in South Carolina Workers’ Compensation law. An “injury” means only an injury arising out of and in the scope of employment and shall not include a disease in any form, except when it results naturally and unavoidably from the accident. Diseases are further defined by Section 42-11-10 of the Act.

In short, the South Carolina State Legislature did not intend for community diseases such as the flu, colds and potentially the Coronaviris (COVID-19) to be deemed work related (compensable) under the South Carolina Workers’ Compensation Act.

South Carolina Workers’ Compensation Diseases

While the COVID-19 / Coronavirus is potentially a disease, it is not likely that it is considered a disease within the definitions of the South Carolina Workers’ Compensation Act. Section 42-11-10 addresses “Occupational Disease” which means a disease arising out of an in the course of employment that is due to the hazarsd in excess of those ordinarily incidnet to employment and is peculiar to the occupation in which the employee is engaged.

In other words the disease must be specific to the type of job and be because of that job. Most occupational disease claims are with employment types where the employee is around chemicals, fumes, silica, asbestos and specific chemicals or substances that are because of the job in which they are employed. It is unlikely that the intent was to compensate an employee for community based illness or disease like the Coronavirus / COVID-19 as that would give rise to flu claims, cold, an other illness. In addition, the Coronavirus is not peculiar to employment. You can contract this anywhere thus the reason the government has discouraged gatherings of greater than 100 people. It is not something you get just at your employer like if you were exposed to asbestos in the workplace and nowhere else.

What Do I Do About Work During the Coronavirus Pandemic

Employers seem to appreciate communication from the employees. If you are scared of contracting the illness and spreading it on then bring it to the attention of your employer. Depending on the type of employment that employer may be able to modify your job duties to alleviate some of your fears. You may be permitted to work from home. A face mask may be provided. Direct contact with other personnel may be limited. You may also ask you employer if you have access to any paid time off through vacation, personal time, or through the Family Medical Leave Act that might cover you if you decide not to come to work. At the end of they day, you must do what is best for you but with every choice there can be ramifications including, but not limited to, unpaid time off, reprimands and/or termination.

Disclaimer

The Novel Coronavirus / COVID-19 presents novel legal challenges. The reality is that this is very new and everyone is still trying to figure it all out. Given that newness of these issues, this blog is for informational purposes only, is not intended to be relied upon and does not constitute legal advice. For advice specific to your situation you should contact a lawyer.

Injured on the Job? Here Are Some Answers

Injured on the Job? Here Are Some Answers

How Long Do I have to Report a Workers Comp Injury?

Under South Carolina Law you have 90 days to report an injury from the date you knew, or should have known, you had the injury.  Repetitive Trauma cases like carpal tunnel or others can be tricky as to the 90 day requirement. Note: the longer you wait to report any injury the more likely it is the insurance company will use the delay against you.

How Long Do I have to File  a Claim for Workers’ Compensation?

In South Carolina you have two (2) years to file a claim with the South Carolina Workers’ Compensation Commission. This is NOT the same as reporting it to your job or to the insurance company. You MUST establish a claim with the Workers Comp Commission in Columbia, SC. 

My Employer Says He Doesn’t Have Workers Comp Insurance. What do I do?

If an employer has 4 or more regularly employed workers then he/she must carry workers comp insurance coverage.  If they do not, then there is a State Fund set up to pay these claims and the employer will have to reimburse that Fund for your on the job injury.  You are still protected but will likely need a lawyer to assist.

My Employer Says I am an independent Contractor So I don’t get Workers Comp. Is this true?

Depends.  Many employers think that simply because they pay someone under a 1099 form that makes them an independent contractor. This is not true.  There is a test in South Carolina to determine if you are in fact an independent contractor (no comp) or a statutory employer (yes comp) and all centers around your boss’s control of you.  The 4 factors are:

  1. Direct Evidence of Right or Exercise of Control- I.e. Who sets work schedule, who tells you where to go, who tells you what to do, etc.
  2. Method of Payment- Cash, Check
  3. Furnishing of Equipment or Tools
  4. Right to Fire The Injured Worker

Who Pays My Medical Care for an On the Job Injury?

If the claim is accepted then the insurance company “should” pay 100% of all casually related authorized medical care. This means any doctors they send you to that they should pay the bill. If you are getting an invoice for any amount this may not be correct.

Can I Pick My Own Doctor?

Not if you want workers’ comp to pay the bill.  If it is an admitted case then you have must go to their doctor in order to have that bill paid. I am of the mindset you are always entitled to go to your own doctor but don’t expect that bill to be paid by the workers comp insurance carrier.

What if I have Other Questions that Aren’t Answered here?

That’s easy.  Schedule a free workers comp injury consultation where I will personally sit down with you and answer all of your questions.