Do I have a claim? What are the benefits? What are the applicable timelines? Those are normal questions in a workers’ compensation consultation. Having consulted with thousands of people over the last decade plus, I recognize that most legal consultations have themes and center around legitimate subjects.
However, there are then the less common questions, but still concerns that are repeated from time to time by injured employees during initial consultations. I often hear the same misconceptions and misinformation, such as: I don’t have a claim because I caused my accident and injury, I’m at fault; my employer said I don’t qualify for workers’ compensation; and I don’t want to have to resign at the end of my case.
Does an injured worker qualify for benefits under the South Carolina Workers’ Compensation Act if the worker is at fault for the worker’s accident and injury?
An accidental workplace injury will normally qualify for benefits under the South Carolina Workers’ Compensation Act even when the injured worker is at fault for the accident. Absent special circumstances and defenses such as intoxication, fraud, and horseplay, a workers’ compensation claimant who is same employee that unintentionally caused the accident will likely have an admissible claim. The South Carolina Workers’ Compensation Act does not make a negligence determination or require that a third party be at fault in order for the injured employee to be entitled to benefits under the Act.
Does the employer determine whether the worker qualifies for benefits under the South Carolina Workers’ Compensation Act?
I have heard all sorts of reasons that employers will advise employees as to why they may not qualify for workers’ compensation benefits, such as there being a time requirement of employment of thirty days or a year, which is not true. Or that the employee is not entitled to any benefits because the employee was at fault for the accident, which is also not true. Often, an employer will misclassify a worker as a subcontractor in an attempt to avoid responsibility for a worker’s accidents on the job, but the employer cannot determine if someone is an employee or employer. The employer is not a lawyer, and you should not accept your employer’s opinion on your legal claim as sound legal advice. You should obtain a free consultation from a South Carolina workers’ compensation lawyer immediately so that you have all the information you need to make the best decisions to protect your rights.
Does the employee have to resign at the conclusion of a claim under the South Carolina Workers’ Compensation Act?
No, although, depending on the circumstances, the parties may agree to part ways at the conclusion of a workers’ compensation claim in South Carolina. An employer is actually prohibited from terminating or demoting an employee because the employee has filed a workers’ compensation claim. However, an employer is permitted to terminate an employee for cause. Speak with your attorney about your workplace concerns and your rights and responsibilities under the applicable workers’ compensation and employment laws surrounding any potential resignation at the conclusion of a claim, but also about maintaining your employment throughout your claim.
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