Honest Answers About Worker's Compensation Law and Situations in South Carolina
When you’re faced with a major life event, you’re filled with questions and uncertainty. Get the straight answers you’re looking for from a South Carolina attorney.
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How can the Family and Medical Leave Act affect my South Carolina workers’ compensation case?
A severe workplace injury can bury you in confusing legal paperwork and complicated details. But one law you might need to know more about is the Family and Medical Leave Act—because it can impact your case.
What is the Family Medical Leave Act?
The Family & Medical Leave Act (FMLA) is a federal law giving eligible employees of certain employers up to 12 weeks of unpaid, job-protected leave in a 12-month period.
You don’t have to take all that time in a single block. It can be broken up over that 12-month period.
During that time, employers must also continue your health insurance coverage.
FMLA provides limited job protection. On return, most employees must be restored to the same or similar job with equivalent pay, benefits, and other employment terms and conditions.
To be eligible, an employee must:
- Work for the employer for at least 12 months
- Generally, have at least 1,250 hours of service in the 12 months before taking leave
- Work at a location where the employer has at least 50 employees within 75 miles of the employee’s worksite
How does FMLA impact a workers’ comp case?
One qualifying condition for FMLA is a legally-defined “serious health condition” that makes you unable to do your job. For a badly hurt employee, the question often becomes, “Can I take FMLA leave while I’m out on workers’ comp?”
The answer is yes. Whether it’s the right thing to do depends entirely on your unique circumstances. An experienced workers’ comp attorney can give some guidance here, but you may not have a choice.
Some injured employees are stunned to learn their employers can declare workers’ comp leave as FMLA leave. While it can be frustrating to lose FMLA rights when you’re covered by workers’ comp, it’s the law.
There’s another answer you might need to know.
Can my employer make me take FMLA Leave instead of workers’ comp?
One thing an employer cannot do is force you to take FMLA leave instead of fulfilling its legal duties owed to you under the South Carolina workers’ compensation law.
If your employer sidesteps this legal responsibility, don’t let them get away with it for a second. Call a workers’ comp attorney you trust.
Get Your Questions Answered and Fears Addressed
You’ve stepped unwillingly into the unknown. That’s why I wrote my free book on workers' comp cases—to help folks just like you.
To get your questions answered, fill out our Get Help Now form at the top of the page or call 888-230-1841 to schedule a free, no-pressure strategy session.
Don’t forget to see what people say about us!
The workers’ comp doctor told me I’m as good as I’ll get and he’ll release me, but I’m convinced I need more treatment. Is there anything I can do?
Few things in a work injury case can make you feel as frightened or helpless as the doctor releasing you when you’re convinced there’s more that can be done to make you better.
But just because that doctor gives up doesn’t mean you should. This is your only case to fix the only body you’ll ever get. It’s time to fight for it!
And yes, there’s a very good option you should use—a second opinion. However, you should be cautious and expect the insurance company to oppose it. After all, you’re telling the insurance company you want it to spend more—maybe tens of thousands more—to help you, right after it gets wind the doctor’s ready to close the book on you. Rest assured the insurance company won’t greet the request looking to lend a helping hand. But not only is it worth considering, it’s worth doing right the first time.
A second opinion can make a big difference in your case, but you should meet with an experienced workers’ comp attorney to help you make the best case to get it. You may end up fighting for it at a contested hearing. Don’t risk wrecking your case because you don’t know better.
Seek Help With A Workers’ Comp Second Opinion to Get More Medical Treatment
Fill out our Get Help Now form at the top of the page or call 888-230-1841 to get your questions answered by a skilled workers’ comp attorney. It could be the difference between restored health and a lifetime of regret.
What happens if I get hurt so bad on the job that my injuries keep me from working anymore?
If your South Carolina work injury—or multiple injuries—are severe enough that your doctor or a vocational expert concludes you can’t work again, you may qualify for permanent and total disability benefits under workers’ comp. You can receive some major benefits:
- Free medical care for life. The workers' comp insurance company pays as long as the treatment relates to your work injury. You still have to pay for any other conditions or illnesses that aren’t related to your injury.
- Disability compensation. In most cases, disabled workers receive two-thirds of their average weekly wages for up to 500 weeks. But if you’re paralyzed or sustained a brain injury, you may qualify for that income for the rest of your life- see more on that below.
Two More Things You Should Know About These Benefits
- Being disabled under workers’ comp doesn't mean you're helpless. In fact, if you return to work, you keep the benefits. This encourages the severely injured to be as productive as possible.
- If you suffer total disability from a brain injury or paralysis, you might qualify for the maximum benefits under the law.
Protect Yourself Because Too Much Is at Stake
If your work injury case potentially involves total disability, your medical and financial futures are on the line. You likely need these benefits to prevent you and your family from falling into financial ruin as you waste away under untreated, disabling injuries. And you can rest assured the workers’ comp insurance company will fight you tooth and nail to save its precious dollars from your desperate need.
Hire an experienced workers’ comp attorney to build a convincing case for benefits to protect your future. This is the only chance you’ll get to do it.
If you’ve got questions about your case, start a live chat right where you are. An experienced South Carolina attorney will respond with answers.
What is a functional capacity evaluation (FCE)?
If your doctor wants guidance in assessing your accident injury for a permanent impairment rating, he might send you for an FCE.
Generally, it’s an exhaustive set of physical tests, usually given and scored by a physical therapist. Here’s what you need to know about FCEs.
Why FCEs Are Important
The doctor uses the results to give a more accurate rating, which can have a big impact on your case. We see them more often in South Carolina workers’ comp cases, where the results can help determine if you’re eligible for extra financial benefits for permanent and total disability and wage loss.
FCE Purpose From the Examiner’s Standpoint
There are generally three main purposes for the tester:
- Evaluate your ability to perform your job. The evaluator often has a copy of your job description from your employer.
- Define the physical level of work you qualify for under United States Department of Labor guidelines. Those provide 5 physical job demand categories: sitting, light, medium, heavy, and very heavy.
- Measure your loss of strength and motion from an injury.
Before moving on to the specific aspects of the test, there’s one vital thing you’ve got to remember.
Your Effort Counts—a Lot!
Exerting good effort is vital. These tests have built-in “lie detectors” that’ll expose deceptively low effort by you. Don’t try it. You’ll be smoked out, and it’ll ruin your case.
Now let’s turn to the tests and info used for the evaluation.
Physical Abilities Tests
The evaluator will test your ability to do the following, noting the maximum amount you can do:
- Lift from floor to shoulder, waist to shoulder, and a few inches off the floor to your waist.
- Push and pull.
- Basic motions including how much you can sit, stand, and walk (and whether you limp), climb stairs and ladders, reach overhead, and bend your knees to stoop, kneel, crouch, and crawl.
- Hand strength and coordination—you’ll be evaluated on your ability to handle objects and grasp with each hand.
This evaluates for things like:
- Whether you limp.
- Your posture and whether you can stand upright.
- Muscle tone—the tests measure tightness, tenderness, and muscle spasm.
- Joint and muscle flexibility.
- Range of motion and whether your ability to move your joints falls within normal limits.
You might even do a treadmill test. This checks your ability to walk for time and distance. The evaluator observes your posture and ability to walk without a limp. The test measures how long you’re able to do the task before it hurts too much or you run out of breath or energy.
You Get to Provide Some Input of Your Own
The evaluator also interviews you about important points in your injury like:
- How you got hurt.
- Your treatment history including the doctors you went to, what they did for you, and any therapy you had.
- Medications you take for your symptoms and other conditions.
- Your physical limitations, such as the ones we describe in this blog post.
It’s Just Another Piece of the Puzzle
With the exception of living with a permanent injury from an accident, your FCE may be the most difficult physical part of your case. But it’s only part of the challenge you face. If you’re severely injured enough to require an FCE, there’s a lot at stake for you legally too. Just as you got doctors to protect your body medically, it’s time to ask a lawyer about protecting your rights legally. You only get one chance at your case, so don’t risk ending it with regrets.
If you’ve got questions about your case, feel free to start a live chat right where you are so an experienced attorney can respond to your concerns.
If I file for workers’ comp, won’t my employer have to pay my medical bills?
Almost certainly not. We get this question more often than you might think. The majority of injured workers are loyal employees who might worry their employer will have to pay their medical bills. It discourages some employees from seeking vital benefits they need when they get seriously hurt on the job.
But before you forfeit important rights to income or to necessary medical care while you’re out of work, you should know this: In almost every case, your comp benefits get paid by an insurance company. That’s right! Your employer has paid thousands—maybe even millions—of dollars in premiums for years to provide coverage for people like you who get hurt on the job.
So if you’re worried your employer will personally pay your medical bills if you’re out, stop. It’s almost certainly an insurance company paying, and that insurer has plenty of money lying around to handle your claim.
And no, you can’t be fired for filing a workers’ comp claim. So if you haven't done this already, report the injury NOW, before the deadline runs out.
You Can Collect on Your Claim Without Hurting Anyone
Many of our clients are relieved to know that their claim for a job-related injury is not going to put their employer out of business. Even so, filing a claim can be uncomfortable for some workers who don’t want to deal with confrontation by co-workers or the sense from management they did something wrong by protecting their rights. And if you’re seriously hurt, the complexities and frustration of dealing with the insurance company can be overwhelming. Plus you’ve got important rights you need to protect, like future medical care. Just figuring out the right settlement can be complex.
All these are reasons why you should seek the advice of a professional who handles these cases for a living. If you’re worried about anything related to your work injury, fill out our Get Help Now section at the top of this page so you can get your questions answered.
After I settle my workers’ comp case, when do I get my check?
If you feel guilty about asking, stop. You’ve lost work and income. You may need the money to catch up on some bills. It’s the responsible thing to make plans and budget carefully when you receive money, and that includes a settlement.
That’s why we work to get you the money as quickly as we can.
But here’s the answer: it does take a little time to get your check, but it’s because workers’ compensation law imposes some requirements to protect you. Settlements must be filed with the Workers’ Compensation Commission and attorney fees and costs must be approved by the Commission.
Here’s how it works ordinarily:
- We agree to settle the case with the workers’ compensation insurance company that handles your benefits.
- We get settlement documents laying out the agreement. We review them closely to protect your rights, especially since they can impact your ability to get free future medical care for your injuries, depending which settlement option you chose. If you’ve been declared permanently and totally disabled, you can bet we’ll be extra careful about preserving your rights to the most extensive benefits known in workers’ comp. If the documents aren’t right, we make changes to protect you.
- The check usually comes with the settlement documents. We deposit that in our trust account, a special account safeguarding your money.
- Once the documents are ready for you to sign, you sign. Naturally, we explain them to you beforehand, since they’re often incredibly complex “legalese”—which can be just plain ridiculous. We return them to opposing counsel to file with the Commission, or we file them ourselves.
- You also sign a Form 61. It’s an official form from the South Carolina Workers’ Compensation Commission. It details who gets paid from the settlement, including our fees and costs paid from the settlement check. We send that to a Commissioner with an order approving the fees and costs.
When we get the filed copies of the settlement documents, the form 61, and the order approving our fees and costs, it’s official! You get your check.
Workers Compensation Settlements Are Worth A Little Wait
While the process takes longer than we want—usually a few weeks—it’s to be sure no injured worker gets taken for a ride by an insurance company—or even a dishonest lawyer.
Naturally, if you’ve hired us, you’re not worried about that.
If you have questions about your potential comp settlement or any aspects of your comp case, feel free to email us right where you are to get them answered. We’re here to give you peace of mind and help you find your way in what’s often a hard, confusing time. You can also download our book The Hurt Worker's Toolkit to get valuable information to help you.
I got hurt at work due to an unsafe condition my supervisors knew about but didn’t fix. Can I sue the factory?
Yes and no.
Yes, you can make a workers’ compensation claim against your employer, who likely has insurance to pay for your benefits.
No, you can’t file a lawsuit against your employer to recover money for damages, such as pain and suffering or punitive damages. EXCEPTION: If you got hurt at work as a result of someone besides your employer, you may be able to file a lawsuit called a “third party action.” But how you settle those cases is extremely important—if you do it wrong, it could cost you your workers’ comp benefits.
Why Can’t I Sue?
The reason you can’t sue your employer is that workers’ compensation is a bargain in the law made between employees and employers. Employees gave up the right to get more money from lawsuits for unsafe working conditions. But they gained the right to benefits related to work injuries, including free medical care, replacement of most income while they're out of work, and money for permanent disability.
Employers gave up the right to force injured employees prove employer fault in workplace injuries before paying benefits. This is why workers’ compensation is often called a “no-fault system.” You can often get benefits even if it’s your own fault you got hurt. In return, employers gained the ability to be free from potentially huge verdicts in unsafe workplace lawsuits.
In most cases, the system works pretty well. But that doesn’t mean it’s a cakewalk for injured employees. Despite less financial exposure, employer insurance companies tend to take a hard line on paying seriously hurt workers. While the system is designed to help employees, settlements can be complex, and insurance companies fight the hardest for the most expensive benefits for the most severely injured.
These are important rights to protect your health and your financial stability. Don’t give up rights you don’t know about…and don’t get run over by the workers’ compensation insurance company.
If you’ve got more questions about how workers’ compensation works, take advantage of the free info on our site. You can always open up a live chat for answers from an experienced workers’ compensation attorney. And you’re always free to come meet with us—there’s no pressure to hire us and it’s free!
The help we give in a single email, phone call, or sit down-chat can be the difference between peace of mind and heartbreak. Our phone number’s right there at the top of the screen. Make the call.
I got hurt bad on the job. The doctor says I can go back with restrictions. Do I have to go back to work if I’m worried I can’t do my job?
Yes, you must go back if your employer has work you can do within your restrictions. If you refuse to return to work at a job the doctor indicates you’re able to perform, you can be denied workers’ compensation benefits.
Few things inspire more anxiety for hurt workers than returning to work. Many are so anxious to get back to work it drives them crazy when the doctor won’t let them, or gives them restrictions their job can’t accommodate. And other folks worry they’re being released too early, that the work could worsen their condition, or that they just can’t do the job anymore. And returning to work after an injury can be a little awkward and even intimidating, even if it’s not your fault and you’re doing all you can to get back.
We’ve found information eases fears, so here’s some basics on how getting back to work goes.
The Doctor’s Work Restrictions Protect You
Here’s some important terms you might encounter:
Your doctor may allow you to do this type work while he’s still treating you. It means you’ve got restrictions keeping you from doing your normal work. So if you work in a warehouse but can’t lift due to a shoulder injury, light duty might mean you answer phones or sweep the floors. Hopefully, you’ll return to your prior job once you reach maximum medical improvement. If your employer has no light duty, you remain on temporary total disability, getting a weekly check.
When the doctor releases you, he gives these as your lifelong limitations from the injury. Once you have them, you should report to work to see if your employer has a job that can accommodate them. If so, congrats! You dodged a bullet by not having to look for a new job.
Some people aren’t so lucky. You may have a grave, complicated injury with lifelong consequences. You may count as totally disabled under workers’ compensation law, a term that doesn’t mean what you may think. If you don’t already have one, you need an experienced lawyer to get you the most permanent disability benefits possible to help protect your financial security.
What If I Try to Work But Just Can’t Do It?
If you give work an honest try, but can’t do it, be honest about it. Report it to your supervisor. You may need more treatment, and you should ask to go back to the doctor for a reevaluation. For income, hurt employees who try working but can’t make it 15 days ordinarily qualify automatically for temporary total disability benefits.
The Cure for Legal Worries Is Professional Help
If you’re worried about going back to work or anything else related to your workers’ comp case, stop and take action. Email us your questions so we can answer them and start giving you guidance. Let us help give you peace of mind and get you the maximum available benefits you can obtain in your one-time chance to do right by yourself after a work injury.
Is it expensive to hire a workers’ compensation attorney?
No. Workers’ compensation attorneys get paid by a “contingency fee.” This fee is a portion of your financial settlement. In addition to that, you also reimburse the lawyer from the settlement for any costs expended to help your case.
This fee arrangement helps you because your lawyer should be driven to get the best settlement possible—the more you get, the more he earns. Plus there’s no upfront retainer fees, which you might be unable to afford from losing work due to your injuries.
To give you a better idea how this works, we’ll break it down a little more.
Workers’ Compensation Attorney Fees
The law caps attorney fees at a maximum of one-third of your monetary settlement. Before anyone gets paid from it, your lawyer must submit a form signed by both of you showing payments from the settlement—his fee, the reimbursed costs, and the amount you get.
No one gets paid until the commission approves the fees and costs by order. This protects workers from dishonest lawyers who charge too much.
Typical Workers’ Compensation Case Costs
Your lawyer pays these costs upfront to help your case. At Holland & Usry, we work to minimize these expenses—without hurting your case—to help you get the most money possible.
Typical case expenses include:
- Fees for evidence. For a small fee, we get a copy of the Commission file, which can contain important basic information like the first report of injury showing how your employer reported the accident. It might also contain other forms filed by your employer that supply other useful nuggets about your case, including your “comp rate,” the amount you get paid if you’re out of work on temporary total disability.
- Fees charged by providers for medical records. We can’t fully evaluate your case without knowing what your doctors say. We especially need information from your medical caregivers that will help use evaluate your impairment rating.
- Fees charged by your doctor to meet with him. Sometimes we meet with your doctor to discuss your case, especially to be sure he relates the injury to work, to discuss impairment ratings, and evaluate whether you need future medical care. This isn’t a bribe—it makes up for the time he loses with patients to meet with us.
These costs are usually a few hundred bucks or less. But if your case is contested, we may have additional costs, due to:
- Filing fees. The Commission charges a fee to request a hearing.
- Depositions. This is out-of-court sworn testimony where the insurance company lawyer asks you all about your background, injury, and the impact it had on your life at work and home. We may also take depositions, if absolutely necessary. Again we're working to minimize your costs to maximize your settlement to you.
- Experts. Only rare cases require them. Examples include second opinions and, in some severe injury cases, a vocational evaluation expert. We might employ a vocational evaluator if we’re trying to prove you eligible for maximum benefits of permanent and total disability or wage loss. The evaluator can tell us whether you can work again and, if so, the limits of your ability to earn wages. Because experts can make costs skyrocket, we use them only when absolutely necessary.
- Mediation. This is rare. It's only required in certain cases, including permanent and total disability cases. In mediation, the parties hire another lawyer with no interest in the outcome and experience in comp cases to help them settle it.
Contested case costs can run into the low thousands.
The Good News—All The Legal Work Costs You Nothing Up Front
If you’ve been hurt at work, you have nothing to lose by meeting with an experienced workers’ compensation lawyer. And by hiring one, you might have more to gain than you thought. Start a live chat with us right now to schedule a free meeting to see what we can do to help your case.
How long do I have to file for workers’ comp in South Carolina?
It depends. That’s why you need to find an experienced workers’ compensation lawyer as soon as possible. For most employees—and for most injuries—there are actually two critical deadlines to meet. If you miss the deadlines, well, you’re out of luck.
Deadline for Notice of Injury to Employer
To qualify for workers’ comp benefits, you must “give notice” to your employer of your injury. That means tell your employer you got hurt. Usually this involves telling your supervisor or a manager.
- Typical case. Most cases come from accidents—a single event like a car crash or pain rocketing down your back when you pick up a heavy object. These cases require notice to be given within 90 days of the triggering incident.
- Repetitive trauma injuries. These injuries happen bit by bit over time, such as leg pain from standing at a cashier station day after day or shoulder joint damage from operating a vibrating machine in an industrial plant. You must notify your employer within 90 days of the date you discovered the injury, or could have discovered it if you used reasonable diligence. Watch out! “Could have discovered” can be a trap the insurance uses to deny benefits.
- Exceptions. There are some, but why sweat bullets over them? Take action now.
Deadline to File Claim
Your right to workers’ compensation benefits ends if you don’t file a claim on time. “File” means sending required documentation to the workers’ compensation commission.
- Typical case. You must file within two years of the accident.
- Repetitive trauma injuries. You must file within two years of the date you knew or should have known of the injury. Again, “should have known” can be an insurance company trap to keep you from benefits. There’s an outright deadline of seven years from the last exposure to injury.
Don’t Wait—Too Much Is At Stake
Waiting jeopardizes your vital rights to medical care and income you’ll need if you can’t work. Don’t leave your health and your family’s financial future to chance—or to the mercy of your employer’s insurance company, because you won’t get any.
Do one simple thing so you can rest easy: call (888) 230-1841 or (864) 582-0416 for a free meeting to discuss the law of your case, how it affects your rights, and how we can maximize your benefits.