by Jason Griggs
GREENVILLE, SC – There are numerous defenses available to employers and carriers when it comes to defending workers’ compensation claims in South Carolina; however, it is important to note that many of these defenses are affirmative defenses that must be timely pled on the Form 51 (Employers’ Answer to Request for Hearing). The first two defenses we will discuss are time limitations that are imposed on the employee: the 90-day notice and the 2-year statute of limitations provisions. Section 42-15-20 mandates that injured workers must give notice of any accident within 90 days after the accident. The statute does not detail a specific method for giving notice, i.e., it does not have to be in writing. In most cases notice is provided verbally and usually backed up by documentation, but again that is not required. Finally, an employee’s failure to provide notice will bar the employee from any workers’ compensation benefits unless the employee can provide a “reasonable excuse” for the failure to provide notice and the employer has not been prejudiced by the lack of notice. Notice when dealing with repetitive trauma cases must be provided within 90 days of the date the employee discovered or could have discovered that the condition is compensable. The repetitive trauma notice provision is more thoroughly fleshed out in the case of King v. International Knife and Saw-Florence, 395 S.C. 437, 718 S.E.2d 227 (Ct. App. 2011). The 2-year statute of limitations provision is laid out in Section 42-15-40 and states, “The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident, or if death resulted from the accident, within two years of the date of death.” The statute of limitations statute does require documentation of the claim to be filed with the commission in order to be satisfied.
Intoxication, horseplay, and willful intent serve as additional defenses under the Act. Section 42-9-60 states, “No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.” It is not uncommon for the specter of intoxication to present itself in workers’ compensation cases; however, historically it has proven difficult for employers and carriers to successfully defend a case based on intoxication. In almost all cases it is not enough to have a positive post-accident drug or alcohol test. A positive post-accident test is helpful, but the employer and carrier will also need to develop eyewitness testimony indicating that the injured worker’s actions and behavior leading up to the accident were consistent with those of an intoxicated person. Additionally, it must be shown that the intoxication was the proximate cause of the accident. Horseplay and willful intent can arise in cases where employees get into fights at work, where employees are simply “goofing off”, and / or cases involving suicide. All of these situations are high-fact dependent, and it would be beyond the scope of this article to delve too deeply into the details. The key takeaway should be spotting the issue in your particular case and then contacting your favorite defense attorney to determine if a valid defense exists.
The seminal case Cooper v. McDevitt & Street Company, 260 S.C. 463, 196 S.E.2d 833 (1973), details how an employer can defend a claim when an employee knowingly and intentionally falsifies a pre-employment questionnaire regarding prior injuries. The basis of the defense is that when an employee makes false statements to secure employment, the employer-employee relationship may be rendered voidable. The McDevitt & Street defense lays out 3 factors that must be present: 1) the employee must knowingly and willfully make a false representation as to his physical condition; 2) the employer must rely on the false representation and the reliance must be a substantial factor in the hiring; 3) there must be a causal connection between the false representation and the injury. The details of the defense and how it may work in practice is best illustrated by summarizing how the defense played out in the McDevitt & Street case. Cooper was hired to do construction work that required heavy lifting, and he completed a medical history form that indicated he had not had any prior back problems. Cooper did have a history of back problems and had previously received a disability award from the commission. Cooper re-injured his back while lifting at work. In this case, the Court denied his claim on the basis that his employment was voidable due to his misrepresentation.
In closing, it must be pointed out that the most commonly deployed “defense” is to prove that the accident did not take place as alleged by the employee, or that medical evidence does not support causation between the accident and the alleged injury. The specific defenses discussed briefly above are all highly fact specific and if you spot one of these issues in your case be sure to contact your favorite defense attorney to discuss further. The South Carolina Workers’ Compensation Act is often going to give the benefit of the doubt to the allegedly injured worker. However, armed with the defenses discussed in this article, employers and carriers have a fighting chance to come out on top!
If you have questions concerning possible defenses in South Carolina Workers’ Compensation claims, feel free to contact me directly at (864)527-3288 or [email protected].