Yes, it is possible for an unpaid intern to file a worker’s compensation claim in South Carolina. A South Carolina business employing four or more people is generally required by law to purchase workers’ comp coverage for employees. Quite often, however, an insurer might try to deny the claim of an injured intern who is technically not a paid employee.
When considering appeals of interns’ denied workers’ comp claims, South Carolina courts have ruled that an intern controlled by an employer (in terms of their daily schedule and job duties) is eligible to file a workers’ comp claim for an injury or illness sustained in the course of performing job duties. If such a claim is accepted by the employer’s insurance company, bills from healthcare providers can be sent directly to the employer or insurer.
Calculating an Intern’s Lost Wages
For a regular employee whose claim is successful, workers’ comp pays two-thirds of wages lost as a result of the work-related injury or illness. An unpaid intern, however, has no wages on which to base compensation, so the insurance company is likely to resist covering lost wages unless the work-related injury has led to the intern’s disability, disfigurement, or death.
In a recent case, the Court of Appeals instructed the South Carolina Workers’ Compensation Commission (SCWCC) to calculate an injured intern’s weekly wage by the formula applied to the cases of:
- Volunteer firefighters
- Volunteer rescue teams
- Volunteer law officers
- Work-study students in high schools/colleges
Their wages are calculated as a designated percentage of the average weekly wage in the state for the previous fiscal year.
Primary Beneficiary Test
In 2018, the Department of Labor (DOL) laid out a primary beneficiary test to determine whether an intern should be considered an employee under the Fair Labor Standards Act (FLSA). The seven factors upon which such a decision should be made are:
- Whether there is an express or implied promise of compensation for the intern
- Whether the intern receives on-the-job training/education
- Whether the duties of the intern are connected to a formal education course/result in academic credit
- Whether the duration of the internship is determined by the intern’s academic calendar
- Whether the internship lasts only long enough for the intern to receive training/education
- Whether the intern’s duties displace or complement the duties of regular paid workers
- Whether the employer and intern anticipate that the intern will be hired as a regular employee at the end of the internship
The primary beneficiary test is not a binding law but rather a suggested means by which courts can determine from case to case whether an intern is an employee for the purposes of workers’ comp. The Fourth Circuit Court of Appeals and District Court for the District of South Carolina adopted an earlier version of this test to rule on disputed workers’ comp claims filed by interns, so it’s likely the same or a similar test will be used in future cases.
The Benefits Of A Workers' Compensation Lawyer
With so many different factors affecting an intern’s status as an employee/non-employee and the various means of calculating lost wages in an intern’s workers’ comp claim, the lawyers working for the employer’s insurance company can use complex logic and confusing strategies to dispute/deny your claim.
These attorneys know that the average person is unlikely to posses their level of knowledge that they do and is no match for them when it comes to negotiation, especially if that person is recovering from work-related injuries and possibly in pain and/or on medication. They also know you may be unlikely to appeal the case to the SCWCC, Court of Appeals, or Supreme Court without legal representation. Having an experienced workers’ comp attorney on your side, however, can level the playing field and provide valuable knowledge.
Have You Been Injured On The Job?
If you've been hurt at your job you can speak with a workers' compensation lawyer. Please contact us online or call our Charleston, South Carolina office directly at 843.488.2359 to schedule your consultation. We are also able to meet clients at our Conway, Myrtle Beach, Murrells Inlet, Mt. Pleasant, North Myrtle Beach or North Charleston office locations.