My South Carolina Workers’ Compensation Recovery – Isn’t It Just A Formula?

injured worker filling out workers comp claim paperwork in South Carolina

By: Attorney Ken Harrell

Kenny Harrell is the managing partner of the Joye Law Firm. The Joye Law Firm has focused on handling South Carolina personal injury and workers’ compensation cases for over 50 years and has offices in Charleston, Columbia, Myrtle Beach and Clinton. Harrell has been recognized several times by Super Lawyers and by Best Lawyers as one of South Carolina’s top lawyers, both in the areas of workers’ compensation claimants’ and personal injury plaintiffs’ cases. Harrell formerly served as the president of the South Carolina Injured Workers’ Advocates organization and he has served as the co-chairman of this group’s legislative affairs committee for nearly 15 years.

A few weeks, ago, one of my law firm’s young workers’ compensation lawyers called me clearly hot and bothered. He told me that one of his clients had called him after a doctor’s appointment and claimed that the workers’ compensation insurance company’s nurse case manager had told him, “you know that your settlement is just based on a formula – by having a lawyer, all you’re doing is giving one-third of the money away.” (In a later piece, I will address the pros and cons of nurse case managers. Assuming that what this client told us was true – and I don’t doubt that it is as it’s not the first time we’ve encountered this – then this particular rehab nurse is spawned from Satan and she’s fortunate that our client didn’t fire us or we’d be suing her company and her for the intentional interference with a contractual relationship.)

Why Hire a Workers’ Compensation Attorney

The idea that an injured worker’s settlement is purely formulaic, and she will therefore not benefit from hiring an experienced South Carolina workers’ compensation lawyer is complete b.s., and I’d like to illustrate why that is the case. Before I do that, I’ll repeat what I’ve often said – most injured workers do not need to hire a lawyer. However, if you’ve been seriously injured on the job (i.e., the injury required surgery; the injury will leave you with significant permanent physical restrictions or future treatment needs; the injury will affect your ability to return to work doing what you did before you were hurt, etc.), then you owe it to yourself to get quality legal representation.

It is true that some aspects of a workers’ compensation settlement are more formulaic than a personal injury settlement, such as a car accident injuries settlement. For a car accident injuries claim, there is no pre-set floor or ceiling on the value of the case. There are dozens of factors that influence the value of a car accident injuries case. Also, while there is no ceiling on what can be awarded in one of these cases, the amount of available insurance coverage often serves as a practical ceiling on what can be recovered.

The South Carolina Workers’ Comp “Formula”

What is often referred to as the formula in a workers’ compensation case (see the reference to the rehab nurse in paragraph one) is the table of assigned values for specific body parts set out in section 42-9-30 of the South Carolina Workers’ Compensation Act and South Carolina Workers’ Compensation Commission regulation 67-1101. Under these tables, virtually every body part imaginable is giving a maximum value in terms of a number of weeks. For example, the pinky finger is valued at 20 weeks of benefits. The back is valued at 300 weeks (for most cases), although as I’ll cover below, the value can be increased to 500 weeks in some cases. If someone had their pinky cut off while working, the maximum scheduled member disability award that could be made would be 20 times their weekly compensation rate. If someone injured their back on the job and the doctor gave them a 10% impairment rating, the base value of their scheduled member disability award would be 30 weeks (10% of 300 weeks). Please note the emphasis on “base value” – this is just the starting point.

Given this formula, why should a seriously injured worker hire a lawyer? Let me count the ways.

1. Compensation rate

Your weekly compensation rate is the starting point for determining the value of your disability claim (scheduled member or otherwise) but it is often under-calculated by the insurance company. The standard statutory calculation says you determine this rate by adding up the gross wages during the four quarters before the quarter in which you were hurt and then dividing that by 52 weeks. Sounds simple. However, in our experience, many workers get cheated here. Were your overtime wages included? How about any bonuses you may have received? Suppose you just started on the job – what’s the correct calculation then? Many people have to work multiple jobs to make ends meet. Under South Carolina law, the wages from all of your jobs are supposed to be considered. What if you only recently received a significant raise in your pay? This can serve as the basis for a drastically higher compensation rate. Bottom line, this calculation is not as cut and dried as you might think. Not having your compensation rate properly calculated is the same as building a house on a faulty foundation.

2. There is no award for “impairment” under South Carolina’s workers’ compensation law – only for different forms of disability

Why is this important? Because the impairment rating (see the 10% of the spine rating referenced above) is just one factor for the commission to consider in determining what your scheduled member award should be. It is rare for scheduled member awards not to be higher, often much higher, than the assigned impairment rating. Our law requires the commissioners to consider numerous other factors. Some of these factors include your age (at age 55, I have remained pretty active, but I can attest that you don’t bounce like you used to when you were younger), educational background, your work experience, the permanent physical restrictions assigned to you, and others.

3. There can be a big difference when it comes to which set of American Medical Association impairment guides were used to assign your rating

Don’t get me wrong, your assigned impairment rating is an important factor in the settlement of a scheduled member disability case. The American Medical Association has now issued six versions of impairment guides. Perhaps I exaggerated a little when I referred to the rehab nurse above as the spawn of Satan but the authors of the 6th edition of the A.M.A. impairment guides (many of them with strong ties to the insurance industry) clearly warrant this description. South Carolina law does not mandate the use of a specific set of A.M.A. guides, or even that the A.M.A. guides be considered in assigning impairment ratings (although most South Carolina doctors do). In states which do require the use of a specific set of guides, the majority of them have rejected the 6th edition as being overly harsh and conservative to injured workers. For example, if you had a lumbar fusion surgery due to a work injury, the 5th edition of the guides would lead to a 28% impairment of the whole person and a 37.5% impairment of the lumbar region spine. By comparison, the rating under the 6th edition could be as low as 5% of the spine. Knowing this, many insurance companies have started pushing “their” doctors (yes, “their” doctors – South Carolina law gives workers’ comp insurance companies 100% control over which doctors will treat an injured worker) to use the Draconian 6th How would an injured worker even know this is an issue without a lawyer?

4. Seeing as how the insurance company’s doctor is assigning the rating, wouldn’t you want to at least consider getting a second opinion from an independent doctor?

Well, of course, you would. At the Joye Law Firm, we don’t set up an independent medical examination for every one of our workers’ compensation clients (there are some instances when we feel the authorized doctor’s assigned rating was reasonable and fair) but I’d estimate that we schedule independent medical examinations for 75% of our workers’ comp clients.

5. Suppose you have a serious back injury – would that be treated differently?

It certainly could be. Before our Workers’ Compensation Act was revised in 2007, any worker who was found to have a 50% or more scheduled disability of the spine was entitled to receive a recovery for total and permanent disability even if she had returned to work. The 2007 law allows the insurance company to rebut that the worker is totally disabled. However, as part of the compromise over this change, the law now says that for someone with a 50% or more scheduled loss of the spine, the spine is to be valued at 500 weeks, and not 300 weeks. How could that affect your recovery? Consider this. Someone recovering for a 49% loss of the spine would be entitled to a recovery of 147 weeks of benefits (49% of 300 weeks). By comparison, someone recovering for a 50% loss of the spine would recover 250 weeks of benefits. That’s a big difference – and yes, it’s complicated.

6. What if your case is not a scheduled member disability case?

In many instances, an injured worker is left with access to no reasonably stable job market due to their physical limitations, or, while they can return to some line of work, they’re left earning much less than what they made before they were hurt. No insurance company is going to voluntarily pay you for any general disability claim and it’s often necessary to hire appropriate experts to properly pursue one of these claims.

7. In many workers’ compensation cases, your future medical needs may be the most important consideration in your settlement

Unlike a car accident claim which requires you to fully release the at-fault party in any settlement (or verdict), an injured worker does have the right to have future medical coverage under the workers’ compensation system. Whether an injured worker should consider settling this portion of her claim is something that has to be determined on a case by case basis. In some instances, we have all but forbidden our workers’ comp clients from giving up their future medical coverage. If this is going to be an element of the settlement, expertise is needed to properly opine about what the future medical costs are likely to be. This can often be the largest consideration in a workers’ comp settlement.

Just as there are dozens of factors in determining the settlement value of a personal injury case, I could go on listing factors that affect the value of a South Carolina worker’ compensation claim. If someone working for the workers’ comp insurance company tries to convince you that “it’s just a formula”, use your common sense and ignore them. Of course, it might just be your buddy at the bar telling you that. If that’s the case, settle your tab and call us. It doesn’t cost a dime to speak with us – and you’ll feel better in the morning.