Earlier this week the South Carolina Supreme Court affirmed the Court of Appeals decision in Tucker v. S.C. Dept. of Transportation, Opinion No. 27906 (July 24, 2019). Filing a Form 50, Notice of Claim, within the year after the last payment of compensation will preserve the Claimant’s right to assert a change of condition. The Claimant does not have to request a hearing within the one-year timeframe. The Court also charged the Commission with monitoring claims after a Form 50 claim is filed to ensure a hearing is scheduled to quickly address the change of condition.
Under §42-17-90, an interested party may file a motion or application with the Commission to review an award ending, diminishing, or increasing the compensation previously awarded. That party must prove, by the preponderance of the evidence, that there has been a change of condition caused by the original injury after the last payment of compensation. This is generally the date listed on the Form 19. This review must not be made after 12 months from the date of the last payment of compensation pursuant to an award provided under the Workers’ Compensation Act. The Form 16A specifically states, “a claim for additional compensation based on a worsening of the Claimant’s condition must be filed no later than one year from the date of the last payment of compensation. “
In Tucker, the Claimant filed a Form 50 Notice of Claim alleging a change of condition for the worse on January 6, 2009. This filing occurred within one year from the date of the last payment of compensation. Over two years later, the Claimant filed a Form 50 Hearing Request seeking a determination regarding the change of condition. The Single Commissioner and the Full Commission held that not requesting a hearing within a year of the last date of payment of compensation is in violation of the statute and denied the claim. The Court of Appeals reversed, finding the Form 50 Notice of Claim tolled the statute of limitations required by §42-17-90. The Supreme Court agreed.
This ruling may result in additional exposure if a claim resolved on a 16A is not closely monitored. I recommend immediately sending the Form 50 to an attorney. If the Claimant fails to file for a hearing request, the Defendants should send a letter to the Commission requesting a hearing pursuant to Tucker v. S.C. Dept. of Transportation.
There are broader implications to the decision, however, than change of condition claims. The Supreme Court spoke broadly of the Commission’s duty to promptly resolve claims. The Tucker decision may offer an avenue for a Carrier to demand a hearing on a claim only Form 50 in a denied case. The Supreme Court directed the Commission to amend the regulations governing the setting of a hearing. One easy way to implement the Court’s mandate is to allow any Employer or Carrier to request a hearing in any pending case by adding a hearing request option to a Form 51 Employer’s Response to Hearing Request.
This case will now allow a Carrier to push a pending denied claim to a hearing. If neither party requests a hearing in a denied claim, the opinion now allows, or requires, the Commission to monitor Form 50 Notice of Claims and set hearings without a request by either party (sua sponte). The Commission is charged to ensure efficient and quick resolution of claims. We anticipate the Commission to address any changes in their Form 50 procedures at the August 2019 Full Commission judicial meeting. Check back with us for updated information.