When you’ve been in the workers compensation industry for almost 40 years, you see a lot of changes. A few decades ago, workers’ compensation was a gold mine for claimants’ attorneys. The joke then was that, to win, all a claimants’ attorney had to do was show up at the hearing with a client. And if the claim was catastrophic, the carrier could almost always find a pre-existing condition that qualified for reimbursement from the Second Injury Fund (SIF), so the defense attorney was always on the lookout for that magic word “arthritis” in claimants’ medical records. It was, indeed, a different time and a different mindset. I remember a speaker at one of the SCWCEA conferences quipping that being a workers’ compensation defense attorney was the “world’s most perfect job.” He asked, “Where else can you lose 97% of your cases and still be a hero?”
The pendulum was out about as far to the left as it could go. The Supreme Court even held that, to prove an employer/employee relationship, a claimant need only prove one of the four factors of control, method of payment, right to fire, and furnishing equipment. Dawkins v. Jordan, 341 S.C. 434, 534 S.E.2d 700 (2000). It was a claimant’s workers’ compensation world. But it didn’t last. Assessments from the SIF against carriers and self-insurer funds who provided the money for the SIF grew and became astronomical. Carriers began to complain. At the same time, the government was interested in growing the economy by engaging in major campaigns to attract new industry. High SIF assessments were bad for insurance companies, and perceived high premiums were bad for industries. Something had to be done. The general assembly began to act and the pendulum began swinging back to the right.
The general assembly passed two major acts, one in 1996 and the other in 2007, amending the system. The SIF was eliminated; repetitive trauma and stress claims were limited; and carriers could now contest 50% to the back, automatically resulting in permanent, total disability. The courts followed suit in a line of cases holding the claimant’s burden of proving a causal connection between the injury and the employment required a showing that something in the workplace physically caused the injury. Additionally, the Supreme Court overruled Dawkins and returned to previous case law in which the commission had to consider all four factors, not just one. The Commission’s awards became more closely aligned with the AMA Guide impairment ratings. The pendulum swung back to the right. Life had become less bountiful for claimants’ attorneys and defense lawyers were now expected to win more often than not. But it is the nature of a pendulum to move…from left to right and right to left.
Three recent decisions by the Supreme Court suggest the pendulum has again reached its apex and is coming back to the left. Nicholson v. S.C. Department of Social Services, Op. No. 27478 (S.C. Sup. Ct. filed Jan. 14, 2015) and Barnes v. Charter 1 Realty, Op. No. 27479 (S.C. Sup. Ct. filed January 14, 2015) reinterpreted the requirement that the claimant has the burden of proving a causal connection between the injury and the employment. Workers’ compensation is a no fault system. It is enough that a claimant was about the duties of the job when the accident occurred. He/she does not have to prove something about the job that actually caused the accident. This significantly eases the burden for claimants and takes us back to “the injury itself can be the accident” approach of previous decades. The defense of “no causation” may be abrogated.
Last month, the Court reversed Lewis v. L.B. Dynasty, d/b/a Boom Boom Room Studio 54, Opinion 27509, S.C. Supreme Court, March 18, 2015, in which the Court of Appeals had held an exotic dancer was an independent contractor and not an employee of a night club. The Supreme Court disagreed. The Court did not write any new law. Rather, it examined and assessed the facts in a light more favorable to the claimant. Readers are left with the impression that, henceforth, the law will be more liberally applied to close factual questions to favor the claimant. But was this not the way it was 30 years ago?
Coleman Karesh, beloved professor at the University of South Carolina School of Law from 1937 until 1972 for whom the library is named, often repeated the old adage: “The law is not static, it is dynamic. It is constantly changing.” Workers’ compensation is no exception. It is a pendulum that swings to the left, then to the right, and back to the left, and back to the right….