August 23, 2014

On the job injury claim value.

This article discusses some factors that should be considered if you’ve been hurt on the job and you are trying to determine what your case is worth under South Carolina’s worker compensation law.

Unless your work injuries resulted in some degree of a permanent injury, then there would typically be no settlement at the end of your South Carolina workers’ compensation case. Unlike an injury sustained in a car accident, there is no recovery for pain and suffering and loss of enjoyment of life as part of a workers’ compensation claim. You have to be able to show that there was some degree of a permanent impairment or some extent of disability in order to get a settlement.

Let’s assume that you’ve got a situation with a much more severe injury. For the purposes of this article I’ll consider a worker who has had a herniated disc injury and has had to have back surgery.  What factors would determine how much this worker’s is worth?

The first place to start is your compensation rate as that has a direct effect on how much money you get paid. Your compensation rate is the amount that you’re paid on a weekly basis if you are out of work for any extended period of time having been hurt on the job. Typically, the compensation rate is calculated by taking your average weekly gross wages for the one-year period of time before you got hurt (typically using wages for the four quarters preceding the quarter in which you got hurt), and then taking 2/3rds of that amount.  If you were earning an average of $600 a week in gross wages, you would then be paid 2/3rds of that amount, or $400, as your compensation rate under South Carolina law while you were out of work. South Carolina also has maximum compensation rates which are adjusted each year. In 2012, the maximum compensation rate in South Carolina is $725.47. So, if you earned $2,000 a week, gross wages, you are only going to get paid $725.47 as that’s the maximum amount that someone can be paid while they are out on workers’ comp., for a 2012 injury. For 2011, the maximum compensation rate was $704.92.

Once your compensation rate has been determined, how much do you get at the end of the case? Typically, there are three types of recoveries that could be available to you at the end of your workers compensation claim.

The first would be a recovery for scheduled member disability. It’s often referred to as a recovery for permanent impairment but this is wrong under South Carolina law. The statutory provision that applies here is Section 42-930. Under this provision, a whole host of body parts are listed with values in terms of number of weeks of compensation assigned to these body parts. Who knows where the original numbers came from in terms of how they value the separate body parts. By way of examples your pinky finger is valued at 20 weeks of benefits. The arm is valued at 220 weeks of benefits. The back, which is the hypothetied we’re using here, is valued at 300 weeks of benefits. If someone with a back injury got a recovery for 20% scheduled member disability of the back, and they had a compensation rate of $400, they would recover $24,000 because we would take 20% of 300, which is 60 weeks, and then we would multiply 60 by the weekly compensation rate. One exception to that hypothetied would be if the injured person has been so significantly injured, maybe they had a multi-level fusion, that they get a recovery for a 50% or greater scheduled member disability to the back. The value of the back changes under our law for any recovery for a 50% or greater disability. Therefore, using a 50% of the back recovery with the $400 comp rate results in a significantly higher recovery of $100,000 because we would take 250 weeks, 50% of 500, and we would multiple that figure by $400.

The second type of recovery that could be available to a person in this situation would be permanent partial disability benefits per Section 42-920 of the South Carolina Workers’ Compensation Act. This involves a situation where the injured worker is able to go back to work but they can’t earn money at the same level that they were making before they got hurt. Let’s say the restrictions placed on the person who’s had the back surgery are such that this person can now only work part-time and their average weekly earnings drop from $600 a week to $300 a week. Our law looks at the difference, which in this case would be $300, and then takes 2/3rds of the difference, $200, here. That gets multiplied by 340 weeks.  So using this scenario, we’d have a recovery of $68,000 (340 weeks x $200).The lawyer handling your case should look at the situation and evaluate if you’d be better off getting the recovery for the scheduled member disability making a claim for permanent partial disability.

The third type of recovery is for total and permanent disability benefits, and that’s covered under section 42-9-10 of the South Carolina Worker’s Compensation Act. Total and permanent disability benefits should be awarded under our law if there’s not a reasonably stable job market for the injured worker. There are other legal factors involved. Under South Carolina law, you have to prove that more than one body part has been adversely affected to get a recovery that is outside of the scheduled member listing under 42-9-30. Often, we work to establish by conferring with our clients’ doctors to make sure we get them to address all the body parts that have been adversely affected. In a situation of total and permanent disability, using our back injury example, the cap under South Carolina law is 500 weeks of benefits. The insurance company gets to take a credit for every week that it has pays weekly compensation while the injured worker’s been out of work. If you’ve been out of work for close to two years and 100 weeks of benefits have been paid, that gets taken out of that 500 weeks cap so that has shrunk the maximum recovery to 400 weeks of benefits if there is a recovery of total and permanent disability benefits. The only exceptions to the 500 weeks cap for total and permanent are if an injured worker has a physical brain injury or if there is some degree of paralysis. Paralysis is not what you would typically think of but it has to do with the severity of a spinal cord injury. That’s an issue that we often confer with the treating doctors on. If we can prove the severity of the injury is enough that it would qualify to be considered as paralysis under South Carolina law, our client’s recovery is exponentially increased.

These are just a few of the factors that are involved in determining the value of a worker’s compensation case. Probably the most important thing that an injured worker needs to be aware of is protecting their future medical coverage. If you’ve had back surgery as a result of a work injury, you need to hire a lawyer. Obviously, we would love to help you at the Joye Law Firm but whether you hire us or somebody else, you need to get assistance because I don’t think you can adequately protect your future medical rights without the assistance of an experienced workers’ compensation attorney, particularly in light of changes made to South Carolina’s workers compensation laws in 2007 which made it more difficult for people to protect their future medical rights.

I hope this information has been helpful to you. If you would like to talk to someone at the Joye Law Firm, there is never a charge to do the same. Please contact us by calling 888-324-3100 or by filling out the claim form on this website.