The Impact of Negligence on a Workers’ Compensation Claim in Horry County

How Negligence Affects Your Right to Workers' Compensation In South Carolina

Negligence is the failure to act with the normal level of care a reasonable person would exercise in circumstances the same as yours. To collect compensation for your damages in most personal injury cases, you must prove the four elements of negligence:

The defendant owed you a duty of reasonable care.

The defendant breached that duty of care.

You suffered bodily injury or harm to your real or personal property.

The defendant’s breach of duty was the proximate cause of your injury/harm.

Workers’ comp claims, however, are not personal injury cases. Under workers’ comp law, negligence on the part of your employer/co-workers is irrelevant. No matter whose fault your work-related injury/illness is, you can file a claim for benefits as long as:

You didn’t harm yourself intentionally.

You weren’t under the influence of drugs or alcohol when your accident occurred.

You weren’t in the process of committing a crime when you were hurt.

Workers’ compensation exists, in part, to eliminate and replace lawsuits filed by injured employees against their employers. You may not sue your employer over a work-related injury if your company carries worker’s comp insurance and you’re eligible for benefits.

Making a Workers' Compensation Claim In South Carolina

As soon as possible after suffering an accidental work-related injury or being diagnosed with an occupational illness, you should do the following:

Report your injury/illness in writing to your employer (or your workers’ comp claims administrator if there is one).
Verify that your employer has filed a claim for you with the South Carolina Workers’ Compensation Commission (SCWCC). If this does not happen within 10 days, file the claim yourself with Form 50 (injury/illness) or Form 52 (death of a loved one), both available from the SCWCC website.
See the doctor recommended by your employer’s insurance company. (You can not see the doctor of your choice.)
Follow all treatment guidelines and medical advice you receive.
Keep documentation of all medical visits and treatments.
Contact a workers’ compensation attorney if:
- You have a serious injury/high medical bills or disability.
- Your employer responds slowly, fails to cooperate, or disputes/denies your claim.
- You do not receive the timely medical attention and treatment you feel you need to recover.

Although you actually have 90 days in which to report your injury/illness and two years in which to file a claim for workers’ comp benefits, do not wait to do either. If you delay reporting and filing, the insurance company is likely to allege that:

Your injury was not really work-related but occurred elsewhere.
You would not have waited to report, file, and seek treatment if you were really injured/ill as you say you are.

Filing a Lawsuit When You’re Not Eligible for Workers’ Compensation

While the great majority of workers in Horry County are eligible for workers’ comp benefits, there are some exceptions:

Contractors who receive a 1099 wage/tax statement, rather than a W-2
Federal employees
Railroad and agricultural workers
Employees of a business with an annual payroll of less than $3,000
Real estate agents working on a commission for brokers
Casual employees working on an as-needed basis
Business partners
Sole proprietors
Officers of a limited liability corporation (LLC)

If you fall into any of the above categories or your employer does not carry workers’ comp insurance, you could possibly file a personal injury lawsuit to recover damages. You might also get help through South Carolina’s Uninsured Employer’s Fund. A workers’ compensation lawyer can help you learn more about these options.

Filing a Third-Party Lawsuit

While you may not sue your employer or any co-worker for negligently causing your injury/illness if you have access to workers’ compensation benefits, it’s possible that you might have a cause of action against a third party not employed by your company. Some examples of causes for third-party suits are below:

You drive a company vehicle outside your workplace for work-related purposes and are injured in an accident caused by a negligent driver not employed by your company. You might be able to file an insurance claim or lawsuit against the at-fault driver.
Your injury is partially or completely due to faulty equipment in the workplace. The manufacturer of that equipment or an outside repair/service company that maintains it could be found negligent and liable for your damages.
An outside janitorial service that cleans your workplace leaves a wet/slippery floor or other hazardous conditions that contribute to your injury. You might have a claim against that service for its negligence.

While workers’ comp covers only medical expenses and two-thirds of your lost wages, a third-party insurance claim or lawsuit could get you compensation for the remainder of your lost wages, as well as your pain and suffering.

If your third-party claim goes to trial, the court could award you even more money in the form of punitive damages if it finds the behavior of the defendant was intentional or extremely reckless. In any of the circumstances described above, you would actually be pursuing two separate claims at the same time:

Your workers’ comp claim against your employer
Your insurance claim or lawsuit against an at-fault third party

Both actions have procedural rules to follow and deadlines that must be met in order for you to get compensation.

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