In 2018, the SC Court of Appeals defined the affirmative defense of laches as neglect for an unreasonable and unexplained length of time under circumstances affording opportunity for diligence, to do what in law should have been done. In other words, laches is an unreasonable delay in pursuing a claim that results in prejudice to the other side. It is an affirmative defense, meaning that it must be plead in a timely filed Form 51 and that the defendants must prove negligence, opportunity to act sooner, and material prejudice, injury, or disadvantage to the defendants (usually the moving party.) Under the requirement imposed by the Act that construction must be in favor of coverage, laches is somewhat hard to prove to the satisfaction of a hearing commissioner as it can be a complete bar to benefits otherwise available under the Act.
Laches can be triggered in a situation where, for example, an accident is alleged to have occurred in 2012, but no Form 50 is filed until just prior to the 2 year statute of limitations. The claim is denied at that time. The Form 50 is withdrawn in 2014 prior to the hearing without explanation and not refiled until the end of 2019, 5 years after it had been withdrawn. During that time, the Claimant has undergone two operations on the injured body part and has returned to work for a different employer. The employer’s company had dissolved long ago, and records documenting the Claimant’s payroll history, personnel file, contemporaneous investigation into the accident, and identification of potential witnesses to the event have long since vanished.
In the scenario described above, Defendants have not been afforded the opportunity to direct medical treatment, or conduct timely and adequate discovery prior to the first hearing. Additionally, the employer was difficult to track down and names of material witnesses who might have supported a full denial could not be recalled.
Under the Workers Compensation Act in South Carolina, a Form 50 filing a claim generally has to be filed within two years of the date of accident to toll the statute of limitations (with some variations for repetitive trauma and occupational diseases). After that point, however, the Commission is silent on what constitutes unreasonable delay in pursuing the claim. Fortunately, scenarios like the one described above don’t happen often and there is no cut and dried formula for addressing them. Defense strategy and ultimate outcomes are determined on a case by case basis. Should such a scenario with an accident date remote in time present itself, do not shelve it and hope it will go away, as it probably will not. A proactive and aggressive defense strategy will be more likely to produce a favorable result.