Recently the federal judge overseeing the multi-district litigation involving claims by over 16,000 women that Johnson & Johnson’s talc based Baby Powder causes cancer ruled that the claimant’s experts were qualified and could testify in upcoming trials against Johnson & Johnson.  That was great news.  Then two weeks ago Johnson & Johnson announced it would stop selling its talc based Baby Powder.  Once again more great news, but Johnson & Johnson still won’t admit that it’s talc based Baby Powder causes cancer.

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Some South Carolina workers’ compensation cases involve the issue of whether a particular injury was work-related or whether the employer has a valid defense against the employee’s claim. Sometimes, however, the real fight is not between the employer and employee, but between other parties. For instance, this can happen when a worker dies as a result of an on-the-job accident, and multiple parties seek death benefits.

Facts of the Case

The plaintiff in a recently decided appellate case was the brother and personal representative of the estate of a man who died when his boat capsized in a pond during a work-related accident in 2013. The plaintiff filed a Form 52 notice of a claim for death benefits a few months after the accident that took the worker’s life. A hearing was held, during which the plaintiff sought workers’ compensation benefits on behalf of the deceased worker’s mother, as next of kin under South Carolina Code § 42-9-140(B). Another claimant sought benefits for herself as the deceased worker’s alleged common law wife or, alternatively, as a dependent.

When someone is hurt at work and files a South Carolina workers’ compensation claim, one of the issues that must be determined is the claimant’s average weekly wage. Usually, this is fairly simple: just add up the worker’s earnings for the past year and divide that number by 52.

Of course, sometimes a worker has not been employed at a particular place long enough for there to be a meaningful accumulation of wage data (in which case a similarly situated worker’s earnings may possibly be used). Other issues can also arise, as was demonstrated in a case in which a worker held two jobs – one paid and one unpaid – and was hurt on the unpaid job.

Facts of the Case

In a recent (unreported) case from the South Carolina Court of Appeals, the plaintiff was a graduate student who worked both as an unpaid intern at a university hospital and as a regular employee at a fast food restaurant. He was hurt during his work as an intern and filed a workers’ compensation claim against the university’s accident fund. Continue reading

Most issues arising in a South Carolina automobile accident case can be handled in state court. Sometimes, however, a case is filed in federal court. When this happens, a state court may be asked to weigh in on a particular issue of South Carolina law.

This is especially likely in cases involving issues which have not previously been addressed specifically by the state courts.

Facts of the Case

In a recently considered declaratory judgment case, the defendant was a man who, along with his late wife, had been involved in an automobile accident caused by a drunk driver. At the time of the accident, the couple was traveling in a car owned by the late wife’s mother. After the wife passed away from injuries suffered in the accident, the drunk driver’s automobile liability insurance company tendered policy limits to the man as compensation for his personal injuries and his late wife’s injuries and wrongful death. The mother’s uninsured/underinsured motorist carrier also paid policy limits to the man. The man’s own UM/UIM carrier tendered UIM bodily injury limits, but it refused the man’s request for additional funds (to be paid from property damage coverage of the “split limits” policy) for potential punitive damages against the drunk driver. Continue reading

South Carolina workers’ compensation cases can sometimes drag on for years, especially if the injured worker allegedly suffers subsequent injuries to the same part of the body. Not all such litigation is pursued by the injured worker against his or her employer, however.

Sometimes, multiple insurance companies seek the courts’ direction as to which is responsible for payment of a workers’ claims. This can happen when the injuries happen at times in which a single employer had different workers’ compensation carriers or if the worker changes jobs and his or her employers are insured by different companies.

Facts of the Case

In a case appealed from the Richland County Circuit Court, the claimant was a man who allegedly hurt his back while working for a particular employer in 2002. The plaintiff was a workers’ compensation insurance company that paid benefits owed to the claimant as a result of this injury. The claimant reached maximum medical improvement in the summer of 2003 and, thereafter, began working for a different employer insured by the defendant workers’ compensation carrier. Continue reading

Most South Carolina medical malpractice lawsuits revolve around the issues of whether the defendant health care provider breached the applicable standard of care and, if so, the amount of compensation due to the victim.However, sometimes there are other issues, such as in a recent case in which the malpractice action was settled, but a dispute arose as to who was entitled to share in the monetary proceeds paid by the allegedly negligent medical providers.

Facts of the Case

In a recently decided appellate case, the plaintiff was the mother of a minor child who died an hour after she was born. The mother brought a wrongful death and survival action against the child’s medical providers, seeking damages for medical malpractice. The mother named the defendant and another man (who was later dismissed from the case) as putative fathers. After the lawsuit was settled, the mother petitioned the trial court to deny the defendant any interest in the wrongful death proceeds, relying on South Carolina Code § 15-51-40. The probate court agreed with the mother that the defendant had failed to provide reasonable support and was thus not entitled to share in the proceeds of the settlement.

When an injured worker files a South Carolina workers’ compensation claim, he or she may be entitled to several kinds of benefits. These benefits may include paid medical care, temporary total disability, and/or permanent partial or permanent total disability payments.

The amount of money that the claimant ultimately receives is based in part upon his or her average weekly wage at the time of the accident or illness giving rise to the claim for benefits. Once a determination has been made that the worker is, in fact, entitled to workers’ compensation benefits, the worker may seek a lump sum payment of part (or all) of the benefits that the employer or its workers’ compensation insurance carrier is ordered to pay.

He or she is not automatically entitled to a lump sum payout, and such a request may be met with great resistance.

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Under the law of South Carolina, employers who do business in the state must provide a way for injured employees to receive the benefits to which they are entitled upon the filing of a South Carolina workers’ compensation claim.

There are generally two ways in which this can be accomplished. The employer may purchase a workers’ compensation liability insurance policy or it may qualify as a “self-insured” employer. With regard to the self-insured option, two or more employers in businesses of a similar nature may be allowed to enter into an agreement to pool their workers’ compensation liabilities for the purpose of qualifying as self-insurers.

Facts of the Case

In a case originating in the Richland County Circuit Court, the plaintiffs were members of a home builders’ association that, some years prior, had created a self-insurers’ fund  in order to fulfill their obligations under the law. After the defendant board of trustees announced their intent to wind down the fund and set up a new mutual insurance company, the plaintiffs filed a lawsuit seeking to challenge the board’s authority to use the fund’s assets in that manner. Continue reading

The amount of insurance coverage available in a South Carolina car accident case is one of the most important considerations in determining the overall value of a claim filed by an injured person or the family of an accident victim.

As a practical matter, if there is no insurance, recovery of fair compensation is next to impossible. (Hence the expression, “You can’t get blood out of a turnip.”) But, what happens when the defendant does have liability insurance but the insurance company becomes insolvent?

Facts of the Case

In a case recently considered on appeal, the plaintiffs were the personal representatives of the estate of a truck driver who was killed in a fatal, multi-vehicle accident that occurred in 2008. After a decade of litigation involving several different defendants and multiple theories of liability, the issue before the Bamberg County Circuit Court was the amount of money damages that the defendant insurance guaranty association owed the plaintiffs after one of the insurance companies involved in the case became insolvent. Continue reading

A South Carolina workers’ compensation case can be very challenging. Even though these laws were purportedly put in place to protect employees and their families against financial hardship due to a work-related injury or death, many workers’ compensation insurance companies will fight hard to avoid paying a claim.

There are several levels of review in such matters, beginning with the decision of a single commissioner and ending in the state supreme court. Most contested cases are settled or otherwise resolved somewhere along this lengthy process.

Facts of the Case

The plaintiff in a recent (unreported) case decided by the South Carolina Court of Appeals was the surviving spouse of a 58-year-old man who worked for the defendant county in its radio and telecommunications department. In September 2014, a criminal suspect barricaded himself in an apartment, leading to a nine-hour standoff that involved over 100 first responders. Two officers were shot during the altercation, and one died. The suspect also died as a result of a gunfire exchange with deputies. The decedent suffered an apparent heart attack while monitoring the county’s radio system during the standoff. He died a short time later.

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