The 38th Annual SCWCEA Conference Wrap-up, including the importance of file review during the first 150 days of a claim
By Bob Horner
The Sowell Gray Stepp and Laffitte workers’ compensation team recently attended the South Carolina Workers’ Compensation Educational Association (SCWCEA) 38th Annual Educational Conference in Hilton Head, South Carolina. The Annual Conference is designed to educate those who are involved in workers’ compensation claims in the state, including attorneys, employers, and claims’ adjusters. The SCWCC Commissioners attend the meetings, volunteering their time and wisdom to discuss issues relevant to all of the parties involved in the workers’ compensation process. From roundtable question and answer sessions, to discussions of particular cases and the outcomes in those cases, the Commissioners provide valuable information to everyone involved.
In addition to hearing from Commissioners, medical care providers also attend and speak on a variety of subjects. This year, Dr. Charles Kanos, Surgical Director of Southeastern Neurosurgical Spine Institute, spoke on issues of medical technology. Dr. Coleman Fowble narrated a knee replacement surgery for the attendees. Both brain injuries and neuropsychology evaluations were discussed. Commissioner Scott Beck and other staff members from the SCWCC discussed the technological advances coming to the Commission, including online filing of documents. Finally, Frank Abagnale, the inspiration for the movie “Catch Me if You Can,” spoke on the final day.
Additional speakers at the Annual Conference include lawyers from various firms throughout the state, representing both claimants and employers/carriers. This year, Grady Beard, a member of Sowell Gray Stepp & Laffitte, and newly elected to the Board of Directors of SCWCEA, was asked to discuss recent updates to South Carolina law in the area of workers’ compensation. While Beard submitted written materials on three of the more important cases from 2013, he focused his lecture on Jervey v. Martint Environmental, Inc., 406 S.C. 210, 750 S.E.2d 90 (2013).
The Jervey opinion itself is short. Its importance, however, cannot be understood without analyzing the Court of Appeals’ opinion in Jervey v. Martint Environmental, Inc., 396 S.C. 442, 721 S.E.2d 469 (Ct. App. 2012), vacated in part, 406 S.C. 210, 750 S.E.2d 90 (2013).
The crux of the Jervey opinion that is relevant to employers and carriers today is whether an employer can still deny a claim after 150 days of accepting the claim. In the Jervey case, the claimant attempted to argue that the 150 day time limit under South Carolina Code section 42–9–260, operated as a statute of limitations as to an employer/carrier who wished to deny a previously-admitted claim after 150 days had passed. While section 42-9-260 requires a hearing before ceasing benefits if more than 150 days has passed, there is nothing about this Code section on its face that precludes an employer from subsequently denying a claim.
In the Court of Appeals’ opinion, the court disagreed with the claimant’s position that the Code section acted as a statute of limitations. The court, in reaching this opinion, relied up on the statute itself, as well as Fredrick v. Wellman, Inc., 385 S.C. 8, 682 S.E.2d 516 (Ct. App. 2009). Fredrick held section 42–9–260(F) permits an employer to terminate benefits for any cause after the expiration of 150 days, and therefore the section did not prohibit the employer from raising its defenses after 150 days.
The Court of Appeals ultimately went on to affirm the case in favor of the claimant under the doctrine of laches and waiver. The court held that the delay of 450+ days in Jervey was unreasonable given that the employer knew of its main defense from the start, but failed to raise it. The court noted that the doctrines of laches and waiver prohibited all compensability defenses.
The Supreme Court reviewed the Court of Appeals’ decision in Jervey. The Supreme Court held that since the doctrine of waiver and laches prohibited the employer from raising any compensability defenses, the Court of Appeals erred in addressing the statute of limitations argument and therefore vacated that section of the opinion. This is not uncommon for the Supreme Court to do in cases where an argument is addressed but is not necessary to the outcome.
Although that portion of Jervey was vacated, one should not assume from the opinion that the section 42–9–260(F) now acts as a statute of limitations that prevents the denying of a claim after 150 days, as the Court of Appeals opinion in Frederick has not been overruled and remains the law of the state on this issue. Attorney Beard, however, emphasized that the Jervey opinion should serve as a “warning” to attorneys and employers/adjusters that they should review their cases often and assert their defenses as soon as they are discovered, especially as admitted cases near the 150 day mark.