South Carolina Code of Regulations
(Unannotated)
Current through State Register Volume 31, Issue 9, effective September 28, 2007.
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CHAPTER 67.
SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION
Statutory Authority: 1976 Code Sections 42-3-30 and 42-3-80
ARTICLE 1.
ADMINISTRATION
67-101. South Carolina Workers' Compensation Commission, Location, Transaction of Business.
A. The South Carolina Workers' Compensation Commission's offices are located in Columbia, South Carolina.
B. The Commission transacts business weekdays 8:30 A.M. to 5:00 P.M., excluding State holidays.
C. The South Carolina Workers' Compensation Commission remains in continuous session and meets regularly to transact business which comes before it.
D. The Commission determines the assignment of districts within the State and the district assignment of each Commissioner.
A. These regulations are entitled to a liberal construction in the furtherance of the purpose for which the South Carolina Workers' Compensation Law is intended.
B. In doubtful cases, the application of these regulations shall be in favor of the injured employee.
A. The definition of words and phrases used in this Chapter include:
(1) Accident Reporting Division: A division of the Commission responsible for receipt of the employer's first report of injury, Form 12A (ACORD 4) and Form 12M.
(2) Certified Mail: Mail including that which is certified by the U. S. Postal Service and that carried by a commercial carrier that keeps proper documentation.
(3) Claimant: The party making a claim including his or her attorney.
(4) Claims Department: A department of the Commission which creates and manages the workers' compensation file. The department reviews noncontested case files and assures compliance with the provisions of this Chapter and the Act by requesting and, if necessary, assessing a fine for failure to file reports required by this Chapter and the Act.
(5) Coverage and Compliance Department: A department of the Commission responsible for investigation and, if necessary, requests prosecution of an employer who refuses or neglects to comply with the insurance provisions of this Chapter and the Act. The department maintains records of employers, employees, insurance carriers, self-insurance funds, and the State Accident Fund's compliance with the Chapter and the Act. The department is authorized to request and, if necessary, assess a fine for failure to file reports required under this Chapter and the Act.
(6) Employer's Representative.
(a) The employer's insurance carrier, the claims administrator for a self-insurance fund or a self-insured employer, the State Accident Fund, and counsel of record for the employer and its insurance carrier.
(b) If an employer is operating as an unqualified self-insured, the term "employer's representative" shall mean the unqualified self-insured employer and its attorney, if any, who shall be directly responsible for compliance with the provisions of this Chapter and the Act.
(7) Federal Employer Identification Number: "FEIN."
(8) Informal Conference: Also called a "viewing," an informal conference is a meeting with the claimant, the employer's representative, and a Commissioner or claims mediator. At the informal conference, the Commissioner or claims mediator answers questions about the claim and reviews, for approval, a proposed settlement of a claim. An informal conference may be held for the purpose of certifying a Form 17 according to R.67-505E and R.67-506F.
(9) Judicial Department: A department of the Commission which assigns the informal conference, contested case, and Commission review docket and issues the hearing notice. The department reviews the Commission's files and assures compliance with the provisions of this Chapter and the Act by requesting and, if necessary, assessing a fine for failure to file reports required by this Chapter and the Act.
(10) Medical Review Division: A division of the Commission which administratively reviews physician fees and hospital charges to assure compliance with the Medical Services Provider Manual and the Hospital Per Diem Schedule.
(11) Public Assistance Division: A division of the Commission responding to the general inquiries of employees and employers concerning their rights, benefits, and obligations under the Act. The service does not provide legal advice nor offer opinions concerning a particular claim.
(12) Self-Insurance Division: A division of the Commission which monitors the compliance of self-insured employers and self-insurance funds with this Chapter and the Act. The division reviews applications to self-insure and is authorized to request and, if necessary, assess a fine for failure to file reports required under this Chapter and the Act.
(13) South Carolina Workers' Compensation Commission: the Commission.
(14) State Workers' Compensation Fund: the State Accident Fund.
(15) Unqualified Self-Insured Employer: An employer who refuses or neglects to comply with the insurance provisions of this Chapter and the Act.
(16) Workers' Compensation Law: the Act.
(17) Workers' Compensation Commission's file number: the W.C.C. file number.
B. In addition, other words and phrases are defined in the article most closely associated with the word or phrase.
A. The Commission prepares and approves all required forms. A person shall use a Commission form and shall not substitute another document for a form. Photocopying or reproduction of a form on paper the same size is permitted, provided content is not altered.
B. The Commission supplies at a reasonable charge, upon written request to the Commission's Mail Room, the following forms.
(1) Form S-1, Notice of Third Party Action, Employer;
(2) Form S-2, Notice of Third Party Action, Employee;
(3) Form S-3, Entitlement to Right of Action;
(4) Form S-4, Court Certificate;
(5) Form 2, Employer's Notice of Being Subject to the Act;
(6) Form 5, Corporate Officer Notice to Reject;
(7) Form 6, Application to Create a Self-Insurance Fund;
(8) Form 6A, Application for Membership in a Self-Insurance Fund;
(9) Form 7, Application to Individually Self-Insure;
(10) Form 7A, Corporate Guaranty;
(11) Form 8, Proof of Compliance, Surety Bond;
(12) Form 8A, Proof of Compliance, Securities Pledge;
(13) Form 8B, Proof of Compliance, Memorandum of Understanding, and Irrevocable Letter of Credit;
(14) Form 8C, Proof of Compliance, Excess Insurance;
(15) Form 9, Certificate for Self-Insurance;
(16) Form 10, Self Insurance Tax Return [Reserved];
(17) Form 11, Self Insurer's Quarterly Financial Report;
(18) Form 11A, Self Insurer's Annual Financial Report;
(19) Form 12A, Employer's First Report of Injury (ACORD 4);
(20) Form 12M, Annual Minor Medical Report;
(21) Form 14A, Health Insurance Claim Form (HCFA-1500);
(22) Form 15, Temporary Compensation Report;
(23) Form 15S, Supplemental Report of Varying Temporary Partial Payments;
(24) Form 16, Agreement for Permanent Disability/Disfigurement Compensation;
(25) Form 17, Receipt of Compensation;
(26) Form 18, Periodic Report;
(27) Form 19, Status Report and Compensation Receipt;
(28) Form 20, Statement of Earnings of Injured Employee;
(29) Form 21, Employer's Request for Hearing;
(30) Form 24, Application for Lump Sum Award;
(31) Form 27, Subpoena;
(32) Form 30, Request for Commission Review;
(33) Form 31, Notice of Review Hearing;
(34) Form 32, Request to Waive Appeal Filing Fee;
(35) Form 36, Medical Fee Approval;
(36) Form 38, Employer's Withdrawal of Election to Adopt the South Carolina Workers' Compensation Act;
(37) Form 50, Employee's Notice of Claim and/or Request for Hearing;
(38) Form 51, Employer's Answer to Request for Hearing;
(39) Form 52, Employee's Notice of Claim and/or Request for Hearing, Death Case;
(40) Form 53, Employer's Answer to Request for Hearing, Death Case;
(41) Form 54, Employer's Notice of Claim and/or Request for Hearing;
(42) Form 55, Second Injury Fund's Answer to Employer's Request for Hearing;
(43) Form 58, Pre-hearing Brief;
(44) Form 59, Appellant's Informal Brief;
(45) Form 61, Attorney Fee Petition;
(46) Form 62, Compliance Agreement;
(47) Form 65, Waiver of Claim Involving an Occupational Disease;
(48) Form 68, Inpatient Hospital Per Diem Rate Calculation Report;
(49) Second Injury Fund Form 1, Agreement to Reimburse Compensation;
(50) Second Injury Fund Form 2, Reimbursement Request;
(51) Second Injury Fund Form 3, Employer's Notice of Claim for Reimbursement from Second Injury Fund;
(52) Second Injury Fund Form 4, Medical Information Request;
(53) "Information for Employer" brochure;
(54) "Workers' Comp Works for You" brochure;
(55) "Frequently Asked Questions about Informal Conferences" brochure.
A. A person filing a form with the Commission shall complete each information blank on the form. Each form shall contain the W.C.C. file number and the employer's FEIN, if known.
B. The Commission may return an incomplete form to the sender with an explanation of its deficiency.
A. The date of filing a form or document with the Commission is provided in subsections B, C, and D, below.
B. A form or document delivered to the Commission by first class mail or by hand delivery is filed the date of receipt in the Commission's offices as indicated by the earliest date stamped on the form or document by an official Commission stamp with the exception of forms and documents delivered pursuant to R.67-205C and R.67-205D.
C. A form or document delivered to the Commission by certified or registered mail is deemed filed the date of deposit in the United States Postal Service as indicated by the date of postmark.
D. The following forms or documents are deemed filed on the date on the accompanying certificate of service properly addressed to the Commission: Forms 15(III), 50, 51, 52, 53, 54, 55, 58, 30, and appellate briefs.
A. To file a claim, file with the Commission's Claims Department a Form 50, Form 52, or a letter as provided below.
B. To file a claim on a Form 50 or Form 52, mark the box at the signature line which states "I am filing a claim. I am not requesting a hearing at this time."
(1) Address and deliver the form to the Claims Department.
(2) The Claims Department will notify the employer's representative a claim has been filed.
(3) The employer's representative shall immediately contact the claimant.
(4) Filing a claim does not request a hearing nor is the employer's representative required to file a Form 51 or 53.
C. A letter filed with the Commission also files a claim. The letter should include the information listed in items (1) through (12) below:
(1) Claimant's name (and worker's name, if different);
(2) Claimant's address (and worker's address, if different);
(3) Claimant's home and work telephone numbers (and worker's home and work telephone numbers, if different);
(4) Claimant's social security number (and worker's social security number, if different);
(5) Employer's name;
(6) Employer's address;
(7) Employer's telephone number;
(8) Employer's insurance carrier, if known;
(9) Date of injury;
(10) The county in which the injury occurred;
(11) Type of injury (to which area of body);
(12) Description of the accident.
(13) Failure to include any of the information above does not bar the claim if the information necessary to an issue in the claim is given to the Claims Department upon request.
(14) The Claims Department will notify the employer's representative as in section B(2) above. The employer's representative shall immediately contact the claimant.
A. To request a hearing, file a Form 15, Form 50, or Form 52 with the Commission's Judicial Department as provided below:
(1) Mark the box at the signature line on the Form 50 or Form 52 which states, "I am requesting a hearing," or sign and date under Section III of the Form 15 "Notice to Injured Worker or Legal Representative When Temporary Compensation Has Been Stopped."
(2) Address and deliver the form to the Judicial Department.
(3) The Commission serves the Form 15, Form 50, or Form 52 on the employer according to R.67-210 and R.67-211.
(4) When under the laws of this State the employer and its insurance carrier, if any, are required to be represented by an attorney in a contested case hearing, an attorney shall be designated according to R.67-603.
B. Filing a Form 50 or Form 52 with the Commission requesting a hearing also files the claim if a claim has not been filed before.
A. The employer's representative may request a hearing by filing the appropriate form as provided below with the Commission's Judicial Department and serving the form pursuant to R.67-211.
B. To request a hearing for permission to pay compensation due to death, permanent partial, or permanent total compensation, file a Form 21 with the Judicial Department.
(1) The claimant may, but is not required to, file a response to the Form 21 in writing.
(2) File a response, if any, as provided by R.67-604B(1) and B(2).
C. To request a hearing for permission to terminate temporary compensation after one hundred fifty days after notice of the injury to the employer, file a Form 21 with the Judicial Department pursuant to R.67-506.
D. To request a hearing between the employer and the Second Injury Fund, file a Form 54 with the Judicial Department and serve the Form 54 on the Second Injury Fund pursuant to R.67-211.
E. When under the laws of this State an employer and its insurance carrier, if any, are required to be represented by an attorney in a contested case hearing, its attorney must file a letter of representation with the Judicial Department and provide a copy to the opposing party no later than thirty days from the date of service of the Form 21 or Form 54. Notice will be served pursuant to R.67-210 based on the Commission records on the day the notice is mailed.
A. The day of the event, after which a designated period of time begins, is excluded. The last day, of the designated time period, is included.
B. Saturdays, Sundays, State, and Federal holidays are included unless the designated time period ends on a Saturday, Sunday, State, or Federal holiday in which case the next day that is not a Saturday, Sunday, State, or Federal holiday is included as the last day.
(1) When the claimant is represented by an attorney, the attorney shall serve a copy of the Form 15(III), Form 50, or Form 52 hearing request by depositing the form in the United States Postal Service first class postage, addressed to the opposing parties pursuant to R.67-210. Service is deemed complete upon mailing unless the form is returned. If the form is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure. A hearing will not be set until service is complete and proof of service is filed with the Judicial Department.
(2) When the claimant is not represented, the claimant may serve the Form 15(III), Form 50, or Form 52 hearing request as set forth in A(1) above. When the claimant does not serve the hearing request, the Commission will serve the request by depositing the form in the United States Postal Service first class postage, addressed to the opposing parties per R.67-210.
B. Employer's Representative's Request for Hearing and/or Response to a Request For Hearing.
(1) When the claimant is represented by an attorney, the employer's representative shall serve a copy of the Form 21, Form 51, or Form 53 by depositing the form in the United States Postal Service first class postage, addressed to the claimant's attorney. Service is deemed complete upon mailing unless the form is returned. If the form is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure. A hearing will not be set until service is complete and proof of service is filed with the Judicial Department.
(2) When the claimant is not represented by an attorney, the employer's representative shall serve a copy of the Form 21, Form 51, or Form 53 by personal service or by certified mail, return receipt requested, delivery restricted to the addressee. When service is by certified mail, service is complete the date of the addressee's receipt of the form as indicated by the signed certified mail return receipt. If the form is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure. A hearing will not be set until service is complete and proof of service is filed with the Judicial Department.
C. Other Forms and Documents.
(1) Unless otherwise specified in this Chapter, serve other forms and documents by depositing the form or document in the United States Postal Service first class postage, addressed to the opposing parties per R.67-210. Service is deemed complete upon mailing unless the document is returned. If the document is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure.
(2) When the claimant is not represented by an attorney, the claimant may serve a form or document according to C(1) above. When the claimant does not serve the form or document, the Commission will serve it by depositing the form or document in the United States Postal Service first class postage, addressed to the opposing parties per R.67-210.
67-212. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff. June 27, 1997.
67-213. Service of Orders, Hearing Notices, and Review Hearing Notices.
A. The Commission serves orders by certified mail, return receipt requested or by deposit in the United States Postal Service, first class postage, addressed to the parties according to R.67-210.
(1) Service is made by delivering a copy of the order to a party representing himself or herself or to the attorney representing the party.
(2) When service is made by certified mail, the date of service is the date of the addressee's receipt indicated by the certified mail return receipt. When service is made by first class mail, five days are added to the date of mailing. Service by first class mail is deemed complete five days after the date of deposit in the United States Postal Service.
B. The Commission serves hearing notices and Form 31, Review Hearing Notices, by deposit in the United States Postal Service first class postage, addressed to the parties according to R.67-210. Service is deemed complete upon mailing. The Commission may, but is not required to, serve such notices by certified mail, return receipt requested. Service by certified mail is complete upon receipt.
C. When an attorney represents a party, the party is not served. If the mailing is returned, service may be completed as in R.67-211.
A. To subpoena a person or document(s), complete and serve a Form 27 as set out below.
B. When the party issuing the Form 27 is represented by an attorney, the attorney shall complete and sign the Form 27.
C. When the party issuing the Form 27 is not represented by an attorney, the party may obtain a blank Form 27 signed by an authorized representative of the Commission.
D. When the individual being served is represented by an attorney, serve by depositing the Form 27 in the United States Postal Service, first class postage addressed to the attorney. Service is deemed complete upon mailing, unless the form is returned. If the form is returned, service may be completed pursuant to South Carolina Rules of Civil Procedure.
E. When the individual being served is not represented by an attorney, serve the individual by personal service or by certified mail, return receipt requested, delivery restricted to the addressee. When service is by certified mail, service is complete the date of the addressee's receipt of the form as indicated by the signed certified receipt. If the form is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure.
F. Do not file the Form 27 with the Commission. When the Form 27 is to be used at a hearing, retain a copy and proof of service to be presented as necessary.
G. An individual may contest a Form 27 by filing and serving a motion to quash or modify pursuant to R.67-215.
A. A party may file a motion when a form is not applicable. The Commission will accept motions including, but not limited to, a motion
(1) Relating to a subpoena or discovery;
(2) Relating to the appointment of a Guardian ad Litem;
(3) Relating to an attorney's appearance, withdrawal, or fee;
(4) Relating to a claim pending Commission review;
(5) Relating to postponing or adjourning a hearing;
(6) Relating to self-insurance privileges;
(7) Relating to penalties and or interest;
(8) Relating to third party practice.
B. The Commission will not address a motion involving the merits of the claim, including, but not limited to, a motion
(1) For dismissal; or
(2) For summary judgment.
C. The Commission does not provide a form for a motion. A motion shall contain a complete caption of the case including the title of the action, the state and county in which the injury occurred, the Commission's name, the workers' compensation file number, and a designation of the relief or order sought.
D. The body of the motion shall contain numbered paragraphs each limited to a statement of a single set of circumstances. The final paragraph of the motion shall state specifically the relief or order sought.
(1) If the grounds on which the motion or reply depend is based on the existence of facts not in the Commission's file, the moving party shall file an affidavit or affidavits evidencing those facts. The opposing party may file an affidavit or affidavits in reply.
(2) If the motion or reply depends on the existence of facts in evidence or are admitted in forms on file with the Commission, the party shall cite the document and page number.
E. When the claimant or an uninsured employer is not represented by an attorney, the moving party shall serve the motion by personal service or by certified mail, return receipt requested, delivery restricted to the addressee.
(1) When service is by certified mail, service is complete the date of the addressee's receipt of the mailing as indicated by the signed certified return receipt. Otherwise, the moving party shall serve the motion by any of the methods listed or by depositing the motion in the United States Postal Service, first class postage, addressed to the appropriate party.
(2) If the mailing is returned, service may be completed pursuant to the South Carolina Rules of Civil Procedure.
F. The moving party shall file the motion and proof of service with the Judicial Department. The moving party may attach a memorandum in support. The opposing party may file a memorandum in reply within ten days of service of the motion. The parties may agree to an extension by filing a written consent. Failure to respond is deemed a general denial. No further memoranda are allowed, unless requested by a Commissioner.
G. The jurisdictional commissioner may consider the motion after the opposing party has had ten days notice of the motion and shall grant or deny the relief requested.
(1) The jurisdictional commissioner may hear the parties in any county or by telephone conference call, however, a hearing is not necessary.
(2) The jurisdictional commissioner shall issue a written decision to be filed with the record and served on all parties.
A. When a minor or mentally incompetent person is a party, a Guardian ad Litem shall represent the minor or mentally incompetent.
B. When a claim involves a fatality, a Guardian ad Litem shall represent the minor child or children.
C. A Guardian ad Litem may file proof of guardianship with the Commission's Judicial Department or a person may request a Commissioner appoint a Guardian ad Litem by filing and serving a motion pursuant to R.67-215.
D. The qualifications of and proceedings for appointment of a Guardian ad Litem shall be the same as those found in the South Carolina Rules of Civil Procedure; but, a Commissioner may require the appointment of an attorney as the Guardian ad Litem.
E. The Commission shall not hold a hearing for final determination of benefits until proof of appointment of a Guardian ad Litem is filed with the Commission.
F. The Commissioner may order the Guardian ad Litem paid from the proceeds of the claim for services rendered. If the parties settle the case according to Article 8, the Guardian ad Litem shall file a Form 61, Attorney Fee Petition, according to R.67-1204 for approval of the fee. The employer's representative is not liable for the Guardian ad Litem's expenses; however, upon conclusion of the claim, the employer's representative may pay the Guardian ad Litem directly as provided by an approved Form 61 or as ordered by the Commission with such payment deducted from the recipient's compensation.
A. All employers operating under the Act, whether by law or by election, shall post publicly and keep posted in their place of business a Form 2, Employer's Notice of Being Subject to the Act.
B. The notice shall state, substantially, the following:
"We are operating under and subject to the Workers' Compensation Act of South Carolina. In case of accidental injury or death to an employee, the injured employee, or someone acting on his or her behalf, shall give immediate notice to the employer or general authorized agent. Failure to give immediate notice may be the cause of serious delay in the payment of compensation to the injured employee or his or her beneficiaries and may result in failure to receive any compensation benefits whatsoever."
ARTICLE 4.
REPORTS REQUIRED, EMPLOYERS AND INSURANCE CARRIERS
67-401. Designation of Authorized Recipient of Service and Other Demands.
A. Every workers' compensation insurance carrier, self-insured employer, and self-insurance fund doing business in this State shall designate one address as the authorized recipient of service, mail, documentation, requests, inquiries, and other demands concerning the employer, the insurance carrier, the self-insured, the self-insurance fund, and a member of the self-insurance fund.
B. The workers' compensation insurance carrier, self-insured employer, and self-insurance fund shall provide in writing the name, address, and telephone number of the authorized recipient to the Commission's Coverage and Compliance Department.
C. The designation must be made by January 31 of each year. The designation is deemed continuous. A change in designation shall not be effective until after thirty days written notice to the Coverage and Compliance Department.
A. A corporate officer may reject the Act by taking the following action:
(1) The corporate officer shall complete and file with the employer's insurance carrier a Form 5, Corporate Officer Notice to Reject.
(2) The effective date of rejection is the effective date listed on the Form 5, no sooner than the day following the day the corporate officer signed the form.
(3) The corporate officer shall provide notice to the employer of the rejection of the Act by giving a copy of the Form 5, personally, to the employer or its agent or by sending it by registered or certified mail to the employer or its agent.
B. An insurance carrier or self-insured fund may substitute its own form for the Form 5. Any substitute form must:
(1) Include substantially the same information included on the Form 5, including information that advises the corporate officer of the effects of rejecting the Act; and
(2) Require the corporate officer's signature be notarized.
A. An employer adopts the Act by obtaining workers' compensation insurance or by operating under an approved self-insurance program.
B. When an employer exempt from the Act has with its employees elected to operate under the Act and has filed notice of such agreement and complied with the provisions of the Act, the employer and its employees who have elected with the employer shall, until notice to the contrary is filed with the Commission, continue to operate under the Act without additional election.
A. An employer who, having elected to come under the Act, being at that time exempt, is deemed to continue to operate under the Act until a Form 38, Notice of Withdrawal from the Act, is filed with the Commission's Coverage and Compliance Department and its employees are provided written notice in section B below.
B. An employer shall withdraw from the Act by filing a Form 38 with the Coverage and Compliance Department as in subsection B(1), or, by notifying its insurance carrier as in subsection B(2) below.
(1) The employer shall complete and file with the Coverage and Compliance Department the original and one copy of a Form 38.
(a) Upon receipt of a completed, signed, and notarized Form 38, the Coverage and Compliance Department will return to the employer an approved Form 38.
(b) The effective date of withdrawal, sixty days from the date of filing, will appear on the form.
(c) The employer shall provide notice to its employees before the effective date of withdrawal by posting the approved Form 38 conspicuously in the place of employment or by giving each employee, personally, a copy of the approved Form 38.
(2) If the employer elects to withdraw from the Act by notifying in writing its workers' compensation insurance carrier, the employer's representative shall provide notice to the Commission by taking the following action:
(a) Before the effective date of the employer's insurance policy's cancellation, the insurance carrier shall complete and file with the Coverage and Compliance Department the original and one copy of a Form 38 signed by the employer.
(b) Upon receipt of a completed, signed, and notarized Form 38, the Coverage and Compliance Department will return to the insurance carrier an approved Form 38. The insurance carrier shall give the approved Form 38 to the employer.
(c) The effective date of withdrawal, sixty days from the date of filing, will appear on the form.
(d) The employer shall provide notice to its employees as in B(1)(c) above.
C. The insurance carrier's filing a policy cancellation or termination notice with the Coverage and Compliance Department or the National Council on Compensation Insurance shall not operate as notice of withdrawal from the Act. The insurance carrier shall file the Form 38 in addition to a notice of termination required in R.67-405.
D. A nonexempt employer, becoming exempt from the insurance provisions of this Chapter and the Act, may file an exemption with the Coverage and Compliance Department as provided below:
(1) File a Form 38, an attached affidavit, and supporting documentation with the Coverage and Compliance Department.
(2) The affidavit and supporting documentation must establish the employment and the employer are exempt from the insurance provisions of the Act.
(3) The form is subject to approval by the department if the supporting documentation establishes an exemption under the Act.
(4) It is the employer's responsibility to assure compliance with the insurance provisions of the Act.
(a) A Form 38 approved according to this Regulation creates a rebuttable presumption of exemption from the Act.
(b) An exemption established by a Form 38 shall not prevent the department from investigating and, if necessary, requesting prosecution of the employer.
(5) The Commission may impose the maximum penalty and fine available against the employer who, although previously exempt from the Act, then operates subject to the Act and fails to comply with the insurance provisions of this Chapter and the Act.
67-405. Employers and Insurance Carriers, Proof of Compliance.
A. Every employer operating under the Act shall file with the Commission proof of its compliance with the insurance provisions of this Chapter and the Act.
B. When an employer insures its liability under the Act, the insurer shall file a report of coverage within thirty days of the inception date of the policy with the Commission as proof of the employer's compliance with the insurance provisions of this Chapter and the Act and as provided herein.
(1) A worker's compensation insurance carrier shall file a report of coverage as provided in R.67-406.
(2) The State Fund shall file a report of coverage as provided in R. 67-408.
(3) A self-insurance fund shall comply with the insurance reporting requirements in Article 15 of this Chapter.
C. A report of coverage must state the effective date of insurance coverage, the correct name and address of the insured, and the insured's FEIN.
D. The report of coverage must in the space provided for an expiration date state the word "Continuous".
E. If the employer fails to renew its insurance, or the insurer cancels the policy, the employer's insurer shall immediately notify the Commission that it no longer insures the employer by filing a notice of termination with the Commission.
(1) A worker's compensation insurance carrier shall file a notice of termination as provided in R.67-406 or R.67-407.
(2) The State Fund shall file a notice of termination as provided in R.67-408.
(3) A self-insurance fund shall file notice of termination of a fund member's self-insurance privileges as provided in Article 15 of this Chapter.
F. A report of coverage and membership in a self-insurance fund shall not expire nor shall termination or cancellation be effective until after thirty days from the date a notice of termination, or notice of cancellation of a employer's membership in a self-insurance fund, is filed with the Commission.
G. The employer's representative, and the State Fund shall on behalf of the employer file with the Commission all reports and documents required by this Chapter and the Act.
67-406. Reporting Insurance Policies with Effective Dates on or after July 1, 1989.
A. The National Council on Compensation Insurance (NCCI) is the authorized agent of the Commission for filing a report of coverage and notice of termination required in R.67-405 and the Act for workers' compensation insurance policies effective on or after July 1, 1989 and issued by an insurance carrier providing workers' compensation insurance in this State. This regulation does not apply to self-insured employers, a self-insurance fund, or the State Fund.
B. The insurance carrier shall file a report of coverage and notice of termination directly with the NCCI. The date of receipt by the NCCI is deemed the date of filing with the Commission.
C. The designated forms insurance carriers shall use to comply with R. 67-405, this Chapter, and the Act are:
(1) The NCCI standard Workers' Compensation and Employers' Liability Insurance Policy Information Page, hereinafter NCCI Form WC 00 00 01A; and
(2) The NCCI Policy Termination/Cancellation/Reinstatement Notice, hereinafter NCCI Form WC A; and
(3) The NCCI Immediate Policy Coverage/Cancellation Notice, hereinafter NCCI Form WC A.
D. To issue a workers' compensation insurance policy and file a report of coverage with the Commission, the insurance carrier shall file with the NCCI the NCCI Form WC 00 00 01A, required endorsements and schedules, if any, within thirty days of the policy's effective date.
(1) An insurance carrier may file the NCCI Form, WC A, to meet the thirty day filing requirement if the NCCI Form, WC 00 00 01A, is filed with the NCCI within thirty days from the date the policy is issued.
(2) The NCCI Form WC A does not substitute for the NCCI Form WC 00 00 01A.
(3) Failure to file with the NCCI timely may result in the assessment of a fine against the insurance carrier.
E. Workers' compensation insurance is deemed continuous until notice of termination is filed according to R.67-405 and as provided in F below.
F. To cancel workers' compensation insurance coverage, not to renew workers' compensation insurance coverage, or to reinstate a workers' compensation insurance policy, the insurance carrier shall file with the NCCI an NCCI Form WC A.
(1) The insurance carrier may file this notice with the NCCI thirty or more days before the effective date.
(2) Insurance expiration, termination or cancellation shall not be effective until after thirty days from the date of receipt by NCCI of the NCCI Form WC A.
G. Electronic equivalents to the above-mentioned forms, as specified by NCCI, must provide all name and address information in a field-formatted manner consistent with the International Association of Industrial Accident Boards & Commissions Proof of Coverage Standard.
67-407. Insurance Policies with Effective Dates before July 1, 1989.
A. All insurance carriers other than a self-insurance fund or the State Fund providing workers' compensation insurance effective before July 1, 1989, shall file the reports and notices required in R.67-405 and the Act directly with the Commission's Coverage and Compliance Department until the next policy period.
B. The designated forms insurance carriers shall use to comply with R. 67-405, this Chapter, and the Act are:
(1) RB25, Report of Coverage --Form "A", hereinafter RB25; and
(2) RB26, Report of Cancellation --Form "B", hereinafter RB26; and
(3) RB27, Report of Endorsement --Form "C", hereinafter RB27.
C. To file a notice of termination in R.67-405, the insurance carrier shall file an RB26 with the Coverage and Compliance Department.
(1) The insurance carrier may file the RB26 thirty days or more before the effective date of termination.
(2) Insurance expiration, termination, or cancellation shall not be effective until after thirty days from the date of filing the RB26 with the Coverage and Compliance Department.
D. To amend a previously filed RB25, the insurance carrier shall file an RB27 with the Coverage and Compliance Department.
(1) Reinstatement of insurance coverage effective before July 1, 1989, but which has lapsed after July 1, 1989, shall be filed according to R.67-406.
(2) An RB27 attempting to cancel insurance shall not substitute for an RB26.
E. When the policy period expires for policies issued before July 1, 1989, the insurer shall file a notice of termination as in R.67-407C above and report a new policy period as provided in R.67-406.
67-408. The State Workers' Compensation Fund, Proof of Compliance.
A. The State Workers' Compensation Fund shall file a report of coverage and notice of termination as required in R.67-405 directly with the Commission's Coverage and Compliance Department as provided below.
B. The State Fund shall file the Forms RB25, RB26, and RB27 as in R.67-407 to comply with R.67-405, this Chapter and the Act.
C. To report insurance coverage, file with the Coverage and Compliance Department an RB25.
(1) The RB25 must be filed within thirty days of the policy's effective date.
(2) The insurance is deemed continuous as in R.67-405 until notice of termination is filed according to section D below.
(3) Failure to file an RB25 within thirty days of the policy's effective date may result in the assessment of a fine against the State Fund.
D. To terminate insurance, file an RB26 with the Coverage and Compliance Department.
(1) The RB26 may be filed thirty days or more before the date of termination.
(2) Insurance expiration, termination, or cancellation shall not be effective until after thirty days from the date of filing an RB26 with the Coverage and Compliance Department.
E. To amend a previously filed RB25 or to reinstate insurance coverage, file an RB27 with the Coverage and Compliance Department.
(1) An RB27 does not substitute for an RB26.
(2) Insurance may be terminated according to section D above.
A. When duplicate or dual coverage exists by reason of two different insurance carriers issuing two policies to the same employer securing the same liability, the Commission shall presume the policy with the later effective date is in force and the earlier policy terminated on the effective date of the later policy.
B. When both policies carry the same effective date, one policy may be cancelled by filing a notice of termination retroactive to the date of the policy's inception.
(1) Cancellation must be reported as provided in R.67-405, R.67-406, R.67-407, or R.67-408, as applicable.
(2) The insurance carrier issuing the notice of termination shall provide the employer notice of termination.
67-410. Information Required When Filing Proof of Compliance.
A. The NCCI standard Workers' Compensation and Employers' Liability Insurance Policy Information Page NCCI Form WC 00 00 01A and RB25 Report of Coverage -Form "A" must provide the following information for each business entity insured by the policy of insurance:
(1) The inception date (also known as the effective date);
(2) The policy number;
(3) The employer's FEIN.
B. If the insurance carrier is unable to obtain the employer's FEIN, or the employer has none, the insurance carrier shall provide the Commission's Coverage and Compliance Department a written monthly report of the employer's name and social security number and the efforts taken to obtain the FEIN. The Commission may assess a fine against the insurer for each employer whose FEIN or name and social security number is not reported to the Commission.
C. A self-insurance fund shall provide the Coverage and Compliance Department a written monthly report stating each insured member's FEIN. If the fund is unable to obtain the employer's FEIN or if the employer has none, the self-insurance fund shall report as in section B above. Failure to file the report may result in a fine as in B above and may constitute grounds for revocation of the fund's self-insurance privileges.
D. An employer operating under an approved self-insurance program shall provide the Coverage and Compliance Department a written report stating the employer's FEIN.
A. Each employer shall keep a record of all injuries, fatal or otherwise, received by its employees in the course of their employment.
(1) The record must be made in writing on the Form 12A and retained or filed according to section B below.
(2) The Commission shall not construe the filing of a Form 12A as an admission of liability on the part of the employer or the employer's representative.
B. Employer's Responsibilities
(1) The employer shall make a record of all work-related injuries reported by its employees on the Form 12A and retain the record for a period of two years.
(2) When an injury requires less than five hundred dollars in medical treatment and does not cause more than one lost workday or permanency, the employer may pay for the medical treatment. The employer is not required to make a written report to the employer's representative or to the Commission.
(3) If the employer denies the claim for injuries or does not elect to pay for the medical treatment, the employer shall send a copy of the Form 12A to the employer's representative immediately after the occurrence and knowledge of the injury.
(4) When an injury requires five hundred dollars or more in medical treatments or when it is determined more than one workday will be missed as a result of the injury or there is likely to be permanency, the employer shall send a copy of the Form 12A to the employer's representative immediately.
(5) The employer shall report all fatalities to its representative.
C. Employer's Representative's Responsibilities
(1) When an injury requires less than two thousand five hundred dollars in medical treatments and does not result in compensable lost time or permanency, the employer's representative shall retain the Form 12A filed by the employer for two years. The employer's representative shall make a report of the injuries in this category to the Commission's Accident Reporting Division annually as required in R.67-412.
(2) When an injury requires two thousand five hundred dollars or more in medical treatments or results in compensable lost time or permanency, the employer's representative shall send the Form 12A to the Commission's Accident Reporting Division within ten business days after the occurrence and the employer's knowledge of the injury. In the event the injury was previously processed under section C(1) above, the Form 12A shall be filed with the Commission's Accident Reporting Division within ten business days of the employer's representative's knowledge the limits set in section C(1) above have been exceeded. The Form 12A shall be marked "Previously Processed As Medical Only."
(3) If the employer's representative, or the employer, denies the claim for injuries, the employer's representative shall notify the claimant in writing and send the Form 12A, a Form 19 (reference R.67-414), and a copy of the letter denying the claim to the Commission's Accident Reporting Division within ten business days after the occurrence and the employer's knowledge of the reportable injury.
(4) The employer's representative is required to report all fatalities to the Commission.
D. An unqualified self-insured employer shall file a Form 12A with the Commission's Accident Reporting Division within ten business days after the occurrence and knowledge of an injury, regardless of the nature or seriousness of the injury.
A. The employer's representative shall report annually to the Commission's Accident Reporting Division the number of injuries reported by the employer pursuant to R.67-411C(1) during the calendar year and the total cost of medical treatment for injuries qualified under R.67-411C(1), without regard to the date of accident or date reported to the employer's representative.
B. The annual report shall be on the Commission's Form 12M for the period January 1 to December 31. The Form 12M shall be submitted to the Commission's Accident Reporting Division by April 1 of each year.
C. Reports submitted after April 1 shall be subject to a fine for late reporting plus an additional penalty of five dollars for each day late.
A. After payment of all compensation the employer's representative shall file with the Commission's Claims Department a Form 19, Status Report and Compensation Receipt, as provided in Section C below. If an individual claim file has been created by the Commission, a Form 19 is required to close the file, even if no compensation has been paid.
B. When the employer's representative denies the claim, a Form 19 must be filed with the Claims Department, and the employer's representative shall:
(1) Attach to the form a copy of the letter provided to the claimant denying the claim; and
(2) Complete, sign, and file a Form 19. The claimant's signature is not necessary.
C. In all other cases, complete and file a Form 19 as provided below:
(1) When more than one person receives payment of compensation, prepare a separate Form 19 for each person or Guardian and a final, additional Form 19 indicating the total amount of compensation paid and all medical expenses incurred in the claim.
(2) Complete each line indicating payment of temporary total (TT), temporary partial (TP), and permanent partial (PP) compensation, disfigurement, and final release (an Agreement and Final Release), if applicable.
(3) The claimant's signature is required on the Form 19 when permanent disability, disfigurement, or death benefits are paid or when the claim is settled by a Full and Final Release. The preparer shall sign and date the Form 19.
(4) File the completed Form 19 with the Claims Department.
A. For purposes of Section , the ACORD Form 25-S, Certificate of Insurance, as published by the ACORD Corporation and as issued by the insurance carrier for the insured, shall serve as documentation of insurance. The Certificate of Insurance must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.
B. If an employer is a member of a self-insured fund approved by the Commission, the ACORD Form 25-S, Certificate of Insurance, must be dated, signed, and issued by an authorized representative of the self-insured fund.
C. If the employer has been approved by the Commission to individually self-insure according to R.67-1500, et. seq., the self-insurance certificate issued by the Commission shall serve as documentation of insurance as provided in Section .
A. All insurance carriers, third party administrators, self-insureds, and self-insured funds reporting coverage, accident, and claims information to the Commission shall report such information using electronic interchange standards prescribed by the Commission beginning no later than January 1, 1998.
B. In the alternative, the responsible reporting entity shall have an implementation plan approved by the Commission by January 1, 1998.
C. Unless otherwise exempt by Commission agreement, reporting entities shall be charged a fee for each form or report filed after January 1, 1998, which does not conform to the Commission's prescribed electronic data interchange standard.
D. The fee for filing non-electronic information shall be the difference between the Commission's cost of processing electronic data compared to processing paper forms and reports.
A. As part of the claims review process, the Commission may conduct on-site examinations of all records relating to injuries, fatal or otherwise, sustained in the course and scope of an employee's employment.
B. Insurance carriers, self-insured employers, self-insured funds, the State Accident Fund, and any claims administrator acting on their behalf are required to cooperate with examinations.
C. Claims will be reviewed to ensure timely and accurate payment of benefits and the proper filing of reports as required under Title 42 and Chapter 67.
D. Repeated violations of reporting standards shall be reported to the South Carolina Department of Insurance pursuant to Section .
ARTICLE 5.
TEMPORARY COMPENSATION
67-501. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff. June 27, 1997.
A. Day of incapacity: The day of the injury is the first day of incapacity unless the injured person receives full pay for the day. In that event, the first day of incapacity is the day following receipt of full pay from the employer.
B. Disability:
(1) Incapacity because of injury to earn wages which the employee was receiving at the time of injury in the same or any other employment.
(2) Disability is presumed to continue until the employee returns to work or compensation is otherwise suspended or terminated according to Section .
C. Fractional part of a week: For a fractional part of a week, the daily wage is one-seventh of the weekly wage.
D. Return to work without restriction: A statement of the authorized health care provider about the capacity of the claimant to meet the demands of a job and the conditions of employment. The determination must be made when the claimant's physical condition is static or is stabilized with or without medical treatment. The determination is appropriate when there are no physical limitations on the claimant's ability to perform the same or other suitable job as the claimant performed before the injury.
E. Temporary Partial Incapacity: Partial incapacity for work resulting from the injury.
F. Temporary Total Incapacity: Total incapacity for work resulting from the injury.
G. Waiting Period: The day or days lost because of inability to work on account of the injury are counted in the waiting period even though the days may not be consecutive.
67-503. Payment of Temporary Total and Temporary Partial Compensation.
A. Medical, surgical, hospital, and other treatment including medical and surgical supplies are allowed from the first day of injury.
(1) Temporary total or temporary partial compensation is incurred on the eighth calendar day of incapacity and from the first day of incapacity if the injury results in incapacity for more than fourteen calendar days. The seven and fourteen day periods need not be consecutive days.
(2) Payment and acceptance of temporary compensation files a claim.
B. When the employer's representative begins to pay either temporary total or temporary partial compensation, or salary in lieu of temporary compensation, the employer's representative shall complete Section I of the Form 15, Temporary Compensation Report.
(1) The employer's representative shall file the Form 15 with the Claims Department within ten days of the date of first payment of compensation.
(2) The employer's representative shall serve the Form 15 on the Claimant according to R.67-211 with the claimant's first check.
C. When the compensation rate changes, the employer's representative shall complete, file, and serve, as set out above, a new Form 15.
(1) In an ongoing period of temporary partial compensation where the rate varies from week to week, the employer's representative shall report the first payment on the Form 15 as set out above.
(2) Supplemental payments shall be reported on the Form 15S, Supplemental Report of Compensation, to be filed with the document stopping that period of temporary partial compensation or with the Form 18, whichever becomes due first.
D. If the employer's representative does not pay temporary compensation, the claimant may request a hearing to receive benefits according to R.67-207. Payment of temporary total or temporary partial compensation does not prevent the claimant from seeking any other benefits available under the Act.
67-504. Terminating Payment of Temporary Total or Temporary Partial Compensation During the First One Hundred Fifty Days After Employer's Notice of the Accident.
A. The employer's representative may terminate or suspend temporary compensation during the first one hundred fifty days after the employer has notice of the injury according to Section . When compensation is terminated or suspended, the employer's representative shall complete Section I and Section II of the Form 15, Temporary Compensation Report. The employer's representative shall file the Form 15 immediately with the Claims Department and shall serve two copies of the Form 15 immediately on the claimant according to R.67-211 with documentation attached as to the reason for termination or suspension.
B. To terminate or suspend compensation pursuant to Section (B)(2), the employer's representative must obtain a signed Form 17.
C. The claimant may request a hearing to dispute the termination or suspension of temporary compensation by completing Section III of the Form 15 and filing it according to R.67-207.
67-505. Suspending Temporary Compensation after the First One Hundred Fifty Days after the Employer's Notice of the Injury.
A. After the one hundred fifty day period, the employer's representative shall not suspend or terminate temporary compensation except as provided in this regulation or R.67-506.
B. Disability is presumed to continue until the claimant returns or agrees he or she is able to return to work for fifteen calendar days.
C. Temporary compensation may be suspended as follows:
(1) When the authorized health care provider reports the claimant is able to return to work without restriction to the same or other suitable job, and such job is provided by the employer, the employer's representative may suspend temporary compensation while the claimant is working unless temporary partial compensation is due.
(2) When the authorized health care provider reports the claimant is able to return to work at limited duty and the employer provides limited duty work consistent with the terms upon which the claimant has been released, the employer's representative may suspend temporary compensation while the claimant is working unless temporary partial compensation is due.
(3) When the claimant returns to work for another employer, the employer's representative may suspend temporary compensation while the claimant is working, unless temporary partial compensation is due.
D. When the claimant is unable to complete fifteen calendar days of work, the employer's representative shall reinstate temporary compensation according to the terms of the Form 15 and may request a hearing to terminate compensation by filing a Form 21 according to R.67-506.
E. When the claimant completes fifteen calendar days of work, or fifteen days after the claimant agrees he or she could have returned to work, the employer's representative immediately shall submit a completed Form 17 to the claimant for signature.
(1) The employer's representative shall file the Form 17 signed by the claimant and the employer's representative with the Claims Department within thirty-one days of the date the claimant returned to work or agreed he or she was able to return to work.
(2) Temporary compensation is terminated by the filing of the signed Form 17.
(3) A signed Form 17 does not prevent the claimant from seeking any other benefits available under the Act.
(4) When the claimant returns to work for at least fifteen calendar days but refuses to sign a Form 17, the employer's representative shall file a Form 21 according to R.67-506. The Commission may certify the Form 17 at an informal conference.
F. When the employer's representative suspends temporary compensation for refusal of medical treatment according to Section or Section , the employer's representative shall file a Form 21 according to R.67-506.
G. If the employer's representative reinstates temporary compensation after the fifteen day period above, the employer's representative shall file a new Form 15 according to R.67-503.
H. If the employer's representative refuses to reinstate temporary compensation after the fifteen day period above, the claimant may request a hearing according to R.67-207.
67-506. Terminating Temporary Compensation after the First One Hundred Fifty Days after the Employer's Notice of the Injury.
A. After the one hundred fifty day period, the employer's representative shall not suspend or terminate temporary compensation except as provided in this regulation or in R.67-505. Disability is presumed to continue until the employee returns to work, except as provided herein.
B. After the one hundred fifty day period, when the claimant is receiving temporary compensation and the authorized health care provider reports the claimant has reached maximum medical improvement, the employer's representative shall continue payment of temporary compensation until the Commission finds the employer's representative may terminate compensation unless compensation has been suspended according to R.67-505. When compensation has been suspended according to R.67-505, see section F below.
C. After the one hundred fifty day period, when the claimant is receiving temporary compensation and the authorized health care provider reports the claimant may return to work at the same or other suitable job and such job has been offered by the employer but the claimant refuses to return to work, the employer's representative must continue payment of temporary compensation until the Commission finds the employer's representative may terminate temporary compensation.
D. After the one hundred fifty day period, when the claimant is receiving temporary compensation and the authorized health care provider assigns an impairment rating and reports the claimant is unable to return to work at the same or other suitable job, the employer's representative must continue payment of temporary compensation until the Commission finds the employer's representative may terminate temporary compensation.
E. To request a hearing for permission to terminate temporary compensation, the employer's representative shall file a Form 21 with the Judicial Department.
(1) The employer's representative shall serve a copy of the Form 21 on the claimant according to R.67-211.
(2) The employer's representative shall certify temporary compensation is current or no hearing will be set.
F. After the one hundred fifty day period, when the employer's representative has suspended temporary compensation according to R.67-505, the employer's representative shall request permission to terminate compensation by filing a Form 21 with the Judicial Department.
(1) Serve a copy of the Form 21 on the claimant according to R.67-211.
(2) The Commission may schedule an informal conference to certify a Form 17 when compensation has been suspended according to R.67-505.
67-507, 67-508. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff June 27, 1997.
67-507, 67-508. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff June 27, 1997.
67-509. Medical Treatment While Receiving Temporary Compensation Benefits.
A. The employer's representative chooses an authorized health care provider and pays for authorized treatment.
B. The claimant should contact the employer's representative with questions about medical care and payment.
67-510. Unauthorized Suspension or Termination of Temporary Compensation Benefits.
A. If the employer's representative suspends, terminates, or reduces temporary total or temporary partial compensation benefits without first complying with the procedures in this Article, the claimant may be entitled to additional compensation and penalty as provided in this Chapter and the Act.
B. The claimant may request a hearing as provided in R.67-207 for the relief in section A above.
A. The Commission's file must contain all required forms and medical reports filed according to R.67-1301.
B. In a claim involving a fatality, the claimant must obtain the following items:
(1) The death certificate;
(2) Marriage license, if any;
(3) Divorce decree, if any;
(4) Birth certificates of children, if any; and
(5) A statement of burial expenses.
C. In a claim involving a change of condition, the moving party must attach to the hearing request form a medical report(s) indicating a change in the claimant's condition. The claimant may request an informal conference to determine if the claimant may receive a medical evaluation at the expense of the employer's representative by writing the Commission's Judicial Department. Additional experts reports may be admitted at the hearing according to R.67-612.
D. The documents listed in sections A, B, and C must be filed in the Commission's file before the date set for the hearing.
67-603. Employer's Answer to a Request for Hearing, Time for Filing and Service.
A. The employer's representative shall respond to a Form 50 by preparing a Form 51 and respond to a Form 52 by preparing a Form 53.
B. The employer's attorney shall fully state its position and defenses, if any, replying to each specification in the Form 50 or Form 52 and:
(1) File the Form 51 or Form 53 and a proof of service with the Commission's Judicial Department within thirty days of service of the Form 50 or Form 52; and
(2) Serve the claimant a copy of the Form 51 or Form 53 according to R.67-211.
C. Failure to file a Form 51 or Form 53 within the period in section B(1) shall be deemed a general denial of liability for the benefits claimed and the employer and its representative by the failure to respond within the period in section B(1) shall forfeit each special and affirmative defense allowed by the Act including the defenses available in Sections 42-9-60, , , and of the Act.
D. When under the laws of this State an employer and its insurance carrier, if any, are required to be represented by an attorney in a contested case hearing, its attorney must file a letter of representation with the Judicial Department and provide a copy to the opposing party no later than sixty days from the date of service of the Form 50 or Form 52.
67-604. General Denial to Employer's Request for Hearing.
A. Except when the employer is seeking permission to pay compensation as provided by R.67-208B, each allegation made in a Form 21 is deemed denied.
B. The claimant may, but is not required to, file a response to the Form 21 in writing.
(1) File the response, if any, and proof of service with the Commission's Judicial Department within thirty days of service of the Form 21.
(2) Serve the employer's representative according to R.67-211.
67-605. Second Injury Fund's Answer to a Request for Hearing, Time for Filing and Service.
A. The attorney for the Second Injury Fund shall file and serve a Form 55, Answer of the Second Injury Fund to Employer's Request for Hearing, as provided below.
B. File the Form 55 and proof of service with the Commission's Judicial Department within thirty days of service of the Form 54.
C. Serve the employer according to R.67-211.
D. Failure to file a Form 55 within the period in section B above shall be deemed a general denial of liability for the benefits claimed and the Second Injury Fund by the failure to respond within the period allowed in Section B shall forfeit each special and affirmative defense allowed by the Act.
A. The Commission may issue an order assessing a fine of up to one hundred dollars against a party who properly served a hearing notice fails to appear at a scheduled hearing.
B. The party has the right to review and appeal as in other cases.
A. A claimant may withdraw a Form 50 or Form 52 once as a matter of right with leave to renew.
(1) A Form 50 or Form 52 may be withdrawn by writing the Commission's Judicial Department, if a hearing notice has not been issued, or, the Commissioner's office identified on the hearing notice.
(2) When a Form 50 or Form 52 is withdrawn, a notice removing the case from the docket will be filed in the Commission's record and a copy mailed to the parties in R.67-210.
B. The notice is without prejudice to the claimant's right to proceed with his or her claim.
(1) If the nature of the claim and the relief requested does not change, write the Judicial Department requesting the Form 50 or Form 52 be reset for hearing.
(2) If the nature of the claim or relief requested changes, file according to R.67-207, a new Form 50 or Form 52 with the word "Amended" printed or typed boldly on the top of the form.
C. Withdrawing a Form 50 or Form 52 the second time without good cause may operate as a voluntary dismissal of the claim when the form is withdrawn by a claimant who has once withdrawn a Form 50 or Form 52 based on the same set of facts, and, in the opinion of the Commissioner, the form is withdrawn merely for the purpose of delay.
D. Withdrawing a Form 15 request for hearing waives the sixty day hearing requirement. If the jurisdictional commissioner is unable to reschedule the case, the file will be returned to the Judicial Department to be reassigned.
67-610. Continuing Obligation to Update, Request for Hearing, and Answer.
A. After a Request for Hearing and Answer are filed with the Commission, an "Amended" form must be filed to indicate a change in the nature of the claim, relief requested, or another defense.
B. A party may amend a form once as a matter of course at any time before or within thirty days after it is served. Otherwise a party may amend a form no later than ten days prior to the hearing and only by leave of the Commissioner or by written consent of the adverse party.
(1) A party shall file and serve an amended form and move at the hearing to go forward on the issue(s), as amended. Type or print boldly across the top of the form the word "Amended".
(2) Leave shall be freely given when justice so requires and does not prejudice any other party.
(3) A party shall plead in response to an amended form within the time remaining for response to the original form or within ten days after service of the amended form, whichever period may be longer, unless the Commission otherwise orders.
(4) Attorneys for the parties shall serve the opposing party according to R.67-211.
(5) If the claimant is not represented by an attorney, the Commission will serve the employer's representative or attorney.
C. An amended form must be timely filed and served. The Commissioner will determine at the hearing whether to allow a party to rely on new facts or defenses.
A. A claimant who is representing himself or herself is not required to file a Form 58, Pre-hearing Brief.
(1) If the claimant elects to file a Form 58, mail the Form 58 to the Commissioner's office identified on the hearing notice.
(2) The Commissioner's office will send a copy of the Form 58 to the employer's attorney.
B. Each attorney representing a party at a hearing shall file and serve a Form 58 according to the following:
(1) File a Form 58 and proof of service at least ten days before the hearing with the Hearing Commissioner's office identified on the hearing notice. Complete the Form 58 and give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements including video recordings and/or transcribed audio recordings have been taken from one of the witnesses including the claimant and indicate who has possession of same. A party is under a duty to promptly supplement a response with respect to any question directly addressed on the form and amend a response if the party obtains information upon the basis of which the party knows the response was incorrect when made, or the party knows the response thought correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(2) Serve the opposing party according to R.67-211.
C. The Form 58 shall remain in the Commission's file but shall not constitute evidence or become part of the record of the hearing.
D. If an attorney fails to file and serve a Form 58, the Commissioner may postpone the hearing according to R.67-613 or assess against an attorney by written order a fine of up to one hundred dollars.
A. This regulation does not apply to the Form 14A filed according to R. 67-1301, nor shall this regulation be construed to limit a party's right to call a witness (lay or expert) or present evidence (lay or expert) in the form of a deposition.
B. A written expert's report to be admitted as evidence at the hearing must be provided to the opposing party as follows:
(1) The moving party must provide the report to the opposing party at least fifteen days before the scheduled hearing.
(2) The non-moving party must provide to the moving party any report not provided by the moving party at least ten days before the scheduled hearing.
(3) Where both parties file hearing requests the first party to file shall be considered the moving party.
(4) The carrier shall be deemed the moving party in all hearings scheduled pursuant to a request under R. 67-504C.
C. Proof of notice as required under this section shall be filed with the Commission at the time such reports are provided to a party.
D. Any report submitted to the opposing party in accord with B(1) or B(2) above shall be submitted as an APA exhibit at the hearing unless withdrawn with the consent of the other party, and the non-moving party shall submit only reports not submitted by the moving party. The actual report shall not be filed with the Commission prior to the hearing.
E. Failure to provide reports and notices as required under this section may result in the exclusion of such reports from the evidence of the case. This paragraph shall not be construed to limit the discretionary authority of a Hearing Commissioner to accept reports, depositions or other evidence at the conclusion of the scheduled hearing pursuant to subsection J below.
F. If the parties consent to the admission of a report, then the Hearing Commissioner shall receive such report into evidence without regard as to whether the parties have complied with this section.
G. The following rules in this subsection shall govern the format in which Administrative Procedures Act (APA) exhibits are submitted into evidence. Each APA or set of APA's shall have:
(1) An index sheet listing the APA number, name of the provider, dates of service and number of pages in the APA, with the records from each medical provider identified in groups, as APA #1, APA #2; etc. The reports of each expert shall be arranged in either chronological or reverse chronological order.
(2) A consecutive number beginning with the first page of APA #1 and continuing through the final page of the last APA submitted.
H. Counsel for all other parties appearing at the hearing shall be given the opportunity to review the APA exhibits as prepared in accordance with this regulation and to supplement the record with any properly noticed APA exhibits which may have been omitted from the Claimant's and Defendants' single sets.
I. By complying with this regulation, the parties do not waive any evidentiary objections to the introduction of a particular exhibit. Such objections may include, but are not limited to relevancy, materiality, qualification of the expert, timeliness, privilege, hearsay or authenticity as may relate to the document in controversy.
J. All available evidence and testimony shall be presented at the scheduled hearing or a party must move for an adjournment according to R.67-613.
(1) The Commissioner may adjourn the hearing, and testimony of a necessary witness unable to appear at the scheduled hearing may be presented by deposition or at a hearing reconvened at a later date.
(2) The Commissioner may order the party moving for adjournment to take the de bene esse deposition of the expert. The Commissioner may order the party moving for adjournment to pay hearing costs if it is necessary to reconvene.
67-613. Postponement or Adjournment of the Scheduled Hearing.
A. Each party shall arrange and present all evidence at the hearing. Testimony of a necessary witness unable to appear at the hearing may be presented by deposition.
B. A commissioner may postpone a hearing for good cause.
(1) Good cause includes but is not limited to:
(a) The attorney is actually engaged in another court;
(b) Illness;
(c) Additional discovery is necessary;
(d) A conflict of interest exists requiring another Commissioner hear the case;
(e) It is premature to hear the case.
(2) To request a postponement, file and serve a motion pursuant to R.67-215 at least ten days before the hearing. If the moving party can show emergency or other circumstance beyond its control, the motion may be filed and served as soon as reasonably possible before the hearing.
(3) If the moving party postpones a hearing set pursuant to Section , the requirement to hold the hearing within sixty days is waived. The hearing will be postponed only until the following month. If the commissioner cannot hear the case by the following month, the case will be returned to the Judicial Department for reassignment.
(4) All hearings other than those set pursuant to Section are postponed only until the following month. If the commissioner cannot hear the case the following month, the hearing will not be reset until the moving party files a written request with the Judicial Department. If the nature of the claim or the relief requested changes, file a new hearing request according to R.67-207 unless R.67-610 applies.
C. A party may move for adjournment at a hearing under the following circumstances:
(1) To procure additional evidence when the evidence is in existence, identified, and necessary for the decision, but unavailable at the hearing.
(2) When a witness fails to appear.
(a) If the witness has been properly subpoenaed, produce a copy of the Form 27 and proof of service. The Commission may allow the testimony to be made part of the record by de bene esse deposition or by testimony at a reconvened hearing.
(b) If the witness has not been properly subpoenaed, the moving party shall provide a reasonable basis for failure to subpoena the witness. The testimony may be allowed at the Commissioner's discretion.
A. A Commissioner may issue an order assessing the actual cost of a hearing as established by the Commission if the Commissioner determines that the hearing has been brought, prosecuted, or defended on unreasonable grounds.
B. The party assessed has the right to review and appeal as in other cases.
A. A person may request in writing to the Commissioner's office all or a portion of a transcript of a hearing.
B. A request for a portion of a transcript shall be limited to the entire testimony of a particular witness, the opening or closing statement.
C. The hearing reporter shall transcribe and deliver the request as soon as reasonably possible.
D. The cost will be at the prevailing rate established by the Commission and the responsibility of the party ordering the transcript. Bills shall be paid within thirty days of the receipt of the transcript, and failure to do so shall result in the party's inability to obtain additional transcripts or copies until the account is current.
ARTICLE 7.
REVIEW AND HEARING
67-701. Requesting Commission Review of the Hearing Commissioner's Decision.
A. Either party or both may request Commission review of the Hearing Commissioner's decision by filing the original and eight copies of a Form 30, Request for Commission Review, with the Commission's Judicial Department within fourteen days of the day the Commissioner's order is received. The fourteen day period is jurisdictional. The Commission will not accept for filing a Form 30 that is not postmarked or delivered to the Commission by the fourteenth day from the date of receipt of the Hearing Commissioner's order.
(1) The party requesting review is the appellant. The opposing party is the respondent. Place the proper designation after the names of the parties on the form.
(2) The W.C.C. file number assigned to the case is retained and must be on the Form 30.
(3) The grounds for appeal must be set out in detail on the Form 30 in the form of questions presented.
(a) Each question presented must be concise and concern one finding of fact, conclusion of law, or other proposition the appellant believes is in error.
(b) to evidence must be by title and exhibit number.
(4) To request oral argument, mark the space provided on the Form 30.
(a) If the space provided on the Form 30 requesting oral argument is not marked, oral argument is waived. The Commission will review the Commissioner's decision on the record without oral argument.
(b) If the appellant does not request oral argument, the respondent may request oral argument by writing the Judicial Department. A copy of the letter requesting oral argument must be sent to all opposing parties pursuant to R.67-211.
(c) If respondent requests oral argument, both parties may present oral argument.
(5) File the Form 30 and proof of service with the Judicial Department. Serve the opposing party pursuant to R.67-211.
(a) The Judicial Department will not set a Form 30 for review until proof of service is filed.
(b) Failure to file proof of service will result in receipt of a notice administratively dismissing the Form 30.
(c) An administrative dismissal does not bar review if the Form 30 has been timely filed. When service is completed, write the Judicial Department requesting the Form 30 be set for review.
B. If the claimant appeals and is representing himself or herself, the Judicial Department will prepare the additional copies of the Form 30 and serve the Form 30 on the opposing party.
A. The appellant shall attach to the Form 30 the filing fee required by the Act.
B. If a party is representing himself or herself and is unable to pay the filing fee, the party must file the Form 30 within fourteen days of receipt of the Commission's order. The party may file a Form 32, Request to Waive Appeal Filing Fee, with the Form 30.
(1) The Commission's Chair reviews the Form 32.
(2) If the filing fee is not waived, the appellant must pay the filing fee within ten days of the date of receipt of a notice denying waiver of the filing fee.
A. At the conclusion of the review if the Commission determines that the appeal was without merit, it may charge, in its sole discretion, the appealing party an additional fee not to exceed two hundred fifty dollars.
B. The person charged the additional fee has the right to appeal as in other cases.
A. The Commission serves the parties in R.67-210 a Form 31, Notice of Review, at least thirty days before the date of review hearing.
(1) The Form 31 states the date, place, time, purpose of the review hearing, and the filing date for the appellant's brief.
(2) The appellant's brief must be filed with the Commission according to R.67-205 and R.67-705 on or before the date stated on the Form 31.
B. The Commission's Judicial Department will set several "standby" cases for review each month, issue a Form 31 as in A above, and notify the parties to appear for oral argument if the case is reached on the review hearing docket.
C. The Judicial Department will set cases for review on the record without oral argument and issue a Form 31 as in A above.
D. The appellant in B and C above must file his or her brief according to R.67-205 and R.67-705 on or before the date stated on the Form 31.
A. On each case appealed to the Commission for review, the appellant shall file a brief that includes a statement of the case, questions presented, argument, and conclusion.
B. The appellant shall file the brief and proof of service on the opposing party with the Commission's Judicial Department according to R.67-205 on or before the date on the Form 31.
C. The respondent may file a brief and proof of service on the opposing party with the Judicial Department within fifteen days of service of the appellant's brief.
D. The appellant may file a reply brief and proof of service with the Judicial Department within ten days of service of the respondent's brief.
E. No further briefs are permitted unless requested by the Commission.
F. The original and three copies of the brief must be filed when a three member Commission panel reviews the case as indicated on the review hearing notice. The original and six copies of the brief must be filed when a six member Commission panel reviews the case as indicated on the review hearing notice.
G. Serve the briefs pursuant to R.67-211. If the claimant is representing himself or herself, the Judicial Department prepares the additional copies of the brief and serves the brief on the opposing party.
H. With the consent of the opposing party, the time for filing a brief may be extended if a letter acknowledging the agreement is filed with the Commission on or before the original filing date.
(1) All briefs must be filed at least five days before the scheduled date for review. The Commission will exclude from consideration a brief filed later than five days before the scheduled review.
(2) The party extending the time for filing a brief shall file with the Judicial Department a copy of the agreement. The agreement must state the date the brief is due.
(3) If the appellant fails to file a brief within ten days of receipt of the Form 31, the Judicial Department may remove the case from the review hearing docket by issuing an administrative order dismissing the appeal.
(4) An appeal administratively dismissed by the Judicial Department may be reinstated for a good cause upon motion to the Commission.
(a) A motion to reinstate the appeal must be filed with the Commission and served on all parties no later than thirty days from the date of service of the administrative order dismissing the appeal.
(b) The motion will be heard by the Full Commission without oral argument or appearance of the party.
(c) If the case is reinstated, the Commission may impose against the appellant costs up to two hundred fifty dollars.
A. Each party is permitted ten minutes for oral argument. The appellant is permitted three minutes for reply.
B. If both parties have appealed, each party is permitted ten minutes for oral argument, and each party is permitted three minutes for reply.
C. A party may request additional time for argument by attaching a motion to the Form 30. The Commission will issue an order before the case is set for argument.
A. When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.
B. When a party seeks to introduce new evidence into the record on a case on review, the party shall file a motion and affidavit with the Commission's Judicial Department.
C. The moving party must establish the new evidence is of the same nature and character required for granting a new trial and show:
(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing; and
(2) The evidence was not known to the moving party at the time of the first hearing, by reasonable diligence the new evidence could not have been secured, and the discovery of the new evidence is being brought to the attention of the Commission immediately upon its discovery.
(a) File the motion and affidavit with proof of service as soon as the new evidence is discovered. The motion and affidavit may be filed with the Form 30.
(b) Serve the opposing party pursuant to R.67-215.
(c) Oral argument will not be heard on the motion. The Commission will act upon the motion and issue an order before the review hearing is held.
(d) If the Commission grants the motion, the review hearing is stayed. The case will be remanded to the original Hearing Commissioner who may, unless otherwise provided, reconvene the hearing or admit the deposition of a witness into the record.
(e) The original Hearing Commissioner will issue his or her findings and recommendations in the form of an order to the Commission and the parties.
(f) Upon the receipt of the Commissioner's order, the Judicial Department will reset the case on the review hearing docket.
(g) If the Commission denies the motion, the case may remain on the review hearing docket unless otherwise provided.
A. A review hearing may be postponed for the reasons in R.67-613.
B. Either party may contact the Commission's Judicial Department to request postponement. A case may be postponed administratively.
C. When the appellant has caused postponement of a review hearing two times, the appellant's request for oral argument is deemed waived. The case may be reviewed on the record.
A. Commission review may be conducted by a three or six member review panel either of which excludes the original Hearing Commissioner. An order of a three member review panel has the same force and effect as a six member review panel and is the final decision of the Commission.
B. The Commission's Chair with the unanimous approval of the other Commissioners may assign cases to a three member panel according to the following subsections:
(1) When a Form 30 is filed, the Hearing Commissioner is notified. If the Hearing Commissioner determines the review involves a novel issue of law or fact, the Hearing Commissioner may request the Commission's Chair set the case for review by a six member review panel.
(2) If the Hearing Commissioner does not request a six member review, the Commission's Chair may assign the review to a three member panel.
(3) The Commission's Chair may appoint by random selection two review panels and exclude, on a rotating basis, one Commissioner from the panels each month. The Commission's Chair may assign a case for review as in B(2) above to a three member panel that excludes the original Hearing Commissioner.
C. The Commissioners reviewing the case may confer and shall vote within ten days of the date of review. The original Hearing Commissioner's decision is neither a vote, nor shall it be considered as a vote, of the Commission's final decision.
D. To reverse the Hearing Commissioner's decision requires a majority decision of the Commissioners reviewing the case.
(1) A majority of a three member panel consists of two votes to reverse.
(2) A majority of a six member panel consists four votes to reverse.
(3) If one Commissioner is temporarily incapacitated or a vacancy exists on the Commission, review may be conducted by the remaining Commissioners sitting as a five or three member panel.
(a) The Hearing Commissioner may request review of the case as in B(1) above, and a panel of five may review the case. A majority consists of four votes to reverse.
(b) If the Hearing Commissioner does not request review as in B(2) above, the Commission's Chair may assign the review to a three member panel. A majority consists of two votes to reverse.
E. A Hearing Commissioner's finding of fact or conclusion of law subject to review by the Commission may be modified by the entry of the review panel's order making a new finding of fact, conclusion of law, or modifying the Hearing Commissioner's finding of fact or conclusion of law.
(1) On review, a vote to affirm and modify is deemed a vote to affirm, or a vote to reverse and modify is deemed a vote to reverse.
(2) The Commissioners, together, shall agree on a modification if any and record their findings of fact and conclusions of law on a vote sheet.
(3) If the case is reviewed by a three member panel and the panel cannot agree on modifying the Hearing Commissioner's decision, the Commissioners on the three member panel may request the remaining Commissioners, excluding the Hearing Commissioner, review the case and the issue in dispute as follows:
(a) The panel may certify an issue for review to the remaining Commissioners, excluding the Hearing Commissioner, by completing a vote sheet and phrasing the issue in dispute in the form of a question.
(b) The Commission's Judicial Department will notify the parties of the question presented to the remaining Commissioners and the parties may file briefs according to R.67-705 on or before the date stated on the notice. Oral argument is not permitted.
(c) The remaining Commissioners shall consider the question presented, briefs if any, and register their decision on the vote sheet within thirty days of the date of notice to the parties.
(d) The panel members shall issue an order thirty days from the date the remaining Commissioners register their decision.
(4) The Commission sitting as a five or six member review panel shall register a vote in accordance with section C above. The Commission sitting as a five or six member panel may remand a case to the Hearing Commissioner only for taking additional or newly discovered evidence or for exceptional circumstances set forth in its order.
F. If a Commissioner fails to register a vote within the periods referred to above, the Commissioner is deemed to have registered a vote affirming the Hearing Commissioner and may not vote otherwise.
A. If the parties settle a claim after filing a Form 30, the appellant shall immediately notify the Commission's Judicial Department in writing.
B. The Judicial Department will remove the case from the review hearing docket or notify the Commission an order is not required.
C. When the terms of the settlement, as in Article 8, are filed with the Commission, an administrative order will be issued dismissing the appeal upon consent of the parties.
A. After the claimant reaches maximum medical improvement the parties may agree to settle the claim by signing a Form 16, Agreement for Permanent Disability/Disfigurement Compensation, or by signing an Agreement and Final Release (clincher).
B. If the claimant is represented by an attorney, an appearance before a Commissioner is not required for approval of a settlement unless either party requests an informal conference or the Commissioner schedules a hearing.
C. If the claimant is not represented by an attorney, the parties must appear before the Commissioner assigned to the claim at an informal conference for approval of the settlement. At the informal conference, the Commissioner will review the proposed settlement and may approve it if the Commissioner finds the settlement fairly made and in accordance with the provisions of the Act.
D. A Form 16 retains the claimant's right to request a hearing for additional benefits not later than one year from the date of the last compensation payment. By signing the Form 16, the employer's representative does not agree it will make any additional payments in the future. The claimant may request a hearing according to R.67-207 for additional benefits.
E. An Agreement and Final Release (clincher) relieves the employer and its representative from any further responsibility for payment of compensation or medical expenses, unless the Agreement and Final Release specifically provides otherwise. When the claimant signs the Agreement and Final Release and it is approved, the claimant does not have the right to ask for additional payments in the future even if the claimant's medical condition worsens, unless otherwise specifically provided in the document.
A. If parties agree to the terms of a Form 16, the employer's representative completes a Form 16 by recording the claimant's compensation rate, the percentage of disability agreed upon, disfigurement, if any, and the number of weeks of compensation the claimant will receive. The form may be approved as follows:
(1) If the claimant is not represented by an attorney, the Form 16 must be approved at an informal conference.
(a) The employer's representative must request an informal conference by filing an updated Form 18, showing the status of payment of temporary compensation, if any, and medical expenses with the Commission's Judicial Department. The claimant may request an informal conference by writing to the Judicial Department.
(b) If the parties reach an agreement at the informal conference which the Commissioner approves, or the claims mediator recommends, the parties sign the agreement. (A Commissioner must approve a claims mediator's recommendation before the settlement is recorded as binding.)
(c) If the parties do not reach an agreement with which the Commissioner approves the Commission will set a hearing according to R.67-804I.
(2) If the claimant is represented by an attorney, the claimant, his or her attorney, and the employer's representative sign the Form 16. The Form 16 may then be filed with the Commission for approval withou
