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We Hear You… Really

Robert Gruber

The right to be heard is one of the most basic and sacrosanct rights that we enjoy as Americans. That is unless, of course, you are an employer defendant in a denied workers’ compensation claim.  If you are wondering when this situation may come up, consider the following.

A claimant files a claim, and you as the defendant file a denial. But, for whatever reason, the claimant is not ready to adjudicate his claim. Often “not ready” means that the claimant has gone to work for another employer, so the claimant’s lawyer must wait until the claimant’s injury gets bad enough to take the claimant out of work. Other times, the claimant’s lawyer cannot get the medical evidence they need to build their case, or the claimant’s lawyer is simply lazy. This should not be a problem for the defendant because you have a right to present your defense to the Commission when you are ready, correct? The answer from the Commission seems to be “not necessarily.”

YCRLAW attended the South Carolina Defense Trial Attorneys Association Meeting in Asheville, North Carolina this past July, and this issue came up during one of the workers’ compensation breakout sessions. All in attendance agreed that there are basically two ways for a defendant to file for a hearing in a denied case. First, the defendant can file a Form 21, which is used to (1) terminate or suspend temporary total disability payments, (2) determine if compensation is due under §§ 42-9-10. 42-9-20 or 42-9-30, (3) request a credit for overpayment of temporary total disability compensation or (4) to determine the amount of compensation for claims involving a fatality.

The second way to file for a hearing in a denied case is to file a petition under S. C. Code Ann. §42-17-20. This section is entitled “Hearing before commission on compensation payable” and essentially states that if the employer and the injured employee cannot reach an agreement with regard to what compensation is due under the statute within 14 days after the employer has knowledge of the injury (or death), either party “may make application to the Commission for a hearing in regards to the matter at issue and for a ruling later on.” YCRLAW encourages all readers of this Blog to read that statute, because we submit it is crystal clear. If the parties cannot come to an agreement on what is due, either party may file for a hearing, and the Commission must schedule the hearing and must make findings regarding the issues presented. But, for the commissioners in attendance during that breakout session, the issue and the statute are not so clear.

The Commission seems to believe that defendant employers may be able to get a hearing on a denied case by filing a petition under § 42-17-20. The Commissioners said (1) that the petition must be labeled “petition” so that it does not get scheduled as a motion hearing and (2) that the petitioner should set forth, with as much specificity as possible, the circumstances that led to the disagreement with regards to compensation. But, the commissioners added, it would be up to the Judicial Department to schedule a hearing on that petition. The commissioners flatly rejected the notion that defendant/employers had a right to a hearing in a denied case.

I personally believe that, as party litigants, defendant/employers should be able to present their defenses and denials just as employee/claimants can present their cases. If one reads the statute, one will see that there is nothing contained in the statute or in the regulations that prohibits defendant/employers from requesting hearings in denied cases nor is there anything that prevents the Commission from scheduling those hearings. But, the current Commission has a slightly different view and, as litigants, we must take their direction. So, if you have a denied claim hanging around and you want a hearing, please call us. We can hear you, and we will listen.