Published on February 15, 2013

By Michael Whiteley, Eastern Bureau Chief, Workcompcentral

The South Carolina Legislature is scheduled to debate bills that would prevent workers covered by the federal Longshore and Harbor Workers’ Compensation Act or the Jones Act from filing state workers’ compensation claims and would ease the restrictions on “mental-mental” claims.

House Labor,Commerce and Industry Chairman William Sandifer III, R-Seneca, filed House Bill 3369 on Jan. 17 at the request of South Carolina coastal businesses. The businesses are complaining they are required to pay both state workers’compensation premiums and premiums for federal coverage under the federal Longshore and Harbor Workers’ Compensation Act.

A House subcommittee reviewed the bill last month but delayed action until staffers can determine how many workers might be affected and whether businesses without state coverage could be subjected to lawsuits by injured workers. The LongshoreAct covers workers on navigable waterways. The Jones Act, also known as the Merchant Marine Act of 1920, covers injuries on ships bearing U.S.flags.

The bill, which has picked up 24 co-sponsors, says simply that state workers’ compensation law doesn’t apply to workers covered by the “Federal Employers Liability Act, the Longshore and Harbor Workers’ Compensation Act or its extensions or the Jones Act.”

The bill is being opposed by Injured Workers Advocates, which represents the state’s claimants’ attorneys. The group argues the Longshore Act does not apply when workers are injured outside of navigable waterways and imposes strict limits on survivor benefits.

South Carolina law already prohibits workers from “double-dipping” by receiving full workers’compensation benefits under both state and federal law. State benefits are offset by the amount of federal benefits received.

“The fact that there is no double-dipping and you can get relief through the state workers’compensation system when injuries aren’t covered by the federal act is enough to convince us to oppose the bill,” Maxwell said.

Title 42 of the South Carolina Code requires all businesses with four or more employers to carry state workers’ compensation coverage regardless of whether they are required to have federal coverage. Claimants argue state coverage is required because workers may sustain an injury on company property not considered part of a navigable waterway.

Sandifer said Thursday he wants further research on the bill to determine whether both state and federal coverage is necessary.

“We’re in a situation now where we need further investigation,” Sandifersaid.

The South Carolina Small Business Chamber of Commerce has asked the committee staff to research the issue in other states.

“We don’t know whether this will do more harm than good. We don’t know what the impact will be,” Small Business Chamber President Frank Knapp said.

The other major piece of legislation filed this session is HB 3147. The bill is being sponsored by State Rep. Tommy Pope, D-Rock Hill. Pope is managing partner of the personal injury and workers’ compensation law firm Elrod Pope.

The legislation deletes the requirement that “mental-mental” claims – those without a corresponding physical injury – are compensable only in instances when they involve extraordinary and unusual conditions beyond the normal conditions of employment.

The bill also deletes a requirement that workers provide medical evidence that working conditions caused the mental trauma.

The legislation is pending in the House Judiciary Committee, and is opposed by the South Carolina Self-Insurers Association.

Maxwell said Pope filed the bill in response to the South Carolina Supreme Court’s July 11,2012, ruling in Brandon Bentley v. Spartanburg County and the South Carolina Association of Counties.

The court upheld a WCC ruling denying benefits for a Spartanburg County sheriffs’ deputy who shot and killed a man during a neighborhood disturbance on Oct. 21, 2009. Bentley filed a workers’ compensation claim on March 10, 2010, indicating he has suffered post-traumatic stress syndrome from the shooting and was unable to work.

The Supreme Court said Bentley had failed to show that shooting was an “unusual or extraordinary” condition of his employment.

But the high court noted that five states, Hawaii, Michigan, New Jersey, New York and Oregon,allow compensation for mental-mental claims under the stress of normal working conditions. The court called on the South Carolina Legislature to ease the restrictions on mental-mental claims.

“Advances in medical science have made it easier for medical professionals to diagnose and verify the validity of mental injuries, enabling the courts to weed out fraudulent claims,” Chief Justice Jean Hoafer Toal said in the opinion.

“While psychiatry and psychology many not be exact sciences, they can provide sufficiently reliable information concerning causation and treatment of psychic injuries . . .” Toal said in the opinion.

Mike Chase, legal advisor to SCSIA, said Thursday that Pope’s bill will allow claimants’attorneys to argue that workers suffered compensable mental trauma from normal working conditions and may open the flood gates to mental-mental claims.

Injured Workers Advocates is lobbying to pass the legislation. Maxwell said Thursday the high court gave South Carolina lawmakers a clear signal that the law governing mental-mental traumas is in need of reform.

He said the bill should be focused on first responders.

“Realistically,a situation in which a police officer is assaulted and has to fire on someone is a pretty unusual circumstance for most folk to undergo,” Maxwell said. “We think the current law is unfair for the law enforcement community.”

Sandifer’s committee also is considering HB 3141, which would require that the seven members of the WCC be elected rather than appointed by the governor. The bill has not been scheduled for a hearing and is not expected to be debated this session.

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