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									 1   Indicates Matter Stricken
 2   Indicates New Matter
 3
 4   COMMITTEE REPORT
 5   March 21, 2007
 6
 7                                                           S. 332
 8
 9             Introduced by Senators Martin, Ritchie and Vaughn
10
11   S. Printed 3/21/07--S.
12   Read the first time January 24, 2007.
13
14
15                 THE COMMITTEE ON JUDICIARY
16     To whom was referred a Bill (S. 332) to amend Section
17   38-55-530, Code of Laws of South Carolina, 1976, so as to clarify
18   that “false statement and misrepresentation” includes a false
19   business, etc., respectfully
20                                REPORT:
21     That they have duly and carefully considered the same and
22   recommend that the same do pass with amendment:
23
24     Amend the bill, as and if amended, by striking all after the
25   enacting words and inserting:
26                                  / PART I
27     SECTION 1. Section 38-55-530(D) of the 1976 Code is
28   amended to read:
29     “(D) ‘False statement and or representation’ means a statement
30   or representation made by a person that is false, material, made
31   with the person’s knowledge of the falsity of the statement or
32   representation, and made with the intent of obtaining or causing
33   another to obtain or attempting to obtain or causing another to
34   obtain an undeserved economic advantage or benefit or made with
35   the intent to deny or cause another to deny any benefit or payment
36   in connection with an insurance transaction, and such shall
37   constitute fraud.       ‘False statement or misrepresentation’
38   specifically includes, but is not limited to, an intentional:
39        (1) false report of business activities;
40        (2) miscount or misclassification by an employer of its
41   employees;
42        (3) failure to timely reduce reserves;

     [332-1]
 1        (4) failure to account for Second Injury Fund
 2   reimbursements or subrogation reimbursements; or
 3        (5) failure to provide verifiable information to public or
 4   private rating bureaus and the Department of Insurance.
 5      An undeserved economic benefit or advantage includes, but is
 6   not limited to, a favorable insurance premium, payment schedule,
 7   insurance award, or insurance settlement.”
 8      SECTION 2. Section 38-55-540 of the 1976 Code is amended
 9   to read:
10      “Section 38-55-540. (A) Any A person or insurer who
11   knowingly makes a false statement or misrepresentation, and any
12   other person knowingly, with an intent to injure, defraud, or
13   deceive, or who assists, abets, solicits, or conspires with such a
14   person or insurer to make a false statement or misrepresentation, is
15   guilty of a:
16        (1) misdemeanor, for a first offense violation, if the amount
17   of the economic advantage or benefit received is less than one
18   thousand dollars. Upon conviction, the person must be punished
19   by a fine fined not to exceed less than one hundred nor more than
20   five hundred dollars or by imprisonment imprisoned not to exceed
21   more than thirty days;
22        (2) misdemeanor, for a first offense violation, if the amount
23   of the economic advantage or benefit received is one thousand
24   dollars or more but less than ten thousand dollars. Upon
25   conviction, the person must be punished by a fine fined not to
26   exceed less than two thousand nor more than fifty ten thousand
27   dollars or by imprisonment for a term imprisoned not to exceed
28   more than three years, or by both, such fine and imprisonment;
29        (3) felony, for a first offense violation, if the amount of the
30   economic advantage or benefit received is ten thousand dollars or
31   more but less than fifty thousand dollars. Upon conviction, the
32   person must be fined not less than ten thousand nor more than fifty
33   thousand dollars or imprisoned not more than five years, or both;
34        (4) felony, for a first offense violation, if the amount of the
35   economic advantage or benefit received is fifty thousand dollars or
36   more. Upon conviction, the person must be fined not less than
37   twenty thousand nor more than one hundred thousand dollars or
38   imprisoned not more than ten years, or both;
39        (3)(5) felony, for a second or subsequent violation,
40   regardless of the amount of the economic advantage or benefit
41   received. Upon conviction, the person must be punished by a fine
42   fined not to exceed fifty less than twenty thousand nor more than
43   one hundred thousand dollars or by imprisonment for a term

     [332-2]
 1   imprisoned not to exceed more than ten years, or by both, such fine
 2   and imprisonment.
 3      (B) In addition to the criminal penalties set forth in subsection
 4   (A), Any a person or insurer convicted under pursuant to the
 5   provisions of this section must be ordered by the court to make full
 6   restitution to the a victim or victims for any economic advantage or
 7   benefit which has been obtained by the person or insurer as a result
 8   of that violation, and to pay the difference between any taxes owed
 9   and any taxes the person paid, if applicable.”
10      SECTION 3. Section 38-55-560 of the 1976 Code is amended
11   by adding the following lettered subsection at the end to read:
12      “(E) The Attorney General is authorized to hire, employ, and
13   reasonably equip one forensic accountant, and this forensic
14   accountant must be assigned to the Insurance Fraud Division of the
15   Attorney General’s Office. A person is not qualified to be hired
16   as, and the Insurance Fraud Division shall not hire, a forensic
17   accountant unless the person possesses and maintains a current
18   license to engage in the practice of accounting pursuant to the
19   provisions of Chapter 2, Title 40.”
20      SECTION 4. Section 42-1-360 of the 1976 Code is amended to
21   read:
22      “Section 42-1-360. This Title shall title does not apply to:
23      (1) Casual casual employees, as defined in Section 42-1-130,
24   and Federal employees in this State;
25      (2) Any any person who has regularly employed in service less
26   than four employees in the same business within the State or who
27   had a total annual payroll during the previous calendar year of less
28   than three thousand dollars regardless of the number of persons
29   employed during that period;
30      (3) Textile Hall Corporation, an eleemosynary corporation
31   whose principal object is the organizing and production of the
32   Southern Textile Exposition;
33      (4)(3) State state and county fair associations;, unless any such
34   employer voluntarily elects to be bound by this title, as provided
35   by Section 42-1-380.;
36      (4) Agricultural agricultural employees;, unless the agricultural
37   employer voluntarily elects to be bound by this title, as provided
38   by Section 42-1-380.;
39      (5) railroads, railroad employees, railway express companies,
40   or railway express company employees; nor shall this title be
41   construed to repeal, amend, alter, or affect in any way the laws of
42   this State relating to the liability of railroads or railway express
43   companies for injuries to their respective employees;

     [332-3]
 1      (6) persons engaged in selling agricultural products for the
 2   producers thereof on commission or for other compensation, paid
 3   by the producers, when the product is prepared for sale by the
 4   producer;
 5      (7) licensed real estate sales persons engaged in the sale,
 6   leasing, or rental of real estate for a licensed real estate broker on a
 7   straight commission basis and who has signed a valid independent
 8   contractor agreement with the broker;
 9      (8) federal employees in this State;
10      (9)(a) independent contractors engaged by a principal who have
11   signed a valid independent contractor agreement with the
12   principal;
13         (b) a valid independent contractor agreement must be made
14   at or before the time the contract for the work is made and shall:
15            (i) be in writing;
16            (ii) state that the independent contractor assumes the
17   responsibilities of an employer for the performance of work;
18            (iii) contain the signatures of both parties;
19            (iv) indicate the date the agreement was made, the term for
20   which the agreement will be effective, the estimated number of
21   workers affected by the agreement, the federal tax identification or
22   social security number of the parties; and
23            (v) be provided to the insurer of the principal upon
24   request;
25      (10) an individual who owns a tractor-trailer, tractor or other
26   vehicle, hereinafter referred to as ‘vehicle’, or holds a vehicle
27   under lease and who, under a valid independent contractor contract
28   or lease, provides that vehicle and the individual’s services as a
29   driver to a motor carrier. Such an individual shall be considered an
30   independent contractor and not an employee of the motor carrier
31   under this title. The individual and the motor carrier to whom the
32   individual contracts or leases the vehicle may mutually agree that
33   the individual and/or workers will be covered under the motor
34   carrier’s workers’ compensation policy or authorized
35   self-insurance if the individual agrees to pay the contract amounts
36   requested by the motor carrier. Under any such agreement, the
37   independent contract and/or workers must be considered an
38   employee of the motor carrier only for the purposes of this title and
39   for no other purposes. As used in this subsection, an independent
40   contractor is defined as a person who:
41         (a) is responsible for the maintenance of the vehicle;



     [332-4]
 1         (b) bears the principal burden of the vehicle’s operating
 2   costs, including fuel, repairs, supplies, and personal expenses for
 3   the operator while on the road;
 4         (c) determines compensation on factors related to the work
 5   performed, including a percentage of any schedule of rates or
 6   mileage driven and not solely on the basis of the hours of time
 7   expended; and
 8         (d) enters into a valid independent contractor agreement as
 9   defined in subitem (9)(b) of this section, which specifies the
10   relationship to be that of an independent contractor and not that of
11   an employee.”
12      SECTION 5. Section 42-1-160 of the 1976 Code is amended to
13   read:
14      “Section 42-1-160. (A) ‘Injury’ and ‘personal injury’ shall
15   mean only injury by accident arising out of and in the course of the
16   employment and shall not include a disease in any form, except
17   when it results naturally and unavoidably from the accident and
18   except such diseases as are compensable under the provisions of
19   Chapter 11 of this title. In construing this section, an accident
20   arising out of and in the course of employment shall include
21   includes employment of an employee of a municipality outside the
22   corporate limits of the municipality when the employment was
23   ordered by a duly authorized employee of the municipality.
24      (B) Stress, mental injuries, and mental illness arising out of and
25   in the course of employment unaccompanied by physical injury
26   and resulting in mental illness or injury is are not considered a
27   personal injury unless it is established the employee establishes, by
28   a preponderance of the evidence:
29         (1) that the stressful employee’s employment conditions
30   causing the mental injury stress, mental injury, or mental illness
31   were extraordinary and unusual in comparison to the normal
32   conditions of the particular employment; and
33         (2) the medical causation between the stress, mental injury,
34   or mental illness, and the stressful employment conditions by
35   medical evidence.
36      (C) Stress, mental injuries, and mental illness arising out of and
37   in the course of employment unaccompanied by physical injury is
38   are not considered compensable if it results they result from any
39   event or series of events which is are incidental to normal
40   employer/employee relations including, but not limited to,
41   personnel actions by the employer such as disciplinary actions,
42   work evaluations, transfers, promotions, demotions, salary


     [332-5]
 1   reviews, or terminations, except when these actions are taken in an
 2   extraordinary and unusual manner.
 3      (D) Stress, mental injuries and mental illness alleged to have
 4   been aggravated by a work-related physical injury shall not be
 5   found compensable unless the aggravation is:
 6        (a) admitted by the employer/carrier;
 7        (b) noted in a medical record of an authorized physician that,
 8   in the physician’s opinion, the condition is at least in part
 9   causally-related or connected to the injury or accident, whether or
10   not the physician refers the employee for treatment of the
11   condition;
12        (c) found to be causally-related or connected to the accident
13   or injury after evaluation by an authorized psychologist or
14   psychiatrist; or
15        (d) noted in a medical record or report of the employee’s
16   personal physician as causally-related or connected to the injury or
17   accident and when such record or report is not the product of a
18   referral to the physician by the employee’s attorney.
19      (E) In medically complex cases, an employee must establish by
20   medical evidence the causation between the injury and the
21   accident. If the medical evidence is conflicting or inconclusive,
22   the commissioner may seek additional competent evidence,
23   including lay testimony, to determine causation. For purposes of
24   this subsection, ‘medically complex cases’ means sophisticated
25   cases requiring surgical intervention or other highly scientific
26   techniques for diagnosis or treatment.
27      (F) The word ‘accident’ as used in this title must not be
28   construed to mean a series of events in employment, of a similar or
29   like nature, occurring regularly, continuously, or at frequent
30   intervals in the course of such employment, over extended periods
31   of time. Any injury or disease attributable to such causes must be
32   compensable only if culminating in a compensable repetitive
33   trauma injury pursuant to Section 42-1-172 or an occupational
34   disease pursuant to the provisions of Chapter 11 of this title.
35      (G) As used in this title, ‘medical evidence’ means expert
36   opinion, expert testimony, documents, or other material that is
37   offered or stated to a reasonable degree of medical certainty by a
38   licensed health care provider.”
39      SECTION 6. The 1976 Code is amended by adding:
40      “Section 42-1-172. (A) ‘Repetitive trauma injury’ means an
41   injury which is gradual in onset and caused by the cumulative
42   effects of repetitive traumatic events. Compensability of such


     [332-6]
 1   repetitive trauma injuries shall only be determined under the
 2   provisions of this statute.
 3      (B) No injury shall be considered a compensable repetitive
 4   trauma injury unless a commissioner makes a specific finding of
 5   fact by a preponderance of the evidence of a causal connection that
 6   is supported by medical evidence between the repetitive activities
 7   on the job and the injury.
 8      (C) A ‘repetitive trauma injury’ shall be considered to arise out
 9   of employment only if it is reasonably apparent upon consideration
10   of all the circumstances that there is a direct causal relationship
11   between the condition under which the work is performed and the
12   injury.
13      (D) Upon reaching maximum medical improvement, if the
14   employee returns to work with the employer in whose employ such
15   repetitive trauma injury was suffered, the employee shall be
16   entitled to benefits under Section 42-9-20 or Section 42-9-30.
17   Upon reaching maximum medical improvement, if the employee
18   does not return to work with the employer in whose employ such
19   repetitive trauma injury was suffered, the employee shall be
20   entitled to benefits under Section 42-9-10, 42-9-20, or 42-9-30.
21   Medical benefits for compensable repetitive trauma injuries shall
22   be as provided elsewhere in this title.”
23      SECTION 7. Section 42-9-30 of the 1976 Code is amended to
24   read:
25      “Section 42-9-30. (A) In cases included in the following
26   schedule, the disability in each case shall be deemed to continue
27   for the period specified and the compensation so paid for such
28   injury shall be as specified therein, to wit as follows:
29         (1) for the loss of a thumb, sixty-six and two-thirds percent
30   of the average weekly wages during sixty-five weeks;
31         (2) for the loss of a first finger, commonly called the index
32   finger, sixty-six and two-thirds percent of the average weekly
33   wages during forty weeks;
34         (3) for the loss of a second finger, sixty-six and two-thirds
35   percent of the average weekly wages during thirty-five weeks;
36         (4) for the loss of a third finger, sixty-six and two-thirds
37   percent of the average weekly wages during twenty-five weeks;
38         (5) for the loss of a fourth finger, commonly called the little
39   finger, sixty-six and two-thirds percent of the average weekly
40   wages during twenty weeks;
41         (6) the loss of the first phalange of the thumb or any finger
42   shall be considered to be equal to the loss of one half of such


     [332-7]
 1   thumb or finger and the compensation shall be for one half of the
 2   periods of time above specified;
 3        (7) the loss of more than one phalange shall be considered
 4   the loss of the entire finger or thumb; provided, however, that in
 5   no case shall the amount received for more than one finger exceed
 6   the amount provided in this schedule for the loss of a hand;
 7        (8) for the loss of a great toe, sixty-six and two-thirds
 8   percent of the average weekly wages during thirty-five weeks;
 9        (9) for the loss of one of the toes other than a great toe,
10   sixty-six and two-thirds percent of the average weekly wages
11   during ten weeks;
12        (10) the loss of the first phalange of any toe shall be
13   considered to be equal to the loss of one half of such toe and the
14   compensation shall be for one half the periods of time above
15   specified;
16        (11) the loss of more than one phalange shall be considered as
17   the loss of the entire toe;
18        (12) for the loss of a hand, sixty-six and two-thirds percent of
19   the average weekly wages during one hundred and eighty-five
20   weeks;
21        (13) for the loss of an arm, sixty-six and two-thirds percent of
22   the average weekly wages during two hundred twenty weeks;
23        (14) for the loss of a foot, sixty-six and two-thirds percent of
24   the average weekly wages during one hundred forty weeks;
25        (15) for the loss of a leg, sixty-six and two-thirds percent of
26   the average weekly wages during one hundred ninety-five weeks;
27        (16) for the loss of an eye, sixty-six and two-thirds percent of
28   the average weekly wages during one hundred forty weeks;
29        (17) for the complete loss of hearing in one ear, sixty-six and
30   two-thirds percent of the average weekly wages during eighty
31   weeks; and for the complete loss of hearing in both ears, sixty-six
32   and two-thirds percent of the average weekly wages during one
33   hundred sixty-five weeks, and the commission shall by regulation
34   provide for the determination of proportional benefits for total or
35   partial loss of hearing based on accepted national medical
36   standards. ;
37        (18) total loss of use of a member or loss of vision of an eye
38   shall be considered as equivalent to the loss of such member or
39   eye. The compensation for partial loss of or for partial loss of use
40   of a member or for partial loss of vision of an eye shall be such
41   proportion of the payments herein provided for total loss as such
42   partial loss bears to total loss.;


     [332-8]
 1        (19) for the total loss of use of the back in cases where the
 2   loss of use is forty-nine percent or less, sixty-six and two-thirds
 3   percent of the average weekly wages during three hundred weeks.
 4   In cases where there is fifty percent or more loss of use of the
 5   back, sixty-six and two-thirds percent of the average weekly wages
 6   during five hundred weeks. The compensation for partial loss of
 7   use of the back shall be such proportions of the periods of payment
 8   herein provided for total loss as such partial loss bears to total loss,
 9   except that in cases where there is fifty percent or more loss of use
10   of the back, in which event the injured employee shall be deemed
11   presumed to have suffered total and permanent disability and
12   compensated therefor under paragraph two of Section 42-9-10.
13   The presumption set forth in this item is rebuttable;
14        (20) for the total or partial loss of, or loss of use of, a
15   member, organ or part of the body not covered herein and not
16   covered under Sections 42-9-10 or 42-9-20, sixty-six and two
17   thirds of the average weekly wages not to exceed five hundred
18   weeks. The commission shall may by regulations prescribe the
19   ratio which the partial loss or loss or partial loss of use of a
20   particular member, organ or body part bears to the whole man,
21   basing such ratios on accepted medical standards considering the
22   medical impairment rating pursuant to the most recent version of
23   the American Medical Association’s ‘Guide to the Evaluation of
24   Permanent Impairment’ or other accepted medical treatise and
25   other factors set out in Section 42-9-5, and such ratios shall
26   determine the benefits payable under this subsection.;
27        (21) proper and equitable benefits shall be paid for serious
28   permanent disfigurement of the face, head, neck or other area
29   normally exposed in employment, not to exceed fifty weeks.
30   Where benefits are paid or payable for injury to or loss of a
31   particular member or organ under other provisions of this title, no
32   additional benefits shall be paid under this paragraph, except that;
33   however, disfigurement shall also include includes compensation
34   for serious burn scars or keloid scars on the body resulting from
35   injuries, in addition to any other compensation.
36      The weekly compensation payments referred to in this section
37   shall are all be subject to the same limitations as to maximum and
38   minimum limitations as set out forth in Section 42-9-10.”
39      SECTION 8. The 1976 Code is amended by adding:
40      “Section 42-9-5. Any award made pursuant to this title must be
41   based upon specific and written detailed findings of fact
42   substantiating the award, including the consideration of each of the
43   following and a finding on each:

     [332-9]
 1      (1) medical impairment rating(s) pursuant to the latest version
 2   of the American Medical Association’s ‘Guide to the Evaluation of
 3   Permanent Impairment’ or other accepted medical treatise or
 4   authority;
 5      (2) work restrictions imposed upon the employee;
 6      (3) results of any evaluative testing or assessment that address
 7   the employee’s causally related medical pathology and functional
 8   limitations, giving due consideration to whether the employee gave
 9   a good and consistent effort;
10      (4) surgical outcome, if applicable;
11      (5) education of the employee;
12      (6) employee’s work history and experience;
13      (7) employee’s transferable skills;
14      (8) employee’s job training;
15      (9) employee’s physical capacity;
16      (10) vocational evaluation report(s), if submitted;
17      (11) testimony of the witnesses including, but not limited to, the
18   employee;
19      (12) if the injury is to an upper extremity, whether the employee
20   is left hand dominant or right hand dominant;
21      (13) whether the injured employee takes prescription medication
22   prescribed by the authorized treating physician, and any effect that
23   the medication has on the employee’s ability to work;
24      (14) employee’s age;
25      (15) availability of work in locality for transferable skills,
26   re-training, and residual capacity;
27      (16) pain and swelling from the injury on a recurring basis;
28      (17) need and dependency for durable medical equipment; and
29      (18) any other factor needed by the commissioner to reach a
30   decision in the case.
31      For purposes of this section, award does not include settlement
32   agreements.”
33      SECTION 9. Section 42-11-10 of the 1976 Code is amended to
34   read:
35      “Section 42-11-10. (A) The words ‘occupational disease’ mean
36   a disease arising out of and in the course of employment which is
37   due to hazards in excess of those ordinarily incident to
38   employment and is peculiar to the occupation in which the
39   employee is engaged. A disease shall be deemed considered an
40   occupational disease only if caused by a hazard recognized as
41   peculiar to a particular trade, process, occupation, or employment
42   as a direct result of continuous exposure to the normal working
43   conditions thereof.

     [332-10]
 1      (B) No disease shall be deemed considered an occupational
 2   disease when it:
 3        (1) It does not result directly and naturally from exposure in
 4   this State to the hazards peculiar to the particular employment;
 5        (2) It results from exposure to outside climatic conditions;
 6        (3) It is a contagious disease resulting from exposure to
 7   fellow employees or from a hazard to which the workman would
 8   have been equally exposed outside of his employment;
 9        (4) It is one of the ordinary diseases of life to which the
10   general public is equally exposed, unless such disease follows as a
11   complication and a natural incident of an occupational disease or
12   unless there is a constant continuous exposure peculiar to the
13   occupation itself which makes such disease a hazard inherent in
14   such occupation;
15        (5) It is any disease of the cardiac, pulmonary, or circulatory
16   system not resulting directly from abnormal external gaseous
17   pressure exerted upon the body or the natural entrance into the
18   body through the skin or natural orifices thereof of foreign organic
19   or inorganic matter under circumstances peculiar to the
20   employment and the processes utilized therein; or
21        (6) It is any chronic disease of the skeletal joints.
22      (C) When an occupational disease has been found to arise
23   directly and naturally from exposure in this State to hazards
24   peculiar to the particular employment, the employee shall establish
25   by medical evidence he has contracted the disease.
26      (D) No compensation shall be payable for any occupational
27   disease unless the employee suffers a disability as described in
28   Section 42-9-10 or Section 42-9-20.”
29      SECTION 10. Section 42-15-40 of the 1976 Code is amended
30   to read:
31      “Section 42-15-40. The right to compensation under this title is
32   barred unless a claim is filed with the commission within two years
33   after an accident, or if death resulted from the accident, within two
34   years of the date of death. However, for occupational disease
35   claims the two-year period does not begin to run until the
36   employee concerned has been diagnosed definitively as having an
37   occupational disease and has been notified of the diagnosis. For
38   the death or injury of a member of the South Carolina National
39   Guard, as provided for in Section 42-7-67, the time for filing a
40   claim is two years after the accident or one year after the federal
41   claim is finalized, whichever is later. The filing required by this
42   section may be made by registered mail, and the registry service
43   within the time periods set forth in this section constitutes timely

     [332-11]
 1   filing. For a ‘repetitive trauma injury’ as defined in Section
 2   42-1-172, the right to compensation is barred unless a claim is
 3   filed with the commission within two years after the last date of
 4   injurious exposure. This section applies regardless of whether the
 5   employee was aware that his repetitive trauma injury was the result
 6   of his employment.”
 7      SECTION 11. Section 42-15-60 of the 1976 Code is amended
 8   to read:
 9      “Section 42-15-60. (A) Medical The employer must provide
10   medical, surgical, hospital, and other treatment, including medical
11   and surgical supplies as may reasonably be required, for a period
12   not exceeding ten weeks from the date of an injury to effect a cure
13   or give relief, and for such additional time as in the judgment of
14   the Commission will tend to lessen the period of disability as
15   recommended by the authorized treating physician as being
16   medically necessary or prudent and, in addition thereto, such
17   original artificial members as may be reasonably necessary at the
18   end of the healing period shall be provided by the employer. In
19   case of a controversy arising between employer and employee, the
20   commission may order such further medical, surgical, hospital, or
21   other treatment as may be medically necessary or prudent in the
22   discretion of the commission be necessary. During the whole or
23   any part of the remainder of disability resulting from the injury the
24   employer may, at his its own option, continue to furnish or cause
25   to be furnished, free of charge to the employee, and the employee
26   shall accept an attending physician and any medical care or
27   treatment that may be considered medically necessary or prudent
28   by such attending physician, unless otherwise ordered by the
29   commission for good cause shown and, in addition, such surgical
30   and hospital service and supplies as may be deemed considered
31   necessary by such attending physician or the commission.
32      (B)(1) When a claim is settled on the commission’s Agreement
33   for Permanent Disability/Disfigurement Compensation form, the
34   employer is not required to provide further medical treatment or
35   medical modalities after one year from the date of full payment of
36   the settlement unless the form specifically provides otherwise.
37         (2) Each award of permanency as ordered by the single
38   commissioner or by the commission must contain a finding as to
39   whether or not further medical treatment or modalities must be
40   provided to the employee. If the employee is entitled to receive
41   such benefits, the medical treatment or modalities to be provided
42   must be set forth with as much specificity as possible in the single
43   commissioner’s order or the commission’s order.

     [332-12]
 1         (3) In no case shall an employer be required to provide
 2   medical treatment or modalities in any case where there is a lapse
 3   in treatment of the employee by an authorized physician in excess
 4   of one year unless:
 5           (a) the settlement agreement or commission order
 6   provides otherwise; or
 7           (b) the employee has made reasonable attempts to obtain
 8   further treatment or modality from an authorized physician, but
 9   through no fault of the employee’s own, is unable to obtain such
10   treatment or modalities.
11      (C) The refusal of an employee to accept any medical, hospital,
12   surgical, or other treatment when provided by the employer or
13   ordered by the commission, shall bar such employee from further
14   compensation until such refusal ceases; and no compensation shall
15   at any time be paid for the period of suspension refusal unless in
16   the opinion of the commission the circumstances justified the
17   refusal, in which case the commission may order a change in the
18   medical or hospital service. If in an emergency, on account of the
19   employer’s failure to provide the medical care as specified in this
20   section, a physician other than provided by the employer is called
21   asked to treat the injured employee, the reasonable cost of such
22   service shall be paid by the employer if so ordered by the
23   commission.
24      (D) In cases in which total and permanent disability results of
25   paraplegia, quadriplegia, or physical brain damage, reasonable and
26   necessary nursing services, medicines, prosthetic devices, sick
27   travel, medical, hospital, and other treatment or care causally
28   related to the paraplegia, quadriplegia, or physical brain damage,
29   shall be paid during the life of the injured employee, without
30   regard to any limitation in this title including the maximum
31   compensation limit. In addition, in cases of partial permanent
32   partial disability, prosthetic devices shall be also furnished during
33   the life of the injured employee or so for as long as they such
34   devices are necessary.”
35      SECTION 12. Section 42-17-90 of the 1976 Code is amended
36   to read:
37      “Section 42-17-90. (A) Upon its own motion or upon the
38   application of any party in interest on the ground of a change in
39   condition, the commission may review any award and on such
40   review may make an award ending, diminishing, or increasing the
41   compensation previously awarded, subject to the maximum or
42   minimum provided in this title, and shall immediately send to the
43   parties a copy of the order changing the award. No such review

     [332-13]
 1   shall affect such award as regards any moneys paid and no such
 2   review shall be made after twelve months one year from the date
 3   of the last payment of compensation pursuant to an award under
 4   this title.
 5      (B) A motion or application for change in condition involving a
 6   repetitive trauma injury must be made within one year from the
 7   date of the last compensation payment for the repetitive trauma
 8   injury. Any filing not made within this one-year period shall be
 9   considered untimely and shall not be reviewed.
10      (C) A motion or application for change in condition involving
11   an occupational disease must be made within one year from the
12   date of the last compensation payment for the occupational
13   disease. Any filing not made within this one-year period shall be
14   considered untimely and shall not be reviewed.”
15      SECTION 13. The 1976 Code is amended by adding:
16      “Section 42-1-700. (A) Injured or affected body parts and
17   conditions shall be set forth with as much specificity as possible on
18   the commission’s Employee’s Notice of Claim and/or Request for
19   Hearing form, hereinafter referred to as Form 50. A Form 50 shall
20   not describe the injured body part(s) or condition(s) as ‘whole
21   person’, ‘whole body’, ‘all body parts’, or other similar language
22   unless the injured employee died as a result of the accident. No
23   hearing shall be held on a Form 50 which does not conform to the
24   requirements of this subsection.
25      (B) Nothing in this section prohibits a commissioner from
26   determining the compensability of a body part or condition not
27   listed or described on a Form 50 if:
28         (1) the body part or condition is proved by a preponderance
29   of the evidence to have arisen from the injury or injuries out of and
30   in the course of employment as set forth on the Form 50;
31         (2) it is proven to the satisfaction of the commissioner that
32   the employee had no knowledge of the injury or condition on the
33   date of the completion of the Form 50. However, the employee is
34   required to amend the Form 50 upon discovery of the injury or
35   condition within a reasonable time period pursuant to regulation;
36   or
37         (3) in the case of a represented employee, the body part or
38   condition is set forth on the commission’s Pre-Hearing Brief form,
39   and such pre-hearing brief is timely filed with the commission and
40   timely served upon the parties.
41      (C) A Form 50 must be signed by an attorney if the employee is
42   represented, verifying that the contents of the form are accurate
43   and true to the best of the attorney’s knowledge. If the employee

     [332-14]
 1   is not represented, the employee who signs a Form 50 must verify
 2   that the contents of the form are accurate and true to the best of the
 3   employee’s knowledge.”
 4      SECTION 14. The 1976 Code is amended by adding:
 5      “Section 42-1-705. (A) The commission’s Employer’s Answer
 6   to Request for Hearing form, hereinafter referred to as Form 51,
 7   must describe with as much specificity as possible the defenses to
 8   be relied upon by the defendants. A Form 51 shall not state that
 9   ‘all defenses apply’ or other similar language, unless such is
10   actually the case. Failure to timely file a Form 51 constitutes an
11   admission of the facts contained in the Form 50, unless the
12   commission determined the failure to timely file a Form 51 is
13   attributable to excusable neglect. A Form 51 which does not
14   conform to the requirements of this subsection shall not be
15   considered at a hearing.
16      (B) Nothing in this section prohibits a commissioner from
17   considering a defense not listed on a Form 51 if:
18         (1) it is proven to the satisfaction of the commissioner that
19   the defendants had no knowledge of the facts supporting the
20   defense on the date of the completion of the Form 51; and
21         (2) in the case of represented defendants, the defense
22   omitted on the Form 51 is set forth on the commission’s
23   Pre-Hearing Brief form, and such brief is timely filed with the
24   commission and timely served upon the parties.
25      (C) A Form 51 must be signed by an attorney, verifying that the
26   contents of the form are accurate and true to the best of the
27   attorney’s knowledge. If the employer is unrepresented and
28   completes a Form 51, the employer must sign the form, verifying
29   that the contents are accurate and true to the best of the employer’s
30   knowledge.”
31      SECTION 15. Section 42-3-20 of the 1976 Code is amended
32   to read:
33      Section 42-3-20. (A) The commission shall consist of seven
34   nine members appointed by the Governor with the advice and
35   consent of the Senate for terms of six years and until their
36   successors are appointed and qualify. In the event the Governor
37   does not fill a vacancy within sixty days after the vacancy occurs,
38   the commission by majority vote shall deputize a person with
39   suitable experience, training, and knowledge to serve as a deputy
40   commissioner to serve until such time as the Governor fills the
41   vacancy. As soon as the Governor appoints a replacement who is
42   confirmed by the Senate, the deputy commissioner shall
43   immediately cease to serve in that office. While serving as a

     [332-15]
 1   deputy commissioner, the deputy commissioner has the power and
 2   authority to swear or cause the witnesses to be sworn and shall
 3   transmit all testimony and shall make a recommendation to the
 4   commission for an award. The commission must determine the
 5   award based upon testimony received by the deputy commissioner
 6   and may consider the deputy commissioner’s recommendation.
 7      (B) The Governor, with the advice and consent of the Senate,
 8   shall designate one commissioner as chairman for a term of two
 9   years, and the chairman may serve two terms in during his six-year
10   term but not consecutively. At the conclusion of a commissioner’s
11   two-year term as chairman, the Governor shall appoint another
12   chairman. If the Governor does not appoint another chairman at
13   the expiration of the two-year term, a majority of the commission
14   shall elect from among their members an interim chairman who
15   shall serve until the Governor appoints another chairman other
16   than the one last appointed. A deputy commissioner is not eligible
17   to serve as chairman.
18      (C) The commissioners shall hear and determine all contested
19   cases, conduct informal conferences when necessary, approve
20   settlements, hear applications for full Commission commission
21   reviews, and handle such other matters as may come before the
22   department for judicial disposition. Full Commission commission
23   reviews shall be conducted by six all commissioners only, with the
24   original hearing commissioner not sitting at such reviews. When
25   one commissioner is temporarily incapacitated or a vacancy exists
26   on the Commission, reviews may be conducted by the five
27   remaining commissioners but in such cases decisions of the
28   hearing commissioner shall not be reversed except on the vote of at
29   least four commissioners; provided, however, that effective July 1,
30   1981 full Commission reviews may be conducted, excluding the
31   original hearing commissioner, or by three-member panels
32   composed of three commissioners, excluding the original hearing
33   commissioner, appointed by the chairman excluding the original
34   hearing commissioner. The chairman, with unanimous approval of
35   a majority of the other commissioners, shall determine which full
36   commission reviews shall be assigned to panels. The decisions of
37   such three-member panels shall have the same force and effect as
38   nonpanel full commission reviews.”
39      SECTION 16. Section 42-3-60 of the 1976 Code is amended
40   to read:
41      “Section 42-3-60. Each commissioner shall be authorized to
42   employ a secretary and a court reporter an administrative assistant
43   to serve at his the commissioner’s pleasure.”

     [332-16]
 1      SECTION 17. Section 42-3-230 of the 1976 Code is amended
 2   to read:
 3      “Section 42-3-230. The Commission commisson may from time
 4   to time, as it may deem consider advisable, destroy any of its
 5   inactive files that are at least five fifteen years old. The
 6   commission may maintain these files in either paper or electronic
 7   form. No files of the Commission commission shall be deemed
 8   considered inactive until the Commission commission is satisfied
 9   that they the files will be of no further use.”
10      SECTION 18. Section 42-9-60 of the 1976 Code is amended
11   to read:
12         “Section 42-9-60. No compensation shall be payable if the
13   injury or death was occasioned by the intoxication of the employee
14   or by the willful intention of the employee to injure or kill himself
15   or another. In the event that any person claims that the provisions
16   of this section are applicable in any case, the burden of proof shall
17   be upon such person.”
18      SECTION 19. Section 42-9-390 of the 1976 Code is amended
19   to read:
20      “Section 42-9-390. Nothing contained in this chapter may be
21   construed so as to prevent settlements made by and between an
22   employee and employer so as long as the amount of compensation
23   and the time and manner of payment are in accordance with the
24   provisions of this title. A copy of the settlement agreement must
25   be filed by the employer with and approved by only one member
26   of the commission if the employee is represented by an attorney.
27   If the employee is not represented by an attorney, a copy of the
28   settlement agreement must be filed by the employer with and
29   approved by four members of the commission. The employer must
30   file a copy of the settlement agreement with the commission if
31   each party is represented by an attorney. If the employee is not
32   represented by an attorney, a copy of the settlement agreement
33   must be filed by the employer with the commission and approved
34   by one member of the commission.”
35      SECTION 20. Section 42-15-20 of the 1976 Code is amended
36   to read:
37      “Section 42-15-20. (A) Every injured employee or his
38   representative shall immediately on the occurrence of an accident,
39   or as soon thereafter as practicable, give or cause to be given to the
40   employer a notice of the accident and the employee shall not be
41   entitled to physician ‘s fees nor to any compensation which may
42   have accrued under the terms of this title prior to the giving of such
43   notice, unless it can be shown that the employer, his agent, or

     [332-17]
 1   representative, had knowledge of the accident or that the party
 2   required to give such notice had been prevented from doing so by
 3   reason of physical or mental incapacity or the fraud of deceit of
 4   some third person.
 5      (B) No Except as provided in subsection (C), no compensation
 6   shall be payable unless such notice is given within ninety days
 7   after the occurrence of the accident or death, unless reasonable
 8   excuse is made to the satisfaction of the commission for not giving
 9   such timely notice, and the commission is satisfied that the
10   employer has not been prejudiced thereby.
11      (C) In the case of repetitive trauma, notice must be given by the
12   employee within ninety days of the date the employee discovered,
13   or could have discovered by exercising reasonable diligence, that
14   his condition is compensable, unless reasonable excuse is made to
15   the satisfaction of the commission for not giving timely notice, and
16   the commission is satisfied that the employer has not been unduly
17   prejudiced thereby.”
18      SECTION 21. Section 42-15-95 of the 1976 Code is amended
19   to read:
20      “Section 42-15-95. (A) Any employee who seeks treatment for
21   any injury, disease, or condition for which compensation is sought
22   under the provisions of this title shall be considered to have given
23   his consent for the release of medical records relating to such
24   examination or treatment under any applicable law or regulation.
25   All existing information compiled by a health care facility, as
26   defined in Section 44-7-130, or a health care provider licensed
27   pursuant to        Title 40 pertaining directly to a workers’
28   compensation claim must be provided to the insurance carrier, the
29   employer, the employee, their respective attorneys or certified
30   rehabilitation professionals, or the South Carolina Workers’
31   Compensation Commission, within fourteen days after receipt of
32   written request. A health care facility and a health care provider
33   may charge a fee for the search and duplication of a medical
34   record, but the fee may not exceed sixty-five cents per page for the
35   first thirty pages and fifty cents per page for all other pages, and a
36   clerical fee for searching and handling not to exceed fifteen dollars
37   per request plus actual postage and applicable sales tax. The
38   facility or provider may charge a patient or the patient’s
39   representative no more than the actual cost of reproduction of an
40   X-ray. Actual cost means the cost of materials and supplies used
41   to duplicate the X-ray and the labor and overhead costs associated
42   with the duplication. in accordance with regulations promulgated
43   by the Workers’ Compensation Commission. Fee schedules

     [332-18]
 1   established through regulations of the Workers’ Compensation
 2   Commission shall apply only to claims under Title 42. If a
 3   treatment facility or physician health care provider fails to send the
 4   requested information within forty-five thirty days after receipt of
 5   the request, the person or entity making the request may apply to
 6   the commission for an appropriate penalty payable to the
 7   commission, not to exceed two hundred dollars.
 8      (B) The insurance carrier, employer, employee, their respective
 9   attorneys, certified rehabilitation professionals, or the commission
10   may submit a written request to the health care provider who
11   provides examination or treatment for any injury, disease, or
12   condition for which compensation is sought under the provisions
13   of this title for a written response to the following questions, or
14   completion of a form promulgated by the commission, within
15   fourteen days after the written request:
16        (1) What is the employee’s injury, disease, or condition for
17   which treatment is being rendered?
18        (2) What is the diagnosis of the employee’s injury, disease,
19   or condition?
20        (3) Did the employee’s employment cause, aggravate,
21   accelerate, exacerbate, or contribute to the injury, disease, or
22   condition for which treatment is being rendered?
23        (4) What treatment has been rendered?
24        (5) Did the employee have any preexisting injury, disease, or
25   condition that was aggravated, accelerated, or exacerbated by the
26   employee’s employment?
27        (6) What treatment do you recommend?
28        (7) What is the employee’s temporary work status and/or
29   work restrictions?
30        (8) If at maximum medical improvement, the date maximum
31   medical improvement achieved and what degree permanent
32   impairment sustained?
33        (9) If at maximum medical improvement, what medical
34   treatment is necessary to provide relief or maintain work status or
35   level of function?
36        (10) If at maximum medical improvement, what is the
37   employee’s permanent work status, employment disability, or
38   permanent work restrictions?
39      The employee must be provided with a copy of the written
40   questions at the same time the questions are submitted to the health
41   care provider. If it is not practicable to provide the employee with
42   a copy at the same time as the health care provider, the employee
43   must be provided with a copy of the questions within two business

     [332-19]
 1   days after submission of the questions to the health care provider.
 2   The employee must also be provided with a copy of the response
 3   by the health care provider. A reasonable fee for answering the
 4   questions may be charged, in accordance with the established
 5   practice of health care providers in the district where the claim is
 6   pending, to be paid by the party requesting the responses.
 7      (C) A health care provider who provides examination or
 8   treatment for any injury, disease, or condition for which
 9   compensation is sought under the provisions of this title may
10   discuss or communicate an employee’s medical history, diagnosis,
11   causation, course of treatment, prognosis, work restrictions, and
12   impairments with the insurance carrier, employer, their respective
13   attorneys or certified rehabilitation professionals, or the
14   commission without the employee’s consent. The employee must
15   be:
16        (1) notified by the employer, carrier, or its representative
17   requesting the discussion or communication with the health care
18   provider in a timely fashion, in writing or orally, of the discussion
19   or communication. This notification must occur prior to the actual
20   discussion or communication if the physician, surgeon, or other
21   health care provider knows the discussion or communication will
22   occur in the near future;
23        (2) advised by the employer, carrier, or its representative
24   requesting the discussion or communication with the health care
25   provider of the nature of the discussion or communication prior to
26   the discussion or communication; and
27        (3) provided access to any medical documents or other
28   information to be shown or disclosed to or by the physician,
29   surgeon, other health care provider prior to the discussion or
30   communication.
31      Any discussion or communication must not conflict with or
32   interfere with the employee’s examination or treatment.
33      A reasonable fee for legal discussions or communications may
34   be charged at a rate in accordance with the established practice of
35   health care providers in the district where the claim is pending, to
36   be paid by the party requesting the discussion or communication.
37      Any discussions, communications, medical reports, or opinions
38   obtained in accordance with this section will not constitute a
39   breach of the physician’s duty of confidentiality.
40      (D) Any discussions, communications, medical reports, or
41   opinions obtained in violation of this section must be excluded
42   from any proceedings under the provisions of this title.”


     [332-20]
 1      SECTION 22. Section 42-17-40 of the 1976 Code is amended
 2   to read:
 3      “Section 42-17-40. (A) The commission or any of its members
 4   shall hear the parties at issue and their representatives and
 5   witnesses, and shall determine the dispute in a summary timely
 6   manner. The award, together with a statement of the findings of
 7   fact, rulings of law, and other matters pertinent to the questions at
 8   issue, must be filed with the record of the proceedings, and a copy
 9   of the award decision must immediately be sent to the parties in
10   dispute.
11      In rendering decisions in cases pursuant to this title, the
12   commissioner shall consider all the evidence submitted at the
13   hearing and not only those portions highlighted or excerpted by the
14   parties for the commissioner’s review, unless as otherwise agreed
15   to by the parties. The parties may be heard by a deputy, in which
16   event he shall swear or cause the witnesses to be sworn, and shall
17   transmit all testimony to the commission for its determination and
18   award.
19      (B) In the event any commissioner or member of his family
20   residing in the commissioner’s household or any employee of the
21   Workers’ Compensation Commission commission receives
22   sustains an injury in the course of employment, the case must be
23   heard and determined by the circuit court judge in the county in
24   which the injury occurred. The clerk of court shall docket these
25   cases in the file book for the court of common pleas, and these
26   cases must be heard in that court. These cases may be called up
27   for trial out of their order by either party. An appeal from an order
28   of the circuit court judge, pursuant to this subsection, shall be
29   taken in the manner provided by the South Carolina Appellate
30   Court Rules. If the order is not appealed, payment Payment of an
31   award must be made as provided in Section 42-17-60. However,
32   this subsection does not apply with respect to claims involving
33   medical benefits only; for claims solely involving medical benefits
34   only, subsection (A) applies.”
35      SECTION 23. The 1976 Code is amended by adding:
36      “Section 42-3-175. (A)(1) If a claimant brings an action before
37   the commission to enforce an order authorizing medical treatment
38   or payment of benefits and the commission determines that an
39   insurer, a self-insured employer, a self-insured fund, or an adjuster,
40   without good cause, failed to authorize medical treatment and/or
41   pay benefits when ordered to do so by the commission, the insurer,
42   the self-insured employer, the self-insured fund, or the adjuster
43   must pay the claimant’s attorneys’ fees and costs of enforcing the

     [332-21]
 1   order. The commission may impose sanctions for willful
 2   disobedience of an order, including, but not limited to, a fine of up
 3   to five hundred dollars for each day of the violation.
 4         (2) The commission must notify the Department of
 5   Insurance of an insurer’s or an adjuster’s failure to authorize and
 6   pay benefits for medical treatment. If the Director of the
 7   Department of Insurance or his or her designee determines that
 8   there has been a violation of any provision of Title 38, he may
 9   impose penalties for each violation, including, but not limited to,
10   administrative penalties pursuant to Section 38-2-10.
11      (B)(1) If the commission discovers a pattern of an insurer
12   failing to pay benefits pursuant to an award, as defined in item (2),
13   the chairman must notify the Director of the Department of
14   Insurance. The director or his or her designee must hold a hearing
15   to determine if the insurer had good cause for nonpayment. If the
16   director or his or her designee determines that nonpayment was
17   intentional three or more times within a two-year period, the
18   director may revoke the license of the insurer to do business in this
19   State. If the director or his or her designee revokes the license of
20   the insurer, he must take any steps he considers necessary for the
21   protection of the insurer’s policyholders in this State.
22         (2) For purposes of this section, a pattern is established upon
23   an insurer’s failure to pay an award at least three times within a
24   two-year period by failing to pay:
25           (a) for individual claims;
26           (b) for a claim in which the claimant had to request
27   enforcement of an award; or
28           (c) any combination of subitems (a) and (b).
29         (3) All fines collected pursuant to this subsection must be
30   submitted to the General Fund.”
31      SECTION 24. Section 42-17-60 of the 1976 Code is amended
32   to read:
33      “Section 42-17-60. The award of the commission, as provided in
34   Section 42-17-40, if not reviewed in due time, or an award of the
35   commission upon such the review, as provided in Section
36   42-17-50, is conclusive and binding as to all questions of fact.
37   However, either party to the dispute, within thirty days from the
38   date of the award or within thirty days after receipt of notice to be
39   sent by registered mail of the award, but not thereafter after
40   whichever is the longest, may appeal from the decision of the
41   commission to the court of common pleas of the county in which
42   the alleged accident happened, or in which the employer resides or
43   has his principal office, for errors of law under the same terms and

     [332-22]
 1   conditions as govern appeals in ordinary civil actions appeals.
 2   Notice of appeal must state the grounds of the appeal or the alleged
 3   errors of law. In case of an appeal from the decision of the
 4   commission on questions of law, the appeal does not operate as a
 5   supersedeas and thereafter after that time the employer is required
 6   to make payment of the award weekly payments of compensation
 7   and to provide medical treatment ordered by the commission
 8   involved in the appeal or certification until the questions at issue
 9   have been fully determined in accordance with the provisions of
10   this title. Interest accrues on an unpaid portion of the award at the
11   legal rate of interest as established in Section 34-31-20(B) during
12   the pendency of an appeal.”
13      SECTION 25. Section 42-5-40 of the 1976 Code is amended
14   to read:
15      “Section 42-5-40. Any employer required to secure the
16   payment of compensation under this title who refuses or neglects
17   to secure such compensation shall be punished by a fine of ten
18   cents one dollar for each employee at the time of the insurance
19   becoming due, but not less than one dollar ten dollars nor more
20   than fifty one hundred dollars for each day of such refusal or
21   neglect, and until the same ceases, and he shall be liable during
22   continuance of such refusal or neglect to an employee either for
23   compensation under this title or at law in an action instituted by the
24   employee or his personal representative against such employer to
25   recover damages for personal injury or death by accident and in
26   any such action such employer shall not be permitted to defend
27   upon any of the grounds mentioned in Section 42-1-510.
28      The fine provided in this section may be assessed by the
29   commission in an open hearing with the right of review and appeal
30   as in other cases. All fines collected pursuant to this section must
31   be submitted to the General Fund.”
32      SECTION 26. Section 1-23-600(D) of the 1976 Code is
33   amended to read:
34      “(D) An administrative law judge also shall preside over all
35   appeals from final decisions of contested cases pursuant to the
36   Administrative Procedures Act, Article I, Section 22, Constitution
37   of the State of South Carolina, 1895, or another law, except that an
38   appeal from a final order of the Public Service Commission and
39   the State Ethics Commission is to the Supreme Court or the court
40   of appeals as provided in the South Carolina Appellate Court
41   Rules, an appeal from the Procurement Review Panel is to the
42   circuit court as provided in Section 11-35-4410, an appeal from the
43   Workers’ Compensation Commission is to the circuit court court

     [332-23]
 1   of appeals as provided in Section 42-17-60, and an appeal from the
 2   Employment Security Commission is to the circuit court as
 3   provided in Section 41-35-750.”
 4      SECTION 27. Section 14-8-200(a) of the 1976 Code is
 5   amended to read:
 6      “(a) Except as limited by subsection (b) and Section 14-8-260,
 7   the court has jurisdiction over any case in which an appeal is taken
 8   from an order, judgment, or decree of the circuit court, family
 9   court, a final decision of an agency, or a final decision of an
10   administrative law judge, or the final decision of the Workers’
11   Compensation Commission. This jurisdiction is appellate only,
12   and the court shall apply the same scope of review that the
13   Supreme Court would apply in a similar case. The court has the
14   same authority to issue writs of supersedeas, grant stays, and grant
15   petitions for bail as the Supreme Court would have in a similar
16   case. The court, to the extent the Supreme Court may by rule
17   provide for it to do so, has jurisdiction to entertain petitions for
18   writs of certiorari in post-conviction relief matters pursuant to
19   Section 17-27-100.”
20      SECTION 28. (A)(1) A            South     Carolina      Workers’
21   Compensation Study Committee is created to study other states’
22   workers’ compensation laws as they relate to awards.
23         (2) The study committee must make a report of its findings
24   to the President Pro Tempore of the Senate and the Speaker of the
25   House of Representatives. In preparing its report, the study
26   committee must consider:
27           (a) statutes, pending legislation, and case law in other
28   states; and
29           (b) information solicited from or provided by experts,
30   studies, and scholarly articles regarding methods and limitations on
31   workers’ compensation awards and the effects on premiums and
32   worker benefits.
33      Emphasis must be placed on states with objective standards for
34   awards, including Florida, Minnesota and New Mexico.
35      (B) The study committee must be composed of six members to
36   be appointed as follows:
37         (1) three members of the Senate to be appointed by the
38   President Pro Tempore of the Senate; and
39         (2) three members of the House of Representatives to be
40   appointed by the Speaker of the House of Representatives.
41      (C) The President Pro Tempore of the Senate and the Speaker
42   of the House of Representatives shall provide staffing for the study
43   committee.

     [332-24]
 1      (D) The study committee must render its report and
 2   recommendations to the President Pro Tempore of the Senate and
 3   the Speaker of the House no later than January 15, 2009, at which
 4   time the study committee must be dissolved.”
 5      SECTION 29. The 1976 Code is amended by adding:
 6      “Section 42-9-35. (A) If an employee has a permanent
 7   physical impairment or preexisting condition and incurs a
 8   subsequent disability from an injury arising out of and in the
 9   course of his employment, the commission may award
10   compensation benefits for the combined disability of the
11   permanent physical impairment or preexisting condition and the
12   subsequent injury.        The employee must establish by a
13   preponderance of the evidence, including medical evidence, that
14   the subsequent injury aggravated the permanent physical
15   impairment or the preexisting condition or the permanent physical
16   impairment or preexisting condition aggravates the subsequent
17   injury. However, if the subsequent injury is limited to a single
18   body part or member scheduled in Section 42-9-30, except the
19   back, the subsequent injury must impair or affect another body part
20   or system in order to obtain benefits in addition to those provided
21   for in Section 42-9-30.
22      (B) The provisions of this section apply whether or not the
23   employer knows of the preexisting permanent disability.
24      (C) On and after the effective date of this section, an employee
25   who suffers a subsequent injury which affects a single body part or
26   member injury set forth in Section 42-9-30 is limited to the
27   recovery set forth in that section.”
28      SECTION 30. Section 42-9-150 of the 1976 Code is amended
29   to read:
30      “Section 42-9-150. If an employee has a permanent disability or
31   has sustained a permanent injury in service in the Army or Navy of
32   the United States that resulted from serving in the United States
33   Armed Forces or in another employment other than that in which
34   he receives a subsequent permanent injury by accident, such as
35   specified in Section 42-9-30 or the second paragraph of Section
36   42-9-10, he shall be entitled to compensation only for the degree of
37   disability which would have resulted from the later accident if the
38   earlier disability or injury had not existed, except that such
39   employee may receive further benefits as provided by Sections
40   42-7-310, 42-9-400 and 42-9-410 Title if his subsequent injury
41   qualifies for additional benefits provided therein under Section
42   42-9-35.”


     [332-25]
 1      SECTION 31. Section 42-9-170 of the 1976 Code is amended
 2   to read:
 3      “Section 42-9-170. If an employee receives a permanent injury
 4   as specified in Section 42-9-30 or the second paragraph of Section
 5   42-9-10 after having sustained another permanent injury in the
 6   same employment, he shall be entitled to compensation for both
 7   injuries, but the total compensation shall be paid by extending the
 8   period and not by increasing the amount of weekly compensation,
 9   and in no case exceeding five hundred weeks. If an employee has
10   previously incurred permanent partial disability through the loss of
11   a hand, arm, foot, leg, or eye and by subsequent accident incurs
12   total permanent disability through the loss of another member, the
13   employer’s liability is for the subsequent injury only, except that
14   such employee may receive further benefits as provided by
15   Sections 42-7-310, 42-9-400 and 42-9-410 if his subsequent injury
16   qualifies for additional benefits provided therein under the
17   provisions of Section 42-9-35.”
18      SECTION 32. Sections 42-1-350, 42-1-370, 42-1-375, and
19   42-9-80 of the 1976 Code are repealed.
20                                  PART II
21                             Second Injury Fund
22      SECTION 1. Section 38-73-495 of the 1976 Code is amended
23   to read:
24      “Section 38-73-495. The director or his designee may:
25      (1) disapprove a previously approved rate for any classification
26   for workers’ compensation insurance upon a finding that the rate
27   for that classification is excessive, inadequate, or unfairly
28   discriminatory;
29      (2) require the division of a particular classification into
30   separate classifications, or the joining of separate classifications
31   into one classification, upon a finding that such action is in the
32   public interest;
33      (3) direct that a particular risk be classified in a particular
34   classification upon a finding that a risk is classified incorrectly;
35      (4) disapprove an experience modification rate for workers’
36   compensation insurance upon a finding that the rate is excessive,
37   inadequate, or unfairly discriminatory.             This includes an
38   experience modification rate that fails to account for third party
39   reimbursements, including the Second Injury Fund. Appeals
40   regarding experience modification rates must first be exhausted
41   through the National Council on Compensation Insurance’s dispute
42   resolution process prior to appealing with the Department of
43   Insurance.

     [332-26]
 1      Appeals to the department must be filed within one year of
 2   policy expiration date or cancellation date, whichever comes first.”
 3      SECTION 2. Section 42-7-310(d)(2) of the 1976 Code is
 4   amended to read:
 5      “(2) equitable assessments upon each carrier which, as used in
 6   this section, includes all insurance carriers, self-insurers, and the
 7   State Accident Fund. Each carrier shall make payments to the
 8   fund in an amount equal to that proportion of one hundred
 9   seventy-five percent one hundred thirty-five percent of the total
10   disbursement made from the fund during the preceding fiscal year
11   less the amount of net assets in the fund as of June thirtieth of the
12   preceding fiscal year which the normalized premium of each
13   carrier bore to the normalized premium of all carriers during the
14   preceding calendar year. Each insurance carrier, self-insurer, and
15   the State Accident Fund shall make payment based upon workers
16   ‘compensation normalized premiums during the preceding
17   calendar year. The charge to each insurance carrier is a charge
18   based upon normalized premiums. An employer who has ceased to
19   be a self-insurer shall continue to be liable for any assessments into
20   the fund on account of any benefits paid by him during such
21   calendar year. Any assessment levied or established in accordance
22   with this section constitutes a personal debt of every employer or
23   insurance carrier so assessed and is due and payable to the Second
24   Injury Fund when payment is called for by the fund. In the event
25   of failure to pay any assessment upon the date determined by the
26   fund, the employer or insurance carrier may immediately be
27   assessed a penalty in an amount not exceeding ten percent of the
28   unpaid assessment. If the employer or insurance carrier fails to
29   pay the assessment and penalty, they shall be barred from any
30   recovery from the fund on all claims without exception until the
31   assessment and penalty are paid in full. The director may file a
32   complaint for collection against the employer or insurance carrier
33   in a court of competent jurisdiction for the assessment, penalty,
34   and interest at the legal rate, and the employer/carrier is
35   responsible for attorney’s fees and costs. The penalty and interest
36   under this subsection are payable to the Second Injury Fund. At
37   the time of the filing of the complaint, the fund shall also notify the
38   South Carolina Department of Insurance and the South Carolina
39   Workers’ Compensation Commission, and these government
40   agencies shall take the appropriate legal and administrative action
41   immediately.”
42      SECTION 3. Section 42-9-400 of the 1976 Code is amended to
43   read:

     [332-27]
 1       “Section 42-9-400. (a) If an employee who has a permanent
 2   physical impairment from any cause or origin incurs a subsequent
 3   disability from injury by accident arising out of and in the course
 4   of his employment, resulting in compensation and medical
 5   payments liability or either, for disability that is substantially
 6   greater, by reason of the combined effects of the preexisting
 7   impairment and subsequent injury or by reason of the and is caused
 8   by aggravation of the preexisting impairment, than that which
 9   would have resulted from the subsequent injury alone, the
10   employer or his insurance carrier shall in the first instance pay all
11   awards of compensation and medical benefits provided by this
12   title; but such employer or his insurance carrier shall be
13   reimbursed from the Second Injury Fund as created by Section
14   42-7-310 for compensation and medical benefits in the following
15   manner:
16          (1) reimbursement of all compensation benefit payments
17   payable subsequent to those payable for the first seventy-eight
18   weeks following the injury.;
19          (2) reimbursement of fifty percent of medical payments in
20   excess of three thousand dollars during the first seventy-eight
21   weeks following the injury and then reimbursement of all medical
22   benefit payments payable subsequent to the first seventy-eight
23   weeks following the injury; provided, however, in order to obtain
24   reimbursement for medical expense during the first seventy-eight
25   weeks following the subsequent injury, an employer or carrier
26   must establish that his liability for medical payments is
27   substantially greater, by reason of the combined effects of the
28   preexisting impairment and subsequent injury or by reason of the
29   aggravation of the preexisting impairment, than that which would
30   have resulted from the subsequent injury alone.
31       (b) If the subsequent injury of such an employee shall result in
32   the death of the employee, and it shall be determined that the death
33   would not have occurred except for such preexisting permanent
34   physical impairment, the employer or his insurance carrier shall in
35   the first instance pay the compensation prescribed by this title; but
36   he or his insurance carrier shall be reimbursed from the Second
37   Injury Fund created by Section 42-7-310, for all compensation
38   payable in excess of seventy-eight weeks.
39       (c) In order to qualify under this section for reimbursement
40   from the Second Injury Fund, the employer must establish when
41   claim is made for reimbursement thereunder, that the employer had
42   knowledge of the permanent physical impairment at the time that
43   the employee was hired, or at the time the employee was retained

     [332-28]
 1   in employment after the employer acquired such knowledge.
 2   However, the employer may qualify for reimbursement hereunder
 3   upon proof that he did not have prior knowledge of the employee’s
 4   preexisting physical impairment because the existence of the
 5   condition was concealed by the employee.
 6      (d) As used in this section, ‘permanent physical impairment’
 7   means any permanent condition, whether congenital or due to
 8   injury or disease, of such seriousness as to constitute a hindrance
 9   or obstacle to obtaining employment or to obtaining reemployment
10   if the employee should become unemployed.
11      When an employer establishes his prior knowledge of the
12   permanent impairment, then there shall be a presumption that the
13   condition is permanent and that a hindrance or obstacle to
14   employment or reemployment exists when the condition is one of
15   the following impairments:
16         (1) Epilepsy;
17         (2) Diabetes;
18         (3) Cardiac disease;
19         (4) Arthritis
20         (5)(4) Amputated foot, leg, arm or hand;
21         (6)(5) Loss of sight of one or both eyes or partial loss of
22   uncorrected vision of more than seventy-five percent bilateral;
23         (7)(6) Residual disability from Poliomyelitis;
24         (8)(7) Cerebral palsy;
25         (9)(8) Multiple sclerosis;
26         (10)(9) Parkinson’s disease;
27         (11)(10) Cerebral vascular accident;
28         (12)(11) Tuberculosis;
29         (13)(12) Silicosis;
30         (14)(13) Psychoneurotic disability following treatment in a
31   recognized medical or mental institution;
32         (15)(14) Hemophilia;
33         (16)(15) Chronic ostemyelitis;
34         (17)(16) Ankylosis of joints;
35         (18)(17) Hyperinsulinism;
36         (19)(18) Muscular dystrophy;
37         (20)(19) Arteriosclerosis;
38         (21)(20) Thrombophlebitis;
39         (22)(21) Varicose Veins;
40         (23)(22) Heavy metal poisoning;
41         (24)(23) Ionizing radiation injury;
42         (25)(24) Compressed air sequelae;
43         (26)(25) Ruptured intervertebral disc;

     [332-29]
 1         (27)(26) Hodgkins disease;
 2         (28)(27) Brain damage;
 3         (29)(28) Deafness;
 4         (30)(29) Cancer;
 5         (31)(30) Sickle-cell anemia;
 6         (32)(31) Pulmonary disease;
 7         (33)(32) Mental retardation provided the employee’s
 8   intelligence quotient is such that he falls within the lowest
 9   percentile of the general population. However, it shall not be
10   necessary for the employer to know the employee’s actual
11   intelligence quotient or actual relative ranking in relation to the
12   intelligence quotient of the general population.
13         (34) Any other pre-existing disease, condition or impairment
14   which is permanent in nature and which:
15            (a) Would qualify for payment of weekly disability
16   benefits of seventy-eight weeks or more under Section 42-9-30
17   exclusive of benefits payable for disfigurement; or
18            (b) Would support a rating of seventy-eight or more
19   weeks of weekly disability benefits when evaluated according to
20   the standards applied to Workers’ Compensation claims in South
21   Carolina, or combines with a subsequent injury to cause a
22   permanent impairment rated at seventy-eight weeks or more under
23   Section 42-9-30.
24      (e) The Second Injury Fund shall not be bound as to any
25   question of law or fact by reason of any compensation agreement,
26   settlement, award, and adjudication to which it was not a party, or
27   in relation to which it was not notified at least twenty days prior to
28   a hearing on liability that it might be subject to liability for the
29   injury or death.
30      (f) An employer or his carrier shall must notify the Industrial
31   Commission Workers’ Compensation Commission and the
32   Director of the Second Injury Fund in writing of any possible
33   claim against the fund as soon as practicable but in no event later
34   than after the payment of the first seventy-eight weeks of
35   compensation. This written notice must provide the:
36         (i) date of accident;
37         (ii) employee’s name;
38         (iii) employer’s name and address;
39         (iv) insurance carrier’s name, address, and the National
40   Council on Compensation Insurance code; and
41         (v) insurance carrier’s claim number, policy number, and
42   policy effective date. The carrier claim number is the unique
43   identifier a carrier uses throughout the life of a claim to report that

     [332-30]
 1   claim to the National Council on Compensation Insurance. Failure
 2   to comply with the provisions of this subsection shall bar an
 3   employer or his carrier from recovery from the fund.
 4      (g) If the employee has a permanent physical impairment, as
 5   defined in this section and the prerequisites for reimbursement
 6   have been met, and if it can be shown that the subsequent injury
 7   most probably would not have occurred ‘but for’ the presence of
 8   the prior impairment, then reimbursement will be granted as
 9   provided in this section even if the combined effects or the
10   aggravation of the preexisting condition by the subsequent injury
11   does not cause the employer’s liability for compensation and
12   medical benefits to be substantially greater than that which would
13   have resulted from the subsequent injury alone.
14      (h) When a third party is deemed to be an employer for the
15   purposes of paying workers’ compensation benefits, that third
16   party will be entitled to reimbursement from the Second Injury
17   Fund if either he or the employer of record have met the
18   knowledge requirements outlined in this section, as well as all
19   other requirements.
20      (i) The Second Injury Fund is entitled to a credit for sums
21   recovered by the employer or his workers’ compensation carrier
22   from third parties, after the employer or his workers’ compensation
23   carrier have been reimbursed for the moneys paid out by them and
24   not reimbursed by the fund.
25      (j) The Second Injury Fund can enter into compromise
26   settlements at the discretion of the director with approval of a
27   majority of the Industrial Commission Workers’ Compensation
28   Commission, provided a bona fide dispute exists.
29      (k) Any employer operating in violation of Section 42-5-20 is
30   not eligible for reimbursement from the South Carolina Second
31   Injury Fund.
32      (l) As a prerequisite to reimbursement from the fund, the
33   insurer shall be required to certify that the medical and indemnity
34   reserves have been reduced to the threshold limits of
35   reimbursement and report in accordance with the National Council
36   on Compensation Insurance Workers’ Compensation Statistical
37   Plan.
38      (m) The Second Injury Fund director must quarterly submit to
39   the National Council on Compensation Insurance information
40   regarding Second Injury Fund accepted claims.
41      (n) The National Council on Compensation Insurance must
42   submit a report of any discrepancies pursuant to regulations
43   established by the Department of Insurance. The Department of

     [332-31]
 1   Insurance is directed to establish regulations concerning Second
 2   Injury Fund discrepancies.”
 3      SECTION 4. Section 42-7-200 of the 1976 Code is amended to
 4   read:
 5      “Section 42-7-200. (A)(1) There is hereby established, within
 6   the office of the Second Injury Fund, the South Carolina Workers’
 7   Compensation Uninsured Employers’ Fund. This fund is created
 8   to ensure payment of workers’ compensation benefits to injured
 9   employees whose employers have failed to acquire necessary
10   coverage for employees in accordance with provisions of this
11   section. The fund must be administered by the director of the
12   Second Injury Fund, who shall establish procedures to implement
13   this section, until June 30, 2013. Effective July 1, 2013, all
14   functions within the Second Injury Fund related to the Uninsured
15   Employers’ Fund, including all allied, advisory, affiliated, or
16   related entities, as well as the employees, funds, property, and all
17   contractual rights and obligations associated with the Uninsured
18   Employers’ Fund, is transferred to the South Carolina Workers’
19   Compensation Uninsured Employers’ Fund, and all powers, duties,
20   obligations, and responsibilities of the Second Injury Fund that
21   relate to the Uninsured Employers’ Fund are devolved upon the
22   South Carolina Workers’ Compensation Uninsured Employers’
23   Fund in accordance with the Budget and Control Board’s plan for
24   the closure of the Second Injury Fund. This subitem is effective
25   until July 1, 2013.
26         (2) There is hereby established, within the office of the State
27   Accident Fund, the South Carolina Workers’ Compensation
28   Uninsured Employers’ Fund. This fund is created to ensure
29   payment of workers’ compensation benefits to injured employees
30   whose employers have failed to acquire necessary coverage for
31   employees in accordance with provisions of this section. The fund
32   must be administered by the director of the State Accident Fund,
33   who shall establish procedures to implement this section. This
34   subitem is effective as of July 1, 2013.”
35      (B) When an employee makes a claim for benefits pursuant to
36   Title 42 and the State Workers’ Compensation Commission
37   determines that the employer is subject to Title 42 and is operating
38   without insurance or as an unqualified self-insurer, the commission
39   shall notify the fund of the claim. The fund shall pay or defend the
40   claim as it considers necessary in accordance with the provisions
41   of Title 42.
42      (C) When the fund is notified of a claim, the fund may place a
43   lien on the assets of the employer by way of lis pendens or

     [332-32]
 1   otherwise so as to protect the fund from payments of costs and
 2   benefits. If the fund is required to incur costs or expenses or to pay
 3   benefits, the fund has a lien against the assets of the employer to
 4   the full extent of all costs, expenses, and benefits paid and may file
 5   notice of the lien with the clerk of court or register of deeds of any
 6   county in which the employer has assets in the same manner as the
 7   filing of South Carolina tax liens and with the Secretary of State in
 8   the same manner as utilized under Title 36 (Uniform Commercial
 9   Code). Any of the employer’s assets sold or conveyed during the
10   litigation of the claim must be sold or conveyed subject to the lien.
11       (D) The fund has all rights of attachment set forth in Section
12   15-19-10 and has the right to proceed otherwise in the collection of
13   its lien in the same manner as the Department of Revenue is
14   allowed to enforce a collection of taxes generally pursuant to
15   Section 12-49-10, et seq. When all benefits due the claimant, as
16   well as all expenses and costs of litigation, have been paid, the
17   fund shall file notice of the total of all monies paid with the clerk
18   of court in any county in which the employer has assets and with
19   the Secretary of State. This notice constitutes a judgment against
20   the employer and has priority as a first lien in the same manner as
21   liens of the Department of Revenue, subject only to the lien of the
22   Department of Revenue pursuant to Section 12-49-10, et seq. If
23   the employer files for bankruptcy or otherwise is placed into
24   receivership, the fund becomes a secured creditor to the assets of
25   the employer in the same manner as the Department of Revenue
26   has priority for unpaid taxes, subject only to the lien of the
27   Department of Revenue. The fund otherwise has all rights and
28   remedies afforded the Department of Revenue as set forth in
29   Section 12-54-10, et seq.
30       (B)(E) Nothing in this section precludes the South Carolina
31   Workers’ Compensation Uninsured Employers’ Fund from
32   entering into an agreement for the reimbursement of expenses,
33   costs, or benefits paid by the fund. If an agreement is entered into
34   subsequent to the filing of a lien, the lien may be canceled by the
35   fund. Provided, however, an agreement between the fund and an
36   employer under this section may provide that in the event the
37   employer breaches the terms or conditions of the agreement, the
38   fund may file or reinstate a lien, as the case may be. For purposes
39   of this section, the term “costs” includes reasonable administrative
40   costs which must be set by the director of the Second Injury Fund
41   fund, subject to the approval of the Workers’ Compensation
42   Commission.


     [332-33]
 1      (C)(F) To establish and maintain the South Carolina Workers’
 2   Compensation Uninsured Employers’ Fund, there must be
 3   earmarked from the collections of the tax on insurance carriers and
 4   self-insured persons provided for in Sections 38-7-50 and 42-5-190
 5   an amount sufficient to establish and annually maintain the fund at
 6   a level of not less than two hundred thousand dollars. In addition,
 7   the State Treasurer may deposit to the account of the fund monies
 8   authorized to be paid to the Workers’ Compensation Commission
 9   under Section 42-9-140 upon determination additional funds are
10   needed for the operation of the fund.
11      (D)(G) When an employee makes a claim for benefits pursuant
12   to Title 42 and the records of the South Carolina Workers’
13   Compensation Commission indicate that the employer is operating
14   without insurance, the South Carolina Workers’ Compensation
15   Uninsured Employers’ Fund or any person designated by the
16   director may subpoena the employer or its agents and require the
17   production of any documents or records which the fund considers
18   relevant to its investigation of the claim. The subpoena shall be
19   returnable at the office of the fund or any place designated by it.
20   In the case of refusal to obey a subpoena issued to any person or
21   agent of any employer, a court of common pleas upon application
22   of the fund may issue an order requiring the person or agent of an
23   employer to appear at the fund and produce documentary evidence
24   or give other evidence concerning the matter under inquiry.”
25      SECTION 5. Chapter 7, Title 42 of the 1976 Code is amended
26   by adding:
27      “Section 42-7-320. (A) Except as otherwise provided in this
28   section, on and after July 1, 2013, the programs and appropriations
29   of the Second Injury Fund are terminated. The Budget and Control
30   Board must provide for the efficient and expeditious closure of the
31   fund with the orderly winding down of the affairs of the fund so
32   that the remaining liabilities of the fund are paid utilizing
33   assessments, accelerated assessments, annuities, loss portfolio
34   transfers, or such other mechanisms as are reasonably determined
35   necessary to fund any remaining liabilities of the fund. The
36   Department of Insurance and Workers’ Compensation
37   Commission may submit comments and suggestions to be
38   considered by the Budget and Control Board in planning for the
39   closure of the fund. The Budget and Control Board shall cause all
40   necessary actions to be taken to provide appropriate staffing of the
41   fund until such time as the staff services are no longer required to
42   administer the obligations of the fund. The fund’s administrative
43   costs, including employee salaries and benefits, shall be paid from

     [332-34]
 1   the Second Injury Fund trust if the interest from the trust becomes
 2   insufficient to these pay these obligations.
 3      (B) After December 31, 2011, the Second Injury Fund shall not
 4   accept a claim for reimbursement from any employer, self-insurer,
 5   or insurance carrier. The fund shall not consider a claim for
 6   reimbursement for an injury that occurs on or after July 1, 2008.
 7        (1) An employer, self-insurer, or insurance carrier must
 8   notify the Second Injury Fund of a potential claim by December
 9   31, 2010. Failure to submit notice by December 31, 2010, shall
10   bar an employer, self-insurer, or insurance carrier from recovery
11   from the fund.
12        (2) An employer, self-insurer, or insurance carrier must
13   submit all required information for consideration of accepting a
14   claim to the Second Injury Fund by June 30, 2011. Failure to
15   submit all required information to the fund by June 30, 2011, so
16   that the claim can be accepted, compromised, or denied shall bar
17   an employer, self-insurer, or insurance carrier from recovery from
18   the fund.
19        (3) Insurance carriers, self-insurers, and the State Accident
20   Fund remain liable for Second Injury Fund assessments, as
21   determined by the Budget and Control Board, in order to pay
22   accepted claims. The fund shall continue reimbursing employers
23   and insurance carriers for claims accepted by the fund on or before
24   December 31, 2011.”
25      SECTION 6. On or before January 15, 2014, the Code
26   Commissioner shall prepare and deliver a report to the President
27   Pro Tempore of the Senate and the Speaker of the House of
28   Representatives of all Code references and cross-references which
29   he considers in need of correction, modification, or repeal insofar
30   as the 1976 Code has been affected by this act. The Code
31   Commissioner also is directed to include in his report how to
32   provide adequate notice to alert code users to the status of the
33   provisions concerning the Second Injury Fund as the fund
34   continues to do business pending its termination.
35                                 PART III
36                            Loss Cost Multiplier
37      SECTION 1. Chapter 73, Title 38 of the 1976 Code is amended
38   to read:
39                                 PART IV
40                      Severability and Time Effective
41      SECTION 1. If any section, subsection, item, subitem,
42   paragraph, subparagraph, sentence, clause, phrase, or word of this
43   act is for any reason held to be unconstitutional or invalid, such

     [332-35]
 1   holding shall not affect the constitutionality or validity of the
 2   remaining portions of this act, the General Assembly hereby
 3   declaring that it would have passed this chapter, and each and
 4   every section, subsection, item, subitem, paragraph, subparagraph,
 5   sentence, clause, phrase, and word thereof, irrespective of the fact
 6   that any one of more other sections, subsections, items, subitems,
 7   paragraphs, subparagraphs, sentences, clauses, phrases, or words
 8   hereof may be declared to be unconstitutional, invalid, or
 9   otherwise ineffective.
10      SECTION 2. This act takes effect on July 1, 2007, and applies
11   to injuries that occur on or after this date. /
12      Renumber sections to conform.
13      Amend title to conform.
14
15   THOMAS L. MOORE for Committee.
16
17
18         STATEMENT OF ESTIMATED FISCAL IMPACT
19        ESTIMATED FISCAL IMPACT ON GENERAL FUND
20                            EXPENDITURES:
21                                See Below
22       ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER
23                        FUND EXPENDITURES:
24                                See Below
25   EXPLANATION OF IMPACT:
26   Workers’ Compensation Commission
27      The commission reports that it would require 4.00 new FTEs for
28   two Commissioners and two Administrative Assistants at an
29   annual cost to the general fund of $530,000 for salary, fringe and
30   other operating expenses. There would also be a non-recurring
31   cost to the general fund of $30,600 for other operating expenses
32   due to office setup.
33   Attorney General’s Office
34      The office reports that it would require 1.00 new FTE for a
35   Forensic Accountant at an annual cost to the general fund of
36   $108,000 for salary, fringe and other operating expenses.
37   State Accident Fund
38      The agency indicates this bill has the potential for a reduced cost
39   of workers’ compensation claims due to clarification of benefits
40   and increased predictability. However, the agency is unable to
41   estimate the reduction in claims expenses due to the multiple
42   numbers of factors involved.


     [332-36]
 1   Second Injury Fund
 2      The fund reports this bill may have a minimal cost to the
 3   Uninsured Employers’ Fund due to an increase in workers’
 4   compensation claims costs.
 5   Department of Insurance
 6      The agency has been forwarded a copy of the bill, and the
 7   response is pending.
 8   Recapitulation
 9      There will be an annual cost to the general fund of $638,000
10   with 5.00 new FTEs and a non-recurring cost to the general fund of
11   $30,600. However, there will also be a savings of general, federal
12   and other funds based on reduced claims costs. Estimated savings
13   amount is undeterminable.
14
15                                    Approved By:
16                                    Don Addy
17                                    Office of State Budget
18
19




     [332-37]
 1
 2
 3
 4
 5
 6
 7
 8
 9                      A BILL
10
11   TO AMEND SECTION 38-55-530, CODE OF LAWS OF
12   SOUTH CAROLINA, 1976, SO AS TO CLARIFY THAT
13   “FALSE STATEMENT AND MISREPRESENTATION”
14   INCLUDES A FALSE BUSINESS ACTIVITY REPORT,
15   MISCOUNT OR MISCLASSIFICATION BY AN EMPLOYER
16   OR EMPLOYEE, OR A FALSE CLAIM MADE BY AN
17   EMPLOYEE TO OBTAIN AN ECONOMIC BENEFIT; TO
18   AMEND SECTION 38-55-540, RELATING TO PENALTIES
19   FOR A FALSE STATEMENT AND MISREPRESENTATION,
20   SO AS TO INCREASE PENALTIES AND CREATE
21   ADDITIONAL CATEGORIES; TO AMEND SECTION
22   38-55-560 BY ADDING SUBPARAGRAPH (E) AUTHORIZING
23   THE ATTORNEY GENERAL TO HIRE A FORENSIC
24   ACCOUNTANT TO BE ASSIGNED TO THE INSURANCE
25   FRAUD DIVISION; TO AMEND SECTION 42-1-160, WHICH
26   DEFINES “INJURY” AND “PERSONAL INJURY”, SO AS TO
27   ESTABLISH THE EMPLOYEE’S BURDEN OF PROOF AND
28   FURTHER EXCLUDE CERTAIN CONDITIONS FROM
29   “PERSONAL INJURY” AND EXCLUDE CERTAIN EVENTS
30   FROM “ACCIDENT”; TO ADD SECTION 42-1-172,
31   RELATING TO A REPETITIVE TRAUMA INJURY, SO AS TO
32   ESTABLISH WHEN A REPETITIVE TRAUMA INJURY MAY
33   BE COMPENSABLE; TO AMEND SECTION 42-1-375 SO AS
34   TO EXEMPT AN OWNER-OPERATOR OF A VEHICLE
35   LEASED TO A MOTOR CARRIER WHO HAS SIGNED AN
36   INDEPENDENT CONTRACTOR AGREEMENT WITH A
37   MOTOR CARRIER; TO AMEND SECTION 42-9-30 SO AS TO
38   LIMIT THE DISABILITY AWARD TO TEN PERCENT
39   GREATER THAN THE MEDICAL IMPAIRMENT RATING
40   UNLESS THE COMMISSIONER FINDS EXTRAORDINARY
41   CIRCUMSTANCES AND LISTS FACTORS TO BE
42   CONSIDERED FOR EXTRAORDINARY CIRCUMSTANCES

     [332]                  1
 1   AND TO PRESUME FIFTY PERCENT OR MORE LOSS OF
 2   USE OF THE BACK IS TOTAL AND PERMANENT
 3   DISABILITY; TO AMEND SECTION 42-11-10, RELATING TO
 4   OCCUPATIONAL DISEASE, SO AS TO ESTABLISH
 5   EMPLOYEE’S BURDEN OF PROOF, EXCLUDE CERTAIN
 6   TYPES OF CONDITIONS, AND PROVIDE THAT
 7   COMPENSATION IS NOT PAYABLE UNLESS CLAIMANT
 8   SUFFERS PERMANENT OR PARTIAL DISABILITY; TO
 9   AMEND SECTION 42-15-20, RELATING TO NOTICE FOR A
10   REPETITIVE TRAUMA INJURY, SO AS TO REQUIRE
11   NOTICE BE GIVEN NO LATER THAN NINETY DAYS
12   AFTER EMPLOYEE COULD HAVE DISCOVERED THAT
13   THE CONDITION IS COMPENSABLE; TO AMEND SECTION
14   42-15-40 SO AS TO BAR THE RIGHT TO COMPENSATION
15   FOR A REPETITIVE TRAUMA INJURY UNLESS THE CLAIM
16   IS FILED WITHIN TWO YEARS AFTER THE DEATH,
17   DISABILITY, OR LAST DATE OF EMPLOYMENT; TO
18   AMEND SECTION 42-15-60, RELATING TO EMPLOYER
19   RESPONSIBILITY, SO AS TO ESTABLISH THAT AFTER
20   TEN WEEKS AFTER DATE OF EMPLOYEE’S INJURY,
21   EMPLOYEE MUST ESTABLISH BY MEDICAL RECORDS OR
22   EXPERT MEDICAL TESTIMONY THAT ADDITIONAL TIME
23   IS NEEDED TO LESSEN THE EMPLOYEE’S DEGREE OF
24   IMPAIRMENT AND TO CLARIFY THAT AN EMPLOYER’S
25   DUTY TO EMPLOYEE TERMINATES WHEN THERE IS NO
26   FURTHER MEDICAL CARE THAT WOULD LESSEN THE
27   DEGREE OF MEDICAL IMPAIRMENT AND IN NO CASE
28   WOULD MEDICAL BENEFITS EXTEND FOR MORE THAN
29   FIVE HUNDRED WEEKS AFTER THE DATE OF INJURY,
30   EXCEPT      IN   CASES   INVOLVING     PARAPLEGIA,
31   QUADRIPLEGIA AND PHYSICAL BRAIN DAMAGE; TO
32   AMEND SECTION 42-15-95, RELATING TO THE RELEASE
33   OF     MEDICAL      INFORMATION    IN    WORKERS’
34   COMPENSATION CLAIMS, SO AS TO PROVIDE THAT AN
35   EMPLOYEE SEEKING TREATMENT IS CONSIDERED TO
36   HAVE GIVEN CONSENT FOR RELEASE OF MEDICAL
37   RECORDS AND TO PROVIDE COMMUNICATION OPTIONS
38   AMONG INTERESTED PARTIES; TO AMEND SECTION
39   42-17-90 SO AS TO ESTABLISH A ONE-YEAR PERIOD FOR
40   CHANGE OF CONDITION IN CASES INVOLVING
41   REPETITIVE TRAUMA OR OCCUPATIONAL DISEASE; TO
42   AMEND SECTION 38-73-495 SO AS TO ACCOUNT FOR
43   THIRD-PARTY REIMBURSEMENTS IN EXPERIENCE

     [332]                   2
 1   MODIFICATION; TO AMEND SECTION 42-7-310 SO AS TO
 2   REDUCE THE SECOND INJURY FUND ASSESSMENT
 3   FORMULA TO ONE HUNDRED AND THIRTY-FIVE
 4   PERCENT AND TO REQUIRE THE SECOND INJURY FUND
 5   DIRECTOR TO ANNUALLY SUBMIT INFORMATION TO
 6   THE     NATIONAL    COUNCIL  ON   COMPENSATION
 7   INSURANCE; TO AMEND SECTION 42-9-400, RELATING
 8   TO THE SECOND INJURY FUND, SO AS TO ELIMINATE
 9   “COMBINED EFFECTS OF PREEXISTING IMPAIRMENT
10   AND SUBSEQUENT INJURY”, TO FURTHER INCREASE
11   THE NUMBER OF WEEKS TO ONE HUNDRED AND FOUR,
12   TO INCREASE THE THRESHOLD FOR REIMBURSEMENT
13   FOR MEDICAL PAYMENT FROM THREE THOUSAND
14   DOLLARS TO TEN THOUSAND DOLLARS, TO ELIMINATE
15   “ARTHRITIS” AND “ANY OTHER PRE-EXISTING DISEASE,
16   CONDITION OR IMPAIRMENT” FROM THE LIST OF
17   PRESUMPTIONS FOR PERMANENT IMPAIRMENT, AND TO
18   PROVIDE NOTICE PROVISIONS; TO AMEND SECTION
19   42-9-410 SO AS TO INCREASE THE NUMBER OF WEEKS
20   TO ONE HUNDRED AND FOUR FOR SECOND INJURY
21   FUND REIMBURSEMENT ELIGIBILITY; AND TO AMEND
22   CHAPTER 73, TITLE 38.
23
24   Be it enacted by the General Assembly of the State of South
25   Carolina:
26
27                                PART I
28
29                    Workers’ Compensation Reform
30
31   SECTION 1. Section 38-55-530(D) of the 1976 Code is amended
32   to read:
33
34      “(D) ‘False statement and misrepresentation’ means a statement
35   or representation made by a person or an insurer that is false,
36   material, made with the person’s knowledge of the falsity of the
37   statement, and made with the intent of obtaining or causing another
38   to obtain or attempting to obtain or causing another to obtain an
39   undeserved economic advantage or benefit or made with the intent
40   to deny or cause another to deny any benefit or payment in
41   connection with an insurance transaction and such shall constitute
42   fraud.    ‘False statement and misrepresentation’ specifically
43   includes, but is not limited to, an intentional:

     [332]                            3
 1        (1) false report of business activities;
 2        (2) miscount or misclassification by an employer of its
 3   employees; or
 4        (3) false claim made by an employee that is made to obtain
 5   an economic benefit.
 6   An economic benefit includes, but is not limited to, a favorable
 7   insurance premium, payment schedule, or insurance award.”
 8
 9   SECTION 2. Section 38-55-540 of the 1976 Code is amended to
10   read:
11
12      “Section 38-55-540. (A) Any A person or an insurer who
13   makes a false statement or misrepresentation, and any other person
14   knowingly, with an intent to injure, defraud, or deceive, or who
15   assists, abets, solicits, or conspires with such a person or an insurer
16   to make a false statement or misrepresentation, is guilty of a:
17        (1) misdemeanor, for a first offense violation, if the amount
18   of the economic advantage or benefit received is less than one
19   thousand dollars. Upon conviction, the person must be punished
20   by a fine fined not to exceed less than one hundred nor more than
21   five hundred dollars or by imprisonment imprisoned not to exceed
22   more than thirty days;
23        (2) misdemeanor, for a first offense violation, if the amount
24   of the economic advantage or benefit received is one thousand
25   dollars or more but less than ten thousand dollars. Upon
26   conviction, the person must be punished by a fine fined not to
27   exceed less than two thousand nor more than fifty ten thousand
28   dollars or by imprisonment for a term imprisoned not to exceed
29   more than three years, or by both, such fine and imprisonment and
30   must pay the amount of restitution and tax owed;
31        (3) felony, for a first offense violation, if the amount of the
32   economic advantage or benefit received is ten thousand dollars or
33   more but less than fifty thousand dollars. Upon conviction, the
34   person must be fined not less than ten thousand nor more than fifty
35   thousand dollars or imprisoned not more than five years, or both,
36   and must pay the amount of restitution and tax owed;
37      (4) felony, for a first offense violation, if the amount of the
38   economic advantage or benefit received is fifty thousand dollars or
39   more. Upon conviction, the person must be fined not less than
40   twenty thousand nor more than one hundred thousand dollars or
41   imprisoned not more than ten years, or both, and must pay the
42   amount of restitution and tax owed;


     [332]                              4
 1      (3)(5) felony, for a second or subsequent violation, regardless
 2   of the amount of the economic advantage or benefit received.
 3   Upon conviction, the person must be punished by a fine fined not
 4   to exceed less than ten thousand nor more than fifty thousand
 5   dollars or by imprisonment for a term imprisoned not to exceed
 6   more than ten years, or by both, such fine and imprisonment and
 7   must pay the amount of restitution and tax owed.
 8      (B) Any A person or an insurer convicted under pursuant to the
 9   provisions of this section must be ordered to make full restitution
10   to the a victim or victims for any economic advantage or benefit
11   which has been obtained by the person or insurer as a result of that
12   violation.”
13
14   SECTION 3. Section 38-55-560 of the 1976 Code is amended by
15   adding the following lettered subsection at the end to read:
16
17     “(E) The Attorney General is authorized to hire, employ, and
18   reasonably equip one forensic accountant, and this forensic
19   accountant must be assigned to the Insurance Fraud Division of the
20   Attorney General’s Office. A person is not qualified to be hired
21   and the Insurance Fraud Division may not hire a forensic
22   accountant unless he possesses and maintains a current license to
23   engage in the practice of accounting pursuant to the provisions of
24   Chapter 2, Title 40.”
25
26   SECTION 4. Section 42-1-160 of the 1976 Code is amended to
27   read:
28
29      Section 42-1-160. (A) ‘Injury’ and ‘personal injury’ shall
30   mean means only injury by accident arising out of and in the
31   course of the employment and shall not include a disease in any
32   form, except when it results naturally and unavoidably from the
33   accident and except such diseases as are compensable under the
34   provisions of Chapter 11 of this title. An employee must establish
35   that the injury arose out of his employment with medical evidence
36   stated to a reasonable degree of medical certainty. In construing
37   this section, an accident arising out of and in the course of
38   employment shall include includes employment of an employee of
39   a municipality outside the corporate limits of the municipality
40   when the employment was ordered by a duly authorized employee
41   of the municipality.
42      (B) Stress, mental injuries, heart attacks, strokes, embolisms, or
43   aneurisms arising out of and in the course of employment

     [332]                             5
 1   unaccompanied by other physical injury and resulting in mental
 2   illness or injury is not considered a personal injury unless it is
 3   established to a reasonable degree of medical certainty that the
 4   stressful employment conditions causing the mental injury stress,
 5   mental injury, heart attack, stroke, embolism, or aneurism were
 6   extraordinary and unusual in comparison to the normal conditions
 7   of the particular employment.
 8      (C) Stress, mental injuries, heart attacks, strokes, embolisms, or
 9   aneurisms arising out of and in the course of employment
10   unaccompanied by physical injury is are not considered
11   compensable if it results from any event or series of events which
12   is incidental to normal employer/employee relations including, but
13   not limited to, personnel actions by the employer such as
14   disciplinary actions, work evaluations, transfers, promotions,
15   demotions, salary reviews, or terminations, except when these
16   actions are taken in an extraordinary and unusual manner.
17      (D) In medically complex cases outside the common
18   knowledge or common purview of the commission or any member
19   thereof, an employee must establish by expert medical testimony
20   within a reasonable degree of medical certainty that the injury
21   arose out of and in the course of employment. For purposes of this
22   subsection, ‘medically complex cases’ mean sophisticated cases
23   requiring surgical intervention or other highly scientific techniques
24   for diagnosis or treatment.
25      (E) The word ‘accident’ as used in this title must not be
26   construed to mean a series of events in employment, of a similar or
27   like nature, occurring regularly, continuously, or at frequent
28   intervals in the course of such employment, over extended periods
29   of time. Any injury or disease attributable to such causes must be
30   compensable only if culminating in a compensable repetitive
31   trauma injury pursuant to Section 42-1-172 or an occupational
32   disease pursuant to the provisions of Chapter 11 of this title.”
33
34   SECTION 5. The 1976 Code is amended by adding:
35
36      “Section 42-1-172. (A) ‘Repetitive trauma injury’ means an
37   injury which is gradual in onset and caused by the cumulative
38   effects of repetitive traumatic events. Compensability of such
39   repetitive trauma injuries shall only be determined under the
40   provisions of this statute.
41      (B) A ‘repetitive trauma injury’ shall only be compensable
42   when it:
43        (1) arises out of and in the course of employment;

     [332]                             6
 1         (2) results directly and naturally from exposure in this State
 2   to hazards peculiar to the particular trade, process, occupation, or
 3   employment in excess of those ordinarily incident to employment;
 4   and
 5         (3) is peculiar to the occupation in which the employee is
 6   engaged.
 7      (C) A ‘repetitive trauma injury’ shall be deemed to arise out of
 8   employment only if it is reasonably apparent upon consideration of
 9   all the circumstances that:
10         (1) there is a direct causal relationship between the condition
11   under which the work is performed and the injury. Such causal
12   relationship must be supported by expert testimony and proven to a
13   reasonable degree of medical certainty; and
14         (2) the injury is not an ordinary condition of life to which the
15   general public is equally exposed. No injury shall be deemed a
16   compensable repetitive trauma injury when it is a:
17           (a) condition of the neck, back, or spinal column; or
18           (b) chronic disease of the skeletal joints.
19      (D) Upon reaching maximum medical improvement, if the
20   employee returns to work with the employer in whose employ such
21   repetitive trauma injury was suffered, the employee shall only be
22   entitled to benefits under Section 42-9-20 but not under Section
23   42-9-30. Upon reaching maximum medical improvement, if the
24   employee does not return to work with the employer in whose
25   employ such repetitive trauma injury was suffered, the employee
26   shall be entitled to benefits under either Section 42-9-20 or Section
27   42-9-30, but not both. Medical benefits for compensable repetitive
28   trauma injuries shall be as provided elsewhere in this title.”
29
30   SECTION 6. Section 42-1-375 of the 1976 Code is amended to
31   read:
32
33      “Section 42-1-375. This title does not apply to:
34      (1) a licensed real estate sales persons person engaged in the
35   sale, leasing, or rental of real estate for a licensed real estate broker
36   on a straight commission basis over whom the broker has no
37   control and who has signed an independent contractor agreement
38   with the broker; or
39      (2) an owner-operator of a vehicle leased to a motor carrier
40   who has signed an independent contractor agreement with a motor
41   carrier.”
42


     [332]                               7
 1   SECTION 7. Section 42-9-30 of the 1976 Code is amended to
 2   read:
 3
 4      “Section 42-9-30. (A) In cases included in the following
 5   schedule, the disability in each case shall be deemed to continue
 6   for the period specified and the compensation so paid for such
 7   injury shall be as specified therein, to wit as follows:
 8        (1) for the loss of a thumb, sixty-six and two-thirds percent
 9   of the average weekly wages during sixty-five weeks;
10        (2) for the loss of a first finger, commonly called the index
11   finger, sixty-six and two-thirds percent of the average weekly
12   wages during forty weeks;
13        (3) for the loss of a second finger, sixty-six and two-thirds
14   percent of the average weekly wages during thirty-five weeks;
15        (4) for the loss of a third finger, sixty-six and two-thirds
16   percent of the average weekly wages during twenty-five weeks;
17        (5) for the loss of a fourth finger, commonly called the little
18   finger, sixty-six and two-thirds percent of the average weekly
19   wages during twenty weeks;
20        (6) the loss of the first phalange of the thumb or any finger
21   shall be considered to be equal to the loss of one half of such
22   thumb or finger and the compensation shall be for one half of the
23   periods of time above specified;
24        (7) the loss of more than one phalange shall be considered
25   the loss of the entire finger or thumb; provided, however, that in
26   no case shall the amount received for more than one finger exceed
27   the amount provided in this schedule for the loss of a hand;
28        (8) for the loss of a great toe, sixty-six and two-thirds
29   percent of the average weekly wages during thirty-five weeks;
30        (9) for the loss of one of the toes other than a great toe,
31   sixty-six and two-thirds percent of the average weekly wages
32   during ten weeks;
33        (10) the loss of the first phalange of any toe shall be
34   considered to be equal to the loss of one half of such toe and the
35   compensation shall be for one half the periods of time above
36   specified;
37        (11) the loss of more than one phalange shall be considered as
38   the loss of the entire toe;
39        (12) for the loss of a hand, sixty-six and two-thirds percent of
40   the average weekly wages during one hundred and eighty-five
41   weeks;
42        (13) for the loss of an arm, sixty-six and two-thirds percent of
43   the average weekly wages during two hundred twenty weeks;

     [332]                             8
 1         (14) for the loss of a foot, sixty-six and two-thirds percent of
 2   the average weekly wages during one hundred forty weeks;
 3         (15) for the loss of a leg, sixty-six and two-thirds percent of
 4   the average weekly wages during one hundred ninety-five weeks;
 5         (16) for the loss of an eye, sixty-six and two-thirds percent of
 6   the average weekly wages during one hundred forty weeks;
 7         (17) for the complete loss of hearing in one ear, sixty-six and
 8   two-thirds percent of the average weekly wages during eighty
 9   weeks; and for the complete loss of hearing in both ears, sixty-six
10   and two-thirds percent of the average weekly wages during one
11   hundred sixty-five weeks, and the commission shall by regulation
12   provide for the determination of proportional benefits for total or
13   partial loss of hearing based on accepted national medical
14   standards.
15         (18) total loss of use of a member or loss of vision of an eye
16   shall be considered as equivalent to the loss of such member or
17   eye. The compensation for partial loss of or for partial loss of use
18   of a member or for partial loss of vision of an eye shall be such
19   proportion of the payments herein provided for total loss as such
20   partial loss bears to total loss.;
21         (19) for the total loss of use of the back, sixty-six and
22   two-thirds percent of the average weekly wages during three
23   hundred weeks. The compensation for partial loss of use of the
24   back shall be such proportions of the periods of payment herein
25   provided for total loss as such partial loss bears to total loss, except
26   that in cases where there is fifty percent or more loss of use of the
27   back, in which event the injured employee shall be deemed
28   presumed to have suffered total and permanent disability and
29   compensated therefor under paragraph two of Section 42-9-10.;
30         (20) for the total or partial loss of, or loss of use of, a
31   member, organ or part of the body not covered herein and not
32   covered under Sections 42-9-10 or 42-9-20, sixty-six and two
33   thirds of the average weekly wages not to exceed five hundred
34   weeks. The commission shall may by regulations prescribe the
35   ratio which the partial loss or loss or partial loss of use of a
36   particular member, organ or body part bears to the whole man,
37   basing such ratios on accepted medical standards the medical
38   impairment rating pursuant to the American Medical Association’s
39   ‘Guide to the Evaluation of Permanent Impairment’ or other
40   accepted medical treatise or authority and such ratios shall
41   determine the benefits payable under this subsection, subject to the
42   limitations in subsection (B) of this section.;


     [332]                              9
 1         (21) proper and equitable benefits shall be paid for serious
 2   permanent disfigurement of the face, head, neck or other area
 3   normally exposed in employment, not to exceed fifty weeks.
 4   Where benefits are paid or payable for injury to or loss of a
 5   particular member or organ under other provisions of this title no
 6   additional benefits shall be paid under this paragraph, except that
 7   disfigurement shall also include compensation for serious burn
 8   scars or keloid scars on the body resulting from injuries, in
 9   addition to any other compensation.
10      The weekly compensation payments referred to in this section
11   shall all be subject to the same limitations as to maximum and
12   minimum as set out in Section 42-9-10.
13      (B) A determination of disability must be based, in part, upon
14   the medical impairment rating pursuant to the American Medical
15   Association’s ‘Guide to the Evaluation of Permanent Impairment’
16   or other accepted medical treatise or authority. The disability
17   award cannot be in excess of ten percent greater than the
18   impairment rating except in extraordinary circumstances. To
19   determine the existence of extraordinary circumstances, the
20   commissioner must consider the employee’s:
21         (1) age;
22         (2) education;
23         (3) work history;
24         (4) employment skills;
25         (5) job training;
26         (6) physical capacity; and
27         (7) vocational evaluation. If an employee does not receive a
28   vocational evaluation pursuant to Section 42-3-80 or is dissatisfied
29   with the evaluation received, he may at his expense, receive an
30   independent evaluation.          If a finding of extraordinary
31   circumstances is established, the commission may order the
32   employer to reimburse the employee for the evaluation cost.
33      If a commissioner determines that extraordinary circumstances
34   exist, the commissioner must make specific written findings
35   regarding each factor to justify the increased award.”
36
37   SECTION 8. Section 42-11-10 of the 1976 Code is amended to
38   read:
39
40     “Section 42-11-10. (A) The words ‘occupational disease’ mean
41   a disease arising out of and in the course of employment which is
42   due to hazards in excess of those ordinarily incident to
43   employment and is peculiar to the occupation in which the

     [332]                            10
 1   employee is engaged. A disease shall be deemed an occupational
 2   disease only if caused by a hazard recognized as peculiar to a
 3   particular trade, process, occupation, or employment as a direct
 4   result of continuous exposure to the normal working conditions
 5   thereof.
 6       (B) An employee must establish that the occupational disease
 7   arose directly and naturally from exposure in this State to hazards
 8   peculiar to the particular employment with a reasonable degree of
 9   medical certainty.
10       (C) No disease shall be deemed an occupational disease when
11   it:
12         (1) It does not result directly and naturally from exposure in
13   this State to the hazards peculiar to the particular employment;
14         (2) It results from exposure to outside climatic conditions;
15         (3) It is a contagious disease resulting from exposure to
16   fellow employees or from a hazard to which the workman would
17   have been equally exposed outside of his employment;
18         (4) It is one of the ordinary diseases of life to which the
19   general public is equally exposed, unless such disease follows as a
20   complication and a natural incident of an occupational disease or
21   unless there is a constant exposure peculiar to the occupation itself
22   which makes such disease a hazard inherent in such occupation;
23         (5) It is any disease of the cardiac, pulmonary, or circulatory
24   system not resulting directly from abnormal external gaseous
25   pressure exerted upon the body or the natural entrance into the
26   body through the skin or natural orifices thereof of foreign organic
27   or inorganic matter under circumstances peculiar to the
28   employment and the processes utilized therein; or
29         (6) It is any chronic disease of the skeletal joints, including,
30   but not limited to, arthritis, degenerative disc disease, facet
31   arthropathy, stenosis, spondylitis, spondylolisthesis, bursitis,
32   tendonitis, epicondylitis, or tenosynovitis; or
33         (7) is any condition of the neck, back, or spinal column.
34       (D) No compensation shall be payable for any occupational
35   disease unless the employee suffers disability as described in
36   Section 42-9-10 or Section 42-9-20. Disability resulting from an
37   occupational disease shall not be compensable under Section
38   42-9-30.”
39
40   SECTION 9. Section 42-15-20 of the 1976 Code is amended to
41   read:
42


     [332]                             11
 1      “Section 42-15-20. Every injured employee or his representative
 2   shall immediately on the occurrence of an accident, or as soon
 3   thereafter as practicable, give or cause to be given to the employer
 4   a notice of the accident and the employee shall not be entitled to
 5   physician’s fees nor to any compensation which may have accrued
 6   under the terms of this title prior to the giving of such notice,
 7   unless it can be shown that the employer, his agent, or
 8   representative, had knowledge of the accident or that the party
 9   required to give such notice had been prevented from doing so by
10   reason of physical or mental incapacity or the fraud of deceit of
11   some third person. No compensation shall be payable unless such
12   notice is given within ninety days after the occurrence of the
13   accident or death, unless reasonable excuse is made to the
14   satisfaction of the commission for not giving such notice and the
15   commission is satisfied that the employer has not been prejudiced
16   thereby. Neither compensation nor medical benefits shall be
17   payable to or on behalf of an employee suffering a compensable
18   ‘repetitive trauma injury’ unless notice shall be given by such
19   employee within ninety days of the date the employee could
20   discover, by exercising reasonable diligence, that the condition is
21   compensable. It shall not be a requirement that the employee
22   become disabled, either totally or in part, before the notice period
23   begins to run.”
24
25   SECTION 10. Section 42-15-40 of the 1976 Code is amended to
26   read:
27
28      “Section 42-15-40. The right to compensation under this title is
29   barred unless a claim is filed with the commission within two years
30   after an accident, or if death resulted from the accident, within two
31   years of the date of death. However, for occupational disease
32   claims the two-year period does not begin to run until the
33   employee concerned has been diagnosed definitively as having an
34   occupational disease and has been notified of the diagnosis. For
35   the death or injury of a member of the South Carolina National
36   Guard, as provided for in Section 42-7-67, whichever is later. The
37   filing required by this section may be made by registered mail, and
38   the registry within the time periods set forth in this section
39   constitutes timely filing. For a ‘repetitive trauma injury’ as
40   defined in Section 42-1-172, the right to compensation is barred
41   unless a claim is filed with the commission within two years after
42   the death or disability resulting from such a ‘repetitive trauma
43   injury’. Claims based on repetitive trauma injuries are forever

     [332]                            12
 1   barred if not brought within two years of the employee’s last date
 2   of employment. This prohibition applies regardless of whether the
 3   employee was aware that his repetitive trauma injury was the result
 4   of his employment.”
 5
 6   SECTION 11. Section 42-15-60 of the 1976 Code is amended to
 7   read:
 8
 9      “Section 42-15-60. (A) Medical The employer must provide
10   medical, surgical, hospital and other treatment, including medical
11   and surgical supplies as may reasonably be required, for a period
12   not exceeding ten weeks from the date of an injury, to effect a cure
13   or give relief, and for such additional time as that in the judgment
14   of the commission, as established by the employee’s medical
15   records, or, in medically complex cases, as established by expert
16   medical testimony within a reasonable degree of medical certainty,
17   will tend to lessen the period of disability degree of permanent
18   impairment and, in addition thereto, such original artificial
19   members as may be reasonably necessary at the end of the healing
20   period shall be provided by the employer. In case of a controversy
21   arising between employer and employee, the commission may
22   order such further medical, surgical, hospital or other treatment as
23   may in the discretion of the commission be necessary. During the
24   whole or any part of the remainder of disability resulting from the
25   injury the employer may, at his own option, continue to furnish or
26   cause to be furnished, free of charge to the employee, and the
27   employee shall accept an attending physician and any medical care
28   or treatment that may be deemed necessary by such attending
29   physician, unless otherwise ordered by the commission for good
30   cause shown and, in addition, such surgical and hospital service
31   and supplies as may be deemed necessary by such attending
32   physician or the Commission.
33      (B) The refusal of an employee to accept any medical, hospital,
34   surgical or other treatment or evaluation, when provided by the
35   employer or ordered by the commission, shall bar such employee
36   from further compensation until such refusal ceases and no
37   compensation shall at any time be paid for the period of suspension
38   refusal unless in the opinion of the commission the circumstances
39   justified the refusal, in which case the commission may order a
40   change in the medical or hospital service. If in an emergency on
41   account of the employer’s failure to provide the medical care as
42   specified in this section a physician other than provided by the
43   employer is called to treat the injured employee, the reasonable

     [332]                            13
 1   cost of such service shall be paid by the employer, if so ordered by
 2   the commission.
 3      (C) The employer’s obligation to provide medical care or
 4   treatment, including medication, shall end upon a finding by the
 5   commission that there is no further medical care or treatment that
 6   would tend to lessen the degree of permanent medical impairment.
 7   However, in no case shall an award of medical benefits extend for
 8   more than five hundred weeks after the date of the injury, except in
 9   cases of paraplegia, quadriplegia and physical brain damage. In
10   cases in which total and permanent disability results of paraplegia,
11   quadriplegia or physical brain damage, reasonable and necessary
12   nursing services, medicines, prosthetic devices, sick travel,
13   medical, hospital and other treatment or care causally related to the
14   paraplegia, quadriplegia and physical brain damage, shall be paid
15   during the life of the injured employee, without regard to any
16   limitation in this title including the maximum compensation limit.
17   In addition, in cases of partial permanent disability, prosthetic
18   devices shall be also furnished during the life of the injured
19   employee or so long as they are necessary.”
20
21   SECTION 12. Section 42-15-95 of the 1976 Code is amended to
22   read:
23
24      “Section 42-15-95. (A) Any employee who seeks treatment for
25   any injury, disease, or condition for which compensation is sought
26   under the provisions of this title shall be considered to have given
27   his consent for the release of medical records relating to such
28   examination or treatment under any applicable law or regulation.
29   All existing information compiled by a health care facility, as
30   defined in Section 44-7-130, or a health care provider licensed
31   pursuant to        Title 40 pertaining directly to a workers’
32   compensation claim must be provided to the insurance carrier, the
33   employer, the employee, their respective attorneys or certified
34   rehabilitation professionals, or the South Carolina Workers’
35   Compensation Commission, within fourteen days after receipt of
36   written request. A health care facility and a health care provider
37   may charge a fee for the search and duplication of a medical
38   record, but the fee may not exceed sixty-five cents per page for the
39   first thirty pages and fifty cents per page for all other pages, and a
40   clerical fee for searching and handling not to exceed fifteen dollars
41   per request plus actual postage and applicable sales tax. The
42   facility or provider may charge a patient or the patient’s
43   representative no more than the actual cost of reproduction of an

     [332]                             14
 1   X-ray. Actual cost means the cost of materials and supplies used
 2   to duplicate the X-ray and the labor and overhead costs associated
 3   with the duplication. If a treatment facility, or physician, surgeon,
 4   or other health care provider fails to send the requested
 5   information within forty-five thirty days after receipt of the
 6   request, the person or entity making the request may apply to the
 7   commission for an appropriate penalty payable to the commission,
 8   not to exceed two hundred dollars.
 9      (B) The insurance carrier, employer, employee, their respective
10   attorneys, certified rehabilitation professionals, or the commission
11   may submit a written request to the physician, surgeon, or other
12   health care provider who provides examination or treatment for
13   any injury, disease, or condition for which compensation is sought
14   under the provisions of this title for a written response to the
15   following questions, or completion of a form promulgated by the
16   commission, within fourteen days after the written request:
17        (1) What is the employee’s injury, disease, or condition for
18   which treatment is being rendered?
19        (2) What is the diagnosis of the employee’s injury, disease,
20   or condition?
21        (3) Did the employee’s employment cause, aggravate,
22   accelerate, exacerbate, or contribute to the injury, disease, or
23   condition for which treatment is being rendered?
24        (4) What treatment has been rendered?
25        (5) Did the employee have any pre-existing injury, disease,
26   or condition that was aggravated, accelerated, or exacerbated by
27   the employee’s employment?
28        (6) What treatment do you recommend?
29        (7) What is the employee’s temporary work status and/or
30   work restrictions?
31        (8) If at maximum medical improvement, the date maximum
32   medical improvement achieved and what degree permanent
33   impairment sustained?
34        (9) If at maximum medical improvement, what medical
35   treatment is necessary to provide relief, maintain work status, or
36   level of function?
37        (10) If at maximum medical improvement, what is the
38   employee’s permanent work status, employment disability, or
39   permanent work restrictions?
40      The employee must be provided with a copy of the written
41   questions and the response by the physician, surgeon, or other
42   health care provider. If the employee is represented, he is
43   responsible for providing a copy to his attorney. A reasonable fee

     [332]                            15
 1   for answering the questions may be charged, in accordance with
 2   the established practice of the physician, surgeon, or other health
 3   care provider, to be paid by the party requesting the responses.
 4       (C) A physician, surgeon, or other health care provider who
 5   provides examination or treatment for any injury, disease, or
 6   condition for which compensation is sought under the provision of
 7   this title may discuss or communicate an employee’s medical
 8   history, diagnosis, causation, course of treatment, prognosis, work
 9   restrictions, and impairments with the insurance carrier, employer,
10   their respective attorneys or certified rehabilitation professionals,
11   or the commission without the employee’s consent. The employee
12   must be:
13         (1) notified in a timely fashion, in writing or orally, of the
14   discussion or communication. This notification may occur prior to
15   the actual discussion or communication if the physician, surgeon,
16   or other health care provider knows the discussion or
17   communication will occur in the near future;
18         (2) advised of the nature of the discussion or
19   communication; and
20         (3) provided access to any medical documents or other
21   information to be shown or disclosed to or by the physician,
22   surgeon, other health care provider during the discussion or
23   communication.
24       Any discussion or communication must not conflict with or
25   interfere with the employee’s examination or treatment.
26       A reasonable fee for any discussion or communication may be
27   charged in accordance with the established practice of the
28   physician, surgeon, or other health care provider, to be paid by the
29   party requesting the discussion or communication.
30       Any discussions, communications, medical reports, or opinions
31   obtained in accordance with this section will not constitute a
32   breach of the physician’s duty of confidentiality.
33       (D) Any discussions, communications, medical reports, or
34   opinions obtained in bad faith and in violation of this section must
35   be excluded from any proceedings under the provisions of this
36   title.”
37
38   SECTION 13. Section 42-17-90 of the 1976 Code is amended to
39   read:
40
41     “Section 42-17-90. (A) Upon its own motion or upon the
42   application of any party in interest on the ground of a change in
43   condition, the commission may review any award and on such

     [332]                            16
 1   review may make an award ending, diminishing, or increasing the
 2   compensation previously awarded, subject to the maximum or
 3   minimum provided in this title, and shall immediately send to the
 4   parties a copy of the order changing the award. No such review
 5   shall affect such award as regards any moneys paid and no such
 6   review shall be made after twelve months one year from the date
 7   of the last payment of compensation pursuant to an award under
 8   this title.
 9      (B) A motion or application for change in condition involving a
10   repetitive trauma injury must be made within one year from the
11   date of the last compensation payment for the repetitive trauma
12   injury. Any filing not made within this one-year period shall be
13   deemed untimely and shall not be reviewed.
14      (C) A motion or application for change in condition involving
15   an occupational disease must be made within one year from the
16   date of the last compensation payment for the occupational
17   disease. Any filing not made within this one-year period shall be
18   deemed untimely and shall not be reviewed.”
19
20                                PART II
21
22                          Second Injury Fund
23
24   SECTION 1. Section 38-73-495 of the 1976 Code is amended to
25   read:
26
27      “Section 38-73-495. The director or his designee may:
28      (1) disapprove a previously approved rate for any classification
29   for workers’ compensation insurance upon a finding that the rate
30   for that classification is excessive, inadequate, or unfairly
31   discriminatory;
32      (2) require the division of a particular classification into
33   separate classifications, or the joining of separate classifications
34   into one classification, upon a finding that such action is in the
35   public interest;
36      (3) direct that a particular risk be classified in a particular
37   classification upon a finding that a risk is classified incorrectly;
38      (4) disapprove an experience modification rate for workers’
39   compensation insurance upon a finding that the rate is excessive,
40   inadequate, or unfairly discriminatory.             This includes an
41   experience modification rate that fails to account for third party
42   reimbursements, including the Second Injury Fund.


     [332]                            17
 1     Appeals to the department must be filed within one year of
 2   policy expiration date or cancellation date, whichever comes first.”
 3
 4   SECTION 2. Section 42-7-310(d)(2) of the 1976 Code is
 5   amended to read:
 6
 7      “(2) equitable assessments upon each carrier which, as used in
 8   this section, includes all insurance carriers, self-insurers, and the
 9   State Accident Fund. Each carrier shall make payments to the
10   fund in an amount equal to that proportion of one hundred
11   seventy-five percent one hundred thirty-five percent of the total
12   disbursement made from the fund during the preceding fiscal year
13   less the amount of net assets in the fund as of June thirtieth of the
14   preceding fiscal year which the normalized premium of each
15   carrier bore to the normalized premium of all carriers during the
16   preceding calendar year. Each insurance carrier, self-insurer, and
17   the State Accident Fund shall make payment based upon workers
18   ‘compensation normalized premiums during the preceding
19   calendar year. The charge to each insurance carrier is a charge
20   based upon normalized premiums. An employer who has ceased to
21   be a self-insurer shall continue to be liable for any assessments into
22   the fund on account of any benefits paid by him during such
23   calendar year. Any assessment levied or established in accordance
24   with this section constitutes a personal debt of every employer or
25   insurance carrier so assessed and is due and payable to the Second
26   Injury Fund when payment is called for by the fund. In the event
27   of failure to pay any assessment upon the date determined by the
28   fund, the employer or insurance carrier may immediately be
29   assessed a penalty in an amount not exceeding ten percent of the
30   unpaid assessment. If the employer or insurance carrier fails to
31   pay the assessment and penalty, they shall be barred from any
32   recovery from the fund on all claims without exception until the
33   assessment and penalty are paid in full. The director may file a
34   complaint for collection against the employer or insurance carrier
35   in a court of competent jurisdiction for the assessment, penalty,
36   and interest at the legal rate, and the employer/carrier is
37   responsible for attorney’s fees and costs. The penalty and interest
38   under this subsection are payable to the Second Injury Fund. At the
39   time of the filing of the complaint, the fund shall also notify the
40   South Carolina Department of Insurance and the South Carolina
41   Workers’ Compensation Commission, and these government
42   agencies shall take the appropriate legal and administrative action
43   immediately.”

     [332]                             18
 1   SECTION 3. Section 42-7-310 of the 1976 Code is amended by
 2   adding the following new lettered subsection at the end to read:
 3
 4     “(f) The director must annually submit to the National Council
 5   on Compensation Insurance information regarding Second Injury
 6   Fund reimbursements and closed claims.”
 7
 8   SECTION 4. Section 42-9-400 of the 1976 Code is amended to
 9   read:
10
11      “Section 42-9-400. (a) If an employee who has a permanent
12   physical impairment from any cause or origin incurs a subsequent
13   disability from injury by accident arising out of and in the course
14   of his employment, resulting in compensation and medical
15   payments liability or either, for disability that is substantially
16   greater, by reason of the combined effects of the preexisting
17   impairment and subsequent injury or by reason of the caused by
18   aggravation of the preexisting impairment, than that which would
19   have resulted from the subsequent injury alone, the employer or his
20   insurance carrier shall in the first instance pay all awards of
21   compensation and medical benefits provided by this title; but such
22   employer or his insurance carrier shall be reimbursed from the
23   Second Injury Fund as created by Section 42-7-310 for
24   compensation and medical benefits in the following manner:
25        (1) reimbursement of all compensation benefit payments
26   payable subsequent to those payable for the first seventy-eight one
27   hundred and four weeks following the injury.;
28        (2) reimbursement of fifty percent of medical payments in
29   excess of three ten thousand dollars during the first seventy-eight
30   one hundred and four weeks following the injury and then
31   reimbursement of all medical benefit payments payable subsequent
32   to the first seventy-eight one hundred and four weeks following the
33   injury; provided, however, in order to obtain reimbursement for
34   medical expense during the first seventy-eight one hundred and
35   four weeks following the subsequent injury, an employer or carrier
36   must establish that his liability for medical payments is
37   substantially greater, by reason of the combined effects of the
38   preexisting impairment and subsequent injury or by reason of the
39   aggravation of the preexisting impairment, than that which would
40   have resulted from the subsequent injury alone.
41      (b) If the subsequent injury of such an employee shall result in
42   the death of the employee, and it shall be determined that the death
43   would not have occurred except for such preexisting permanent

     [332]                            19
 1   physical impairment, the employer or his insurance carrier shall in
 2   the first instance pay the compensation prescribed by this title; but
 3   he or his insurance carrier shall be reimbursed from the Second
 4   Injury Fund created by Section 42-7-310, for all compensation
 5   payable in excess of seventy-eight one hundred and four weeks.
 6      (c) In order to qualify under this section for reimbursement
 7   from the Second Injury Fund, the employer must establish when
 8   claim is made for reimbursement thereunder, that the employer had
 9   knowledge of the permanent physical impairment at the time that
10   the employee was hired, or at the time the employee was retained
11   in employment after the employer acquired such knowledge.
12   However, the employer may qualify for reimbursement hereunder
13   upon proof that he did not have prior knowledge of the employee’s
14   preexisting physical impairment because the existence of the
15   condition was concealed by the employee.
16      (d) As used in this section, ‘permanent physical impairment’
17   means any permanent condition, whether congenital or due to
18   injury or disease, of such seriousness as to constitute a hindrance
19   or obstacle to obtaining employment or to obtaining reemployment
20   if the employee should become unemployed.
21      When an employer establishes his prior knowledge of the
22   permanent impairment, then there shall be a presumption that the
23   condition is permanent and that a hindrance or obstacle to
24   employment or reemployment exists when the condition is one of
25   the following impairments:
26         (1) Epilepsy;
27         (2) Diabetes;
28         (3) Cardiac disease;
29         (4) Arthritis
30         (5)(4) Amputated foot, leg, arm or hand;
31         (6)(5) Loss of sight of one or both eyes or partial loss of
32   uncorrected vision of more than seventy-five percent bilateral;
33         (7)(6) Residual disability from Poliomyelitis;
34         (8)(7) Cerebral palsy;
35         (9)(8) Multiple sclerosis;
36         (10)(9) Parkinson’s disease;
37         (11)(10) Cerebral vascular accident;
38         (12)(11) Tuberculosis;
39         (13)(12) Silicosis;
40         (14)(13) Psychoneurotic disability following treatment in a
41   recognized medical or mental institution;
42         (15)(14) Hemophilia;
43         (16)(15) Chronic ostemyelitis;

     [332]                            20
 1         (17)(16) Ankylosis of joints;
 2         (18)(17) Hyperinsulinism;
 3         (19)(18) Muscular dystrophy;
 4         (20)(19) Arteriosclerosis;
 5         (21)(20) Thrombophlebitis;
 6         (22)(21) Varicose Veins;
 7         (23)(22) Heavy metal poisoning;
 8         (24)(23) Ionizing radiation injury;
 9         (25)(24) Compressed air sequelae;
10         (26)(25) Ruptured intervertebral disc;
11         (27)(26) Hodgkins disease;
12         (28)(27) Brain damage;
13         (29)(28) Deafness;
14         (30)(29) Cancer;
15         (31)(30) Sickle-cell anemia;
16         (32)(31) Pulmonary disease;
17         (33)(32) Mental retardation provided the employee’s
18   intelligence quotient is such that he falls within the lowest
19   percentile of the general population. However, it shall not be
20   necessary for the employer to know the employee’s actual
21   intelligence quotient or actual relative ranking in relation to the
22   intelligence quotient of the general population.
23         (34) Any other pre-existing disease, condition or impairment
24   which is permanent in nature and which:
25           (a) Would qualify for payment of weekly disability
26   benefits of seventy-eight weeks or more under Section 42-9-30
27   exclusive of benefits payable for disfigurement; or
28           (b) Would support a rating of seventy-eight or more
29   weeks of weekly disability benefits when evaluated according to
30   the standards applied to Workers’ Compensation claims in South
31   Carolina, or combines with a subsequent injury to cause a
32   permanent impairment rated at seventy-eight weeks or more under
33   Section 42-9-30.
34      (e) The Second Injury Fund shall not be bound as to any
35   question of law or fact by reason of any compensation agreement,
36   settlement, award, and adjudication to which it was not a party, or
37   in relation to which it was not notified at least twenty days prior to
38   a hearing on liability that it might be subject to liability for the
39   injury or death.
40      (f) An employer or his carrier shall must notify the Industrial
41   Commission Workers’ Compensation Commission and the
42   Director of the Second Injury Fund in writing of any possible
43   claim against the fund as soon as practicable but in no event later

     [332]                             21
 1   than after the payment of the first seventy-eight weeks of
 2   compensation one hundred and eighty days after the employer or
 3   his carrier receives notice of the claim. In addition, an employer or
 4   his carrier must perfect its claim with the Second Injury Fund
 5   within ninety days after the final determination of the underlying
 6   claim.
 7   Failure to comply with the provisions of this subsection shall bar
 8   an employer or his carrier from recovery from the fund.
 9      (g) If the employee has a permanent physical impairment, as
10   defined in this section and the prerequisites for reimbursement
11   have been met, and if it can be shown that the subsequent injury
12   most probably would not have occurred ‘but for’ the presence of
13   the prior impairment, then reimbursement will be granted as
14   provided in this section even if the combined effects or the
15   aggravation of the preexisting condition by the subsequent injury
16   does not cause the employer’s liability for compensation and
17   medical benefits to be substantially greater than that which would
18   have resulted from the subsequent injury alone.
19      (h) When a third party is deemed to be an employer for the
20   purposes of paying workers’ compensation benefits, that third
21   party will be entitled to reimbursement from the Second Injury
22   Fund if either he or the employer of record have met the
23   knowledge requirements outlined in this section, as well as all
24   other requirements.
25      (i) The Second Injury Fund is entitled to a credit for sums
26   recovered by the employer or his workers’ compensation carrier
27   from third parties, after the employer or his workers’ compensation
28   carrier have been reimbursed for the moneys paid out by them and
29   not reimbursed by the fund.
30      (j) The Second Injury Fund can enter into compromise
31   settlements at the discretion of the director with approval of a
32   majority of the Industrial Commission Workers’ Compensation
33   Commission, provided a bona fide dispute exists.
34      (k) Any employer operating in violation of Section 42-5-20 is
35   not eligible for reimbursement from the South Carolina Second
36   Injury Fund.
37      (l) As a prerequisite to reimbursement from the fund, the
38   insurer shall be required to certify that the medical and indemnity
39   reserves have been reduced to the threshold limits of
40   reimbursement. The insurer must also give the director a copy of
41   the insurer’s letter to National Council of Compensation Insurance
42   showing that the reserves have been reduced.”
43

     [332]                            22
 1   SECTION 5. Section 42-9-410 of the 1976 Code is amended to
 2   read:
 3
 4      “Section 42-9-410. (a) When an employee shall become
 5   becomes totally and permanently disabled under Section 42-9-10,
 6   because of the loss of a hand, arm, foot, leg, or the vision of an eye
 7   in a subsequent injury under Section 42-9-150 or 42-9-170, he may
 8   receive from the employer compensation and medical care
 9   provided by this title for total and permanent disability, and the
10   employer shall be reimbursed a portion of the cost thereof from the
11   Second Injury Fund as herein provided.
12      (b) If the loss of the member or eyesight is not caused or
13   contributed to by any of the conditions defined as ‘permanent
14   physical impairment’ in Section 42-9-400, the employer shall be
15   responsible to pay such compensation and provide such medical
16   care as is required by Sections 42-9-150 or 42-9-170 and 42-15-60,
17   and the employer shall thereafter be reimbursed by the Second
18   Injury Fund for the cost of such further compensation and medical
19   care as the injured employee shall receive under this chapter.
20      (c) If the loss of the member or eyesight is caused or
21   contributed to by any of the conditions defined in Section 42-9-400
22   as ‘permanent physical impairment,’ the employer shall pay the
23   compensation and medical expense for seventy-eight one hundred
24   and four weeks as required by subsection (a) of Section 42-9-400
25   and thereafter the employer shall be reimbursed from the Second
26   Injury Fund for such further compensation or medical expense as
27   the employer shall provide for the employee under this chapter.
28      (d) In order to receive additional benefits from the Second
29   Injury Fund as permitted by Sections 42-9-150 and 42-9-170, the
30   employer shall establish that he had knowledge of the employee’s
31   preexisting permanent physical impairment prior to the time of the
32   subsequent injury by accident, unless the employer can establish
33   that he did not have prior knowledge of the employee’s preexisting
34   physical impairment because the existence of the condition was
35   concealed by the employee.”
36
37                                PART III
38
39                           Loss Cost Multiplier
40
41   SECTION 1. Chapter 73, Title 38 of the 1976 Code is amended to
42   read:
43

     [332]                             23
 1                               PART IV
 2
 3                    Severability and Time Effective
 4
 5   SECTION 1. If any section, subsection, item, subitem, paragraph,
 6   subparagraph, sentence, clause, phrase, or word of this act is for
 7   any reason held to be unconstitutional or invalid, such holding
 8   shall not affect the constitutionality or validity of the remaining
 9   portions of this act, the General Assembly hereby declaring that it
10   would have passed this chapter, and each and every section,
11   subsection, item, subitem, paragraph, subparagraph, sentence,
12   clause, phrase, and word thereof, irrespective of the fact that any
13   one of more other sections, subsections, items, subitems,
14   paragraphs, subparagraphs, sentences, clauses, phrases, or words
15   hereof may be declared to be unconstitutional, invalid, or
16   otherwise ineffective.
17
18   SECTION 2. This act takes effect on July 1, 2007, and applies to
19   injuries that occur on or after this date.
20                                 ----XX----
21




     [332]                           24

								
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