By Andy Brack

Business interests quietly are starting to push for new changes to the state’s workers’ compensation laws, but it’s not clear yet they’re needed.

When the S.C. Industrial Commission was created in 1935, the state took the responsibility “to compensate employees for the economic consequences of work-related injury, illness and disease without regard to fault,” according to the Web site of the succeeding agency, the S.C. Workers’ Compensation Commission.

But the state Chamber of Commerce is pushing for five “reforms,” two of which appear to be against the interest of workers, the people who commissioners are supposed to protect.

“The whole plan of the workers’ compensation system was that in exchange for not being able to file tort claims against your employer, you would be able to have a no-fault system you could use when you got hurt on the job, regardless of why or how,” says John Ruoff, research director of S.C. Fair Share. “Employers are increasingly trying to change it for a system you can barely collect on under any circumstances.”

The chamber says employers’ workers’ comp insurance rates are “out of control” for a number of reasons, including lack of competition among insurance providers. The business group suggests a way to reform the current system to cut its costs would be to change the process to allow state administrative judges to hear appeals, which would reduce backlogs and free up time for workers’ comp commissioners.

Another idea is for the commission to adopt an alternative system to allow mediations for easier cases, which would cut costs and case loads. The chamber also supports abolishing the decades-old Second Injury Fund, a state fund that reimburses insurance companies and self-insured employers. The group claims the fund is outdated and raises costs.

While those ideas may have some merit, two others are of concern. First, the chamber backs adding a rule to allow employers to talk with an injured employee’s health care provider without the employee knowing, ostensibly to check out the readiness of injured workers to return to work. A state court ruling in Brown v. Bi-Lo that has the chamber in a sweat essentially says employers have the rights to look at medical records, but can’t have unofficial “ex parte” conversations without the worker being involved.

Rep. Greg Dellaney, R-Chester, a lawyer who represents injured workers, says allowing such communications would hurt workers.

“Insurance carriers and the defendant (company) already get to choose the plaintiff’s doctor and have to authorize all treatment,” says Dellaney, who opposes changes to the current law. “If you abolish Brown v. Bi-Lo…it would be undue influence on the doctor because these are the people who chose him and who pay his bills.”

Another chamber priority would put more burdens on injured workers. The group seeks to reverse another court decision, which essentially said workers didn’t have to have expert testimony to describe how their injuries affect their work. Chamber officials believe relying on a worker’s claims of injuries, instead of having an expert opinion, leads to more costly treatments than often needed.

But Dellaney points out that in 95% of workers’ comp cases, injured workers don’t have lawyers. By requiring expert medical testimony, more of a burden is put on the injured worker. Additionally, the chamber’s position defies the logic of other proposed reforms. By adding another layer to the process, there will be increases in time and cost, both of which other proposed changes seek to curb.

The other thing that doesn’t make sense about the proposal is that defendant businesses currently aren’t prohibited from using medical experts to refute whatever a worker would say.

“They’re trying to limit you to their witnesses,” Dellaney says.

The House Labor, Commerce and Industry Committee currently is considering workers’ comp changes in subcommittee. More than likely, the House will approve many, if not all, of the changes sought by the chamber.

But when a bill gets to the Senate, it might not be so easy.

“I am not of the mind to dismantle the workers’ comp system,” says Senate President Pro Tempore Glenn McConnell, R-Charleston. “[But] if there are some improvements to be made, we’ll look at them.”

Andy Brack publishes the South Carolina Statehouse Report (www.statehousereport.com), a business forecast of developments in the South Carolina Legislature and state government. He can be reached at brack@statehousereport.com.

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