(Transcript)

Justin Lovely:  Hello, everyone. I’m attorney Justin Lovely, here with another edition of the Carolina Justice Report, sponsored by South Carolina Law TV and The Lovely Law Firm. I’m here with my partner and cohost, I guess, Amy Lawrence, and we are going to talk about workers’ compensation claims today, which happens a lot. We’ve got a bunch of a construction boom going on down here at the beach, and a lot of people are working and you never know, you might get hurt on the job, and so we want to give you a brief overview here with our Facebook Live. Leave a comment if we don’t go over a question you might have, and of course you can always contact us. We’ll try to respond to your comments during this episode. Amy, let’s-

Amy Lawrence: Yeah, please do.

Justin Lovely: Yep. Amy, let’s talk about workers’ comp.

Amy Lawrence: Yeah, so we get calls every day from workers that have been injured, and some are minor and some are heart-wrenching, for lack of a better word. The first thing that people always want to know is what do I do? What are the first steps I’m supposed to take?

Justin Lovely:  Yep. Well, the first thing you’ve got to do absolutely, that people forget to do this, you’ve got to report it to your supervisor. It doesn’t have to be the main bossman of the job, just whoever your supervisor is or whatever your policies and procedures are at your workplace, because you only have 90 days to to report that. Now, preferably right after the injury, you report that to your supervisor.

Amy Lawrence: Yeah, I think that in our head, we all have this vision that the injury is going to happen in front of… people, but a lot of times that’s not the case. You’re back there stocking shelves and you’ve pulled something and it doesn’t feel right. That’s when you really need to tell somebody, “Listen, I was back there, I pulled something,” or, “I fell, I hit my head, something fell on it.” Tell them right then, for sure.

Justin Lovely: Yeah, you need to tell them right then. It’s not like we’re filing a lawsuit right then, we’re not filing the claim right then. You actually have, in South Carolina, you have two years to get it filed, but you have to have your supervisor notified within 90 days of the work injury, or you’re not going to have a claim. So definitely, it’s very, very important that you get that done, and we see it happen all the time, people will call us and we’re like, “Well, did you report it to your supervisor?” “Well, no.” And the first thing I say is that, “Call me back after you report it, and then we’ll talk about your case,” because that’s how the ball gets rolling.

Amy Lawrence:  Yeah. They’ll say, “Well, my coworker was with me.” Well, you still have to tell somebody. Yeah.

Justin Lovely: Right, right.

Amy Lawrence: One of the other things people always ask us is, we see this with bigger injuries, they’re in the hospital or they’ve broken a leg and they’re out of work, how are they going to get paid while they’re out of work? Because all this is statutorily based.

Justin Lovely:  Right, right. So, in South Carolina, when you have a workers’ comp claim, you are paid two thirds of your average weekly wage and that is considered your comp rate for workers’ comp. You’re not going to get your full check, but you are going to get two thirds of your average weekly wage while you are unable to work. Now, there is a waiting period in South Carolina. There’s a seven day waiting period before they start any kind of temporary total compensation or anything like that, and if you’re out at least 14 days, they pay you back for that seven days as well, so don’t lose hope. A lot of times people are like, “Well, I’m not getting paid,” and if you’re living paycheck to paycheck, that is tough, but we can get it started for you. Just keep in mind, there is that waiting period.

Amy Lawrence: Once it gets started, do they pay you every week, do they pay you every other week? How’s that go?

Justin Lovely: Yeah, so you’ll get a weekly check, the adjuster pays you directly while the claim is going. Again, so whatever you were earning, let’s just say you were earning $1,000 a week. Okay, well they’re going to send you $660.66, two thirds of that while the doctor says you’re out, and then when the doctor says you can go back to work, then obviously you go back to work at your regular hours, your regular wage, and then whatever you earn, you earn. You’re off the temporary compensation.

Amy Lawrence: We also see this a lot. It’s one thing if you break your leg, you have this one time occurrence that happens with your injury, but what happens for these guys that are lifting heavy things every day and they have a lower back strain, or a shoulder strain or something like that, or it’s worn away, what happens when you have not just a one time occurrence, but a longterm activity kind of thing?

Justin Lovely: Right, so we see those kind of cases that come in. That’s what we would describe as a repetitive injury, where you’re doing the same thing over and over, and then finally on the a hundredth chop of the ax, your back breaks or your arm breaks or whatever. They’re tougher cases. I mean, you still have a workers’ comp claim. They’re a lot harder than a one off claim, but we essentially will have to get, you know, definitely make sure you report it, and then we would investigate the facts of the case. We may have to depose a doctor or two, but as long as we can get a doctor to relate that to your work injury, we can still get some type of recovery.

Justin Lovely: Now, the defense of course will say, “Well, it didn’t happen on the job. It was because,” you know, some preexisting issue. We fight those fights all the time, but if we have to request a hearing, we can request a hearing and let a commissioner decide. It really depends on whether or not we can get a doctor to correlate that and give us some causation. I mean, that’s what we do, and that’s what an experienced workers’ compensation lawyer would be able to do for you if you’re hurt at work with that issue.

Amy Lawrence: So we see this a lot. People get hurt and then the doctor will release them to light duty. What exactly does that mean?

Justin Lovely: So let’s say you get hurt and you’re doing manual labor, and you’re doing heavy equipment lifting or something, I don’t know. You’re hurt, obviously, you can’t go back to that job, but the job says, “Well, he can do some clerical work for me.” Well, that’s considered light duty. That might be like sitting behind a computer, maybe working being a mail clerk. Anything that’s not the full duty lifting and straining, and those sort of things. That would be what light duty would be.

Justin Lovely:  Now, if they offer that to you and your doctor says that you can perform light duty, and of course they may put some restrictions, we see that a lot. There might be, you know, don’t life more than five pounds, no overhead lifting, but you do have to attempt, in South Carolina you have to attempt that light duty. If you don’t attempt the light duty, then it can mess up your workers’ compensation claim. So you definitely have to attempt it. If you do attempt it and you say, “Man, I just can’t, I can’t even do this,” we’re just going to let your employer know, and a lot of times we can negotiate with the adjuster to get you either change the job or change what they’re offering you to do. Or if they still say, “Well, either try it or nothing,” then of course we would just request a hearing and bring those issues up to a commissioner.

Amy Lawrence:  You know, one of the things we get a lot too is the injured party will call us and they’re kind of sheepish when they call in, and they’ll say, “Well, I caused the injury. I dropped the box on my head. I caused the accident.” What happens if they caused the accident? Does that bar them from a claim?

Justin Lovely: Well, the big compromise with our workers’ compensation system is that it takes the fault, except for limited circumstances, all the fault is gone with a workers’ compensation claim. So the downside of that is, well, I can’t sue my employer in open court. The good side is they take away the fault, so you’re going to get a recovery. So don’t worry about it. Even if you’re at fault, you can bring a claim for your workers’ compensation, unless there’s some drug use and of course they’re going to make you do a drug test, or if there’s some kind of horseplay. You know, if you get in a fist fight with your coworker and you…

Amy Lawrence: Fall back and hit your head.

Justin Lovely:  You strain your rotator, yeah, or you strain your rotator cuff, well, that’s your fault. You’re horse playing, I mean, they’re not going to pay that. And even with drug use claims, sometimes we can even get that compensated, it just really depends. Those are the two big ones that pop out when everybody asks me that question, that would keep you from having a workers’ compensation claim. But don’t worry about fault. Even if you’re at fault, call us and we will definitely investigate it and see if it’s something we can get you a recovery for.

Amy Lawrence: Yeah, yeah, yeah, for sure. Okay, so we hear a lot in the news about fraud, like workers’ comp fraud. Everybody always rolls their eyes when they first hear of it, and then they’re like, “Oh, I bet he’s faking it,” whatever, and the lawyer who sees injured people, we see injured people everyday, we cringe, because that’s really not the case. We don’t really see a lot of fraud at all, right?

Justin Lovely: You know, that’s the classic tort reform argument that we hear. That’s what people are using to go around the country and gut state’s workers’ compensation laws. It’s happened in Tennessee, it’s happened in Texas, and don’t get me started on it, because it really is-

Amy Lawrence: And I was just thinking that. I was like, you could go on for three days [crosstalk 00:09:33].

Justin Lovely: Yeah, in the big scheme of things, it’s a very small percentage, and in our state, we have that seven day waiting period, so it’s not like they’re paying you from day one. If you’re going to fake a claim, well, guess what? You’re not getting paid for seven days, then 14 days to get all your money back. You know, those systems are kind of put into play there.

Amy Lawrence:  And that seven days gives them an opportunity to investigate.

Justin Lovely:  Oh yeah, absolutely. I mean, they’ve got a team of investigators, adjusters. They’re working the case, they’re not just going to take your word for it. You’ve got to have medical proof, so they’re going to get your medical records when there’s a workers’ compensation claim. So it’s not like you can say, “Hey, I fell and I need spinal surgery,” and you don’t really need surgery. It’s only all going to be proved up by the medicals, but that claim, the fraudulent claims, that’s definitely, it’s just rhetoric that’s going around the United States.

Justin Lovely: I hope it doesn’t come to South Carolina and gut our system. I don’t think our system is perfect, but it does work, and we get involved with SCHA and different organizations if we have to fight that fight. That argument comes around South Carolina every few years, but hopefully for now it’s not here. It’s just greatly exaggerated.

Amy Lawrence: It’s a myth. It’s a myth, is what it boils down to.

Justin Lovely: Yeah.

Amy Lawrence: It’s BS, yeah.

Justin Lovely: Right.

Amy Lawrence: So, a lot of times we have men and women that are hurt on the job, they’ll call in and they’re kind of sheepish about it, and they’ll feel bad because they’ve worked for the same spot for 15 years, and I think they have this vision that… They don’t understand the insurance. This is why we have insurance, this is why we pay for workers’ comp insurance. They think that they’re going to do right by them, if that makes sense, and then all of a sudden they get their claim denied, or they get offered bare minimum on what they should have really been compensated for, a permanent injury, something like that. What happens when that happens? Whether they get denied or they get offered this low ball offer on what their case is actually worth?

Justin Lovely: Well, and the worst scenario is when it’s denied, it’s a true claim, it’s denied and they cannot go back to work. Because I mean, in that case they’re not even going to pay the temporary total compensation. They’re going to say the claim is denied, and these people are, if they’re living paycheck to paycheck or they’re barely getting by, well guess what? All the income is cut off by the breadwinner. That’s the nightmare scenario. What we have to do, of course we have to, when we do our intake, we investigate the claim. We would sit down, we have a long in depth intake with an injured worker, and if we think it’s a claim that we can help with, then after our investigation we would just simply send our letter of rep over, file our notice of representation with the workers’ compensation commission and request a hearing.

Justin Lovely: Basically, the hearing is this. Do we need to get this temporary total started? Then assuming that they’ve reported it to their supervisor, and assuming that it’s within the statute, and assuming that the commissioner believes that it’s a compensable claim, then we can go ahead and get that ordered to be started. Then they just have to get the treatment going, and then hopefully we reach a resolution when they’re done treating, or reach what’s called maximum medical improvement in the workers’ compensation world. But that’s a long process and it’s definitely a problem. That’s why you need an attorney. I mean, if your claim is denied, your only other option is to file a hearing. You can file a hearing by yourself, but again, you’re going to be going up against the defense adjuster and their denial strategy. We deal with that all the time. We can’t ethically guarantee any outcome, but I mean, that’s part of the reason we do what we do.

Amy Lawrence: A lot of times, when we see these denied claims, just putting a letter of rep on our letterhead and them knowing that they’re being watched and attorneys are involved now, it changes the tide very quickly.

Justin Lovely: Yeah, and I mean, there’s even times when we have a hearing and we’re ruled against us by a single commissioner, and then what we have to do, the fight doesn’t stop there. Sometimes these workers’ compensation claims go on for years. We got one that’s going on for three and a half years right now. There’s an appeals process where you can appeal the commissioner to the full commission, and then even if you lose there, you can appeal it again. We can take our clients as far as we’ve got to go until we get the proper outcome for them.

Amy Lawrence:  Absolutely.

Justin Lovely: There’s a lot to it. It’s also a very dry topic. Nobody wants to, they think it’s never going to happen to me, but you’ve got to know so in the event that you or a loved one, this happens to you, you take your actions and make sure you just don’t mess it up. The biggest thing is just making sure you seek the doctor’s care and document all your injuries, and definitely tell your supervisor so they know you were injured on the job.

Amy Lawrence: The most important part.

Justin Lovely: Yeah. Well, we can keep talking, but that’s enough for today. I want to say one more thing, if you want to make a donation to Toys for Tots, it is the holiday season, we are a main sponsor. Stop by the office and you can drop off your new toys, and we’re going to be working with WBTW this year to gather all those up for the kids, and the kids need us. So keep that in mind, and call us if you need us, but this will be the end of this Carolina Justice Report. Again, we’re sponsored by South Carolina Law TV and The Lovely Law Firm. On behalf of Amy and myself, leave us a comment or call me if you need me, 843-839-4111.

 

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