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Back to the Big Bad Change of Condition for the Worse

J. Steven Rodenberg

I blogged on June 5, 2019 about the opinion of the Appellate Panel of the South Carolina Workers’ Compensation Commission finding that the one-year statute of limitations requirement for the filing of a change of condition for the worse is not satisfied upon a simple notification by the claimant of her desire to return to the treating physician within one year of the last receipt of compensation, but that a Form 50 must be filed within one year of the date of last compensation in order to comply with the statute. On July 24, 2019, the Supreme Court of South Carolina issued an opinion addressing the timing requirement in S.C. Code § 42-17-90 (A) for a claim based on a change of condition.

In Tucker v. South Carolina Department of Transportation, the claimant received his last payment of compensation on November 28, 2012. On May 2, 2013, within 12 months of claimant’s receipt of last payment of compensation, claimant filed a Form 50 asserting a claim for a change of condition for the worse, but did not request a hearing. On July 30, 2014, more than 12 months after claimant’s receipt of his last payment of compensation, claimant filed a second Form 50 asserting a claim for a change of condition for the worse and requesting a hearing. The employer and carrier defended the claim on the basis that claimant did not comply with the timing requirements of § 42-17-90(A), asserting that claimant must request a hearing within 12 months to satisfy the timing requirement.

The Supreme Court noted that § 42-17-90(A) is ambiguous with respect to the timing requirement. The Supreme Court found there was no basis in the law for the employer/carrier’s proposition that the date a claimant requests a hearing is determinative of whether a claim for a change of condition is timely. The Supreme Court further stated that the filing of a Form 50 to initiate a claim for a change of condition is the event that must occur within 12 months of the last payment of compensation to meet the timing requirement of § 42-17-90(A).

The Supreme Court went on to include additional language which may cause the Commission to act differently when a Form 50 asserting a claim for a change of condition for the worse is filed. The Supreme Court stated that the fact that a claimant does not request a hearing does not mean the claim will sit unattended. The primary goal of the Workers’ Compensation Act is to provide quick and efficient resolution of work-related injury claims. The Commission shares with the parties the responsibility to meet that goal. No claim may be allowed to sit while the Commission waits for a party to request a hearing. Even if a claimant does not request a hearing, the Commission must act reasonably to move the claim toward a quick and efficient resolution. The Supreme Court also noted that if the Commission does nothing to move the claim toward resolution, the employer may request a hearing or seek to protect its interests in some other fashion.

The language of this opinion definitely puts more of an onus on the Commission to make sure a claim for a change of condition for the worse is timely heard. Hopefully, the Commission will respond appropriately if and when a claimant files a claim for a change of condition for the worse without requesting a hearing.

I also see another potential issue based on this opinion. I believe it is generally accepted that in order to file a claim for a change of condition for the worse, the claimant must have a medical report confirming a change in the claimant’s condition. However, the Supreme Court has determined that a claim for a change of condition for the worse may be filed without actually requesting a hearing. The problem or issue is that Reg. 67-602(C) states “in a claim involving a change of condition, the moving party must attach to the hearing request form a medical report(s) indicating a change in the claimant’s condition.” That language does not require a medical report be attached to a simple notice of claim, although the notice of claim and hearing request forms are actually one and the same with the only difference being which box is checked, box 13 not requesting a hearing or  box 14 requesting a hearing. Only time will tell how the Commission reacts to this opinion, but it should be interesting.