A Workers’ Compensation News and Information Resource State Accident Fund | Volume 14, Issue 2 | Summer 2010 | www.saf.sc.gov
Legislative Update Peter P. Leventis, IV McKay, Cauthen, Settana & Stubley, P.A. The 118th session (2009-2010) of the S.C. General Assembly has come to a close. Barring a special session, state legislators are done introducing bills and passing new laws until the start of next year. The most recent major overhaul of the S.C. Workers’ Compensation Act became effective July 1, 2007. Due to the time required in the appeals process, many of these changes have not yet been interpreted by the courts. State lawmakers are unlikely to show much interest further tinkering with the provisions of the Act until such time. Nonetheless, some workers’ compensation related legislation was introduced at the statehouse this past session. There were about eleven bills up for consideration between the House and Senate dealing primarily with workers’ compensation, but only one that passed. Senate Bill No. 362 was ratified amending S.C. Code Ann. §42-11-30. (“Presumptions; Heart or Respiratory Disease as to Firefighters; Cardiac-Related Incident as to Law Enforcement Officers”). This updated provision provides for a presumption of compensability and work related injury for firefighters and law enforcement that meet the qualifications of, being under thirty seven years of age, and having completed and passed a qualifying physical examination – with a filed
written report of that examination – prior to the date of accident, and prior to July 1, 2012. This is not a major change to the previous §42-11-30 Code Section, it adds the inclusion of the July 1, 2012 cutoff date, and permits certain law enforcement officers, who previously would not have been entitled to this presumption, to undergo additional testing at their own expense which may entitle these officers to the statutory presumption, depending on the outcome of the further testing. While several other measures introduced did not become law this past session, it is worth noting the subject matter presented, as similar bills are sure to be introduced in the 119th session beginning in January 2011. Just as “owner-operator” truck drivers, under a valid independent contractor agreement, were previously added to the list of statutorily excluded persons from the Workers’ Compensation Act (§42-1-360), other industries are trying to obtain comparable treatment. (See Senate Bill No. 59 adding taxi drivers who lease cabs as additional exemptions from the Act under proposed Code Section 42-1-376). A number of related bills were proposed to change the definition of an “employee” under the Act to exclude illegal immigrants from being covered employees.
However, most of these bills included the caveat that illegal immigrants would fall under the provisions of the Act as long as the employer was not aware of the person’s illegal status prior to the date of the accident. (See Senate Bill No. 306, and House Bill No. 3948). This type of bill, if passed, would have also overturned the ruling of the S.C. Supreme Court in Curiel v. Environmental Management Services, 376 S.C. 23, 655 S.E.2d 482 (2007) as to the compensability of claims by illegal immigrants injured while employed in this state. Senate Bill No. 225 was introduced for the creation of an emergency air wing division through the office of the Adjutant General, and for the inclusion of that air wing under the worker s’ compensation coverage of the State, pursuant to proposed amendments to §42-7-50. More than one bill was introduced regarding regulation of workers’ compensation insurance rates, and requiring insurers in this state to use the most recently approved lost cost data when calculating and determining rates. (See, for example, Senate Bill No. 951). It has been a very ruckus session for South Carolina politics, legislation and budgets in general, though the field of workers’ compensation itself saw few legislative changes. This past session (Continued on page 2)
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SAFE Mail, Volume 14, Issue 2 Summer 2010