Although we typically use our blog to report news and developments in SC Workers’ Compensation Law, from time to time it helps to get back to basics. We hope our “Workers’ Comp Fundamentals” series will be useful as a learning tool for those who are relatively new to the world of workers’ compensation, while providing a good refresher for the more “seasoned” practitioners among us. In today’s entry we will review permanent disability awards under the South Carolina Workers’ Compensation Act.
If a doctor assigns an employee a permanent physical impairment rating when the claimant reaches maximum medical improvement, the employee is entitled to an award for permanent partial disability. In South Carolina, a claimant with permanent medical impairment is entitled to an award of permanent partial disability, even if the claimant has returned to the same job with no restrictions. The scheduled value of injuries to each body part is listed in either S.C. Code Ann. § 42-9-30 or regulation 67-1101.
If the matter is heard by a commissioner, the commissioner determines the amount of disability. The amount of the disability will normally be higher than the impairment rating. There are no guidelines to determine exactly how much the disability award will be. A hearing commissioner has great discretion in determining the award. As a general rule of thumb, the commissioners will often award permanent disability equal to one and a half or two times the medical impairment. However, this amount can vary greatly depending on the circumstances of the case and the amount of the impairment rating. Different people with the same injuries and ratings could be awarded a different amount of disability. The claimant’s age, education, and work experience are some of the factors that the commission will consider in determining the extent of permanent disability. For example, a construction worker with a high school education and permanent restrictions due to an injury will probably receive a higher disability award than a college educated office worker with the same injury and restrictions.
A claimant with permanent impairment involving more than one body part or greater than 50% disability to the back may be deemed permanently and totally disabled. A claimant is entitled to permanent and total (P&T) disability benefits when the claimant is unable to work at his or her previous job or at any other employment which is reasonably available in the economy. The maximum weeks allowed for permanent and total disability is 500 weeks. Temporary benefits (TTD or TPD) paid during the claim will be subtracted from the 500 week total. Benefits are generally paid in a lump sum at the commuted value/present value. The Commission is currently using a 2.25% per annum rate for the purposes of determining present value for lump sum awards. In cases involving paraplegia, quadriplegia, or physical brain damage, there is no 500-week cap, and benefits are payable for the life of the claimant.
Finally, a claimant with two or more injured body parts who is not permanently and totally disabled may elect to be compensated for partial wage loss. Partial wage loss is determined by comparing the pre-injury average weekly wage with the post-injury average weekly wage. The difference between the two is multiplied by .6667. The claimant is entitled to receive the resulting weekly amount for up to 340 weeks. For a partial wage loss award, there is no credit applied for any temporary benefits that have been paid. The claimant must elect between wage loss and scheduled disability and cannot get both.
If an employee dies as the result of an injury, his dependents are entitled to 500 weeks of benefits. An employer/carrier is required to provide an investigation to identify all of the deceased employee’s dependents. A dependency hearing is required before benefits can be paid to the dependents of the deceased employee.