The Difference Between a Workers’ Compensation and Personal Injury Claim in South Carolina

Annually in South Carolina, dozens of workers are injured on the job. Despite the fact that many of these accidents involve blue-collar workers such as construction workers, other professions like healthcare workers, manufacturing employees, and even office workers are also all at risk of a workplace injury.

When an accident on the job occurs and results in a worker injury, there can be two possible routes for recovering compensation depending upon the circumstances of the case.  In most instances, a worker can only recover workers’ compensation benefits for a work injury as workers’ comp is deemed to be an “exclusive remedy” under South Carolina law.  However, in those instances when the worker is injured due to the negligence of someone other than his employer or a co-employee, the worker can then pursue both a workers’ compensation and a personal injury claim. The following article discusses the differences of each claim type.

WORKERS’ COMPENSATION CLAIMS IN SOUTH CAROLINA

Almost all South Carolina employers are required by law to have workers’ compensation insurance. If a worker is injured on the job, this insurance is a no fault system that will pay for not only the injured party’s medical bills, but also a portion of their lost wages. A “no fault” insurance system means that a worker who is hurt on the job does not have to prove someone else was at fault to receive benefits. In exchange for no fault coverage, the worker gives up their right to file a civil lawsuit against their employer. Thus, the employer is given immunity, or liability protection.

When an employee is hurt on the job in South Carolina and they file a workers’ compensation claim, they have the right to be reimbursed for all of their necessary and reasonable medical bills incurred due to the injury, in addition to wage replacement at a rate of 66 ⅔ percent of their average weekly wage (this amount cannot go over $866.67 for the year 2020). Injured workers can also be reimbursed for gas mileage costs at 57.5 cents per mile for travelling to and from a doctor’s office. Benefits are paid following a week-long waiting period. It is required that the worker reports their injury to their employer within 90 days of the accident.

PERSONAL INJURY CLAIMS IN SOUTH CAROLINA

Personal injury claims and workers’ compensation claims are extremely different. First, workers hurt on the job that are covered by workers’ compensation insurance are unable to file a personal injury claim against their employers. However, these workers do have the right to file a personal injury claim against a third party (not their employer or a co-employee) and whose negligence caused their injury. For example, this third party could be the manufacturer of a defective and dangerous piece of equipment that caused a workplace accident or it could be an at-fault driver who caused a car wreck while the worker was in a work vehicle.

In a personal injury claim, the burden of proof falls on the claimant’s shoulders to prove that the other party was at fault.  The worker needs to prove that the third party committed an act of negligence. Further, they must prove that this act of negligence not only caused the worker’s accident and injuries, but also that they suffered damages due to this accident.

Unlike in a worker’s compensation claim, a personal injury claim makes it possible for a worker to receive compensation for intangible damages, such as their pain and suffering and loss of enjoyment of life, in addition to the compensation for medical expenses and lost wages. Further, in a personal injury claim, the worker is able to recover compensation for lost wages at 100 percent of their wages, as opposed to the 66 ⅔ percent of lost wages that they can recover in a workers’ compensation claim. Thus, while the worker is tasked with the burden of proof in a personal injury claim, this type of claim gives them a right to recover a more expansive scope of damages than are possible in a workers’ compensation claim. Finally, in a personal injury claim, you are given three years from the date of injury to file your claim, as opposed to 90 days notice requirement in a workers compensation claim.

CAN I FILE A WORKERS’ COMPENSATION CLAIM AND A THIRD PARTY LIABILITY CLAIM?

If you are classified as an independent contractor and not as an employee, and thus are not covered by workers’ compensation insurance, you have the right to file a lawsuit against the party offering you work if they were at fault in causing your accident. If you are an employee, and are covered by workers’ compensation insurance, you may be able to file both a workers’ compensation claim and a personal injury claim against a third party, but you do not have the right file a civil lawsuit against your employer.

If you believe that third-party negligence was the cause of your work accident injuries, you should contact an experienced personal injury attorney to discuss your case as soon as possible. It is important to keep in mind that both in filing both workers’ compensation and personal injury claims there are time limits that must be adhered to. It’s also important to know that there are procedures which must be followed to allow you to receive full compensation.  For example, if you improperly settle your third party claim without the written consent of the workers’ compensation insurance company, this can void your entitlement to workers’ comp benefits.  The sooner you reach out to an attorney about your claims, the more likely you are to recover full compensation.

CONTACT OUR LAW OFFICES TODAY

If you were hurt on the job and have questions about how to proceed, you should schedule a consultation with one of our highly experienced workplace injury attorneys at the Joye Law Firm today. We can help you to understand the various claim options, as well as guide you through the complicated process of deciding which claim type is best for you to pursue. In addition, we will gather evidence about your case on your behalf, prove that you deserve compensation due to damages you have suffered as a result of your accident, and negotiate with an insurance company to ensure that you are awarded your full settlement amount.  In many instances, we opt to have different lawyers handle a client’s workers’ compensation case and the third party liability claim based on what type of cases the lawyer focuses on.

Please contact us online or by phone today to schedule your free case consultation. We will work hard for you.

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How to Diagnose a Birth Injury

Birth injuries can have devastating consequences on the health and happiness of children later in life. But a sad truth is that many parents are unaware of what birth injuries are, how they happen, and what is considered a birth injury.

This means birth injuries can go undiagnosed, and parents are left on their own handling the complications and financial difficulties resulting from birth injuries.

Causes of Birth Injuries

Birth injuries can harm either or both the infant and the mother. They are often the result of healthcare providers making a mistake or acting negligently before, during, or after delivery.

Examples of birth injuries include:

• An obstetrician failing to notice a health problem in the pregnant mother that would cause the birth to be dangerous
• Handling the baby roughly during delivery and causing injuries
• Delaying treatment for complications during delivery

Our guide below details several common birth injuries, how to recognize them, and what type of treatment they require. Click the image to download your free copy.

If your child’s condition is the result of an obstetrician, nurse, midwife, or other healthcare provider’s actions, you may deserve compensation.

It is difficult and expensive to treat infants for injuries. Birth injuries can also result in permanent conditions that require a lifetime of treatment.

Our experienced medical malpractice attorneys will help you calculate how much you need to ensure your child receives adequate compensation to offset the harm their injury caused. In these cases, the insurance company will likely try offer far too little, or deny responsibility at all, but we aren’t afraid to push back.

It’s Not Too Late to Get Help

When your child is the victim of a health care provider acting negligently at any point during your maternity, delivery, or post-birth treatment, you have rights under the law. However, since many serious birth injuries, including Erb’s palsy and cerebral palsy, are not always obvious until months or years after the injury that caused them, parents may worry it is too late to file a claim. This isn’t true.

In South Carolina, the statute of limitations for most personal injury cases is three years from the date of the injury. However, for birth injury cases, the statute of limitation is three years from the date you discovered the injury, up to age six. If your child is under the age of six and is showing signs of a medical condition that could have been caused by a birth injury, there is still time to talk to an experienced medical malpractice lawyer in South Carolina about your options.

Contact our firm today for a free case consultation.

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Should New Vehicles Have Standard Alcohol Detection Systems?

Alcohol detection systems, specifically Ignition Interlock Devices (IIDs), are currently used in South Carolina to help prevent accidents caused by repeat offenders of DUIs. Essentially an in-car breathalyzer, these devices require drivers to take a breath alcohol test before their vehicles will start, and if their results are over the pre-set limit, their vehicles will not start at all.

While IIDs are typically used as a court-mandated punishment, there is a current movement to make these or similar devices a standard feature in all new passenger vehicles. The hope is that this would prevent more alcohol-related auto accidents before they happen.

That’s because many people who drink and drive do so more than once before they are caught. The more often someone gets away with drinking and driving, the more confident it may make them to continue doing so, until it ends in a crash that injures or kills someone else.

Is requiring IIDs in vehicles of people who have never been convicted of a DUI going too far, or will future drivers see these devices as normal as wearing a seatbelt? Only time will tell, but we’ll go over the arguments both for and against this move.

The Case For Alcohol Detection Systems in Cars

According to data collected by the Insurance Institute for Highway Safety (IIHS), if alcohol detection systems had been in use in all vehicles between 2015-2018, roughly a quarter of all fatal alcohol-related crashes during that time period could have been prevented.

This determination accounts for the fact that at least some of these accidents would still have occurred even if both drivers were sober, and that the risk of an accident after consuming alcohol is statistically higher for younger drivers with fewer years of experience behind the wheel.

For example, assuming all have a blood alcohol content (BAC) of 0.09%, a 16-21 year-old is 60x more likely to cause a fatal crash than a sober driver, a 22-34 year-old is 21x more likely, and a 35+ year-old is 16x more likely to cause a crash, on average.

Some might argue a quarter of alcohol-related crashes prevented by IIDs isn’t worth the hassle of implementing the technology when three-quarters of alcohol-related crashes might still occur. However, this  dismisses how many car crashes actually occur in the U.S. and how many lives this measure could save. If alcohol detection systems had been in place in all vehicles between 2015-2018, they would have saved 37,636 lives.

Additionally, it is important to acknowledge why three-quarters of alcohol-related crashes might still occur. Any amount of alcohol can affect driving ability, and some of the crashes recorded between 2015-2018 included drivers who were driving with a BAC within the legal limit. The IIHS estimates that if no one ever drove after consuming alcohol, one-third of all road deaths could be prevented, saving as many as 12,000 lives per year. Implementing standard IIDs could be an important first step toward reducing auto accident deaths.

In a 2009 study of U.S. drivers, nearly two-thirds of respondents said they would support requiring IIDs in all vehicles as long as they were “fast, accurate, and unobtrusive.”

The Case Against Alcohol Detection Systems in Cars

One of the major complaints against implementing IIDs in all vehicles is that they are not currently as “fast, accurate, and unobtrusive” as we’d like.

The American Beverage Institute (ABI) believes that mandatory IIDs could cause unnecessary harm to the economy by limiting people’s ability to visit bars and restaurants.

If implemented in all vehicles, IIDS may have to be set to shut down vehicles at significantly lower BAC levels than the current legal limit in order to accommodate lack of accuracy. They could be set to lock vehicles at results as low as 0.03%-0.04% BAC, or about half the legal limit of 0.08, when roughly 70% of fatal drunk driving accidents occur at around 0.15% BAC, or nearly twice the legal limit.

“Even if manufactured to work 99.9997% of the time (the highest standard), they will still malfunction over 3,000 times per day,” noted an ABI official. “That’s sober individuals stranded and drunk drivers allowed to operate their cars.”

Another concern comes from auto manufacturers. The current bill proposing mandatory IIDs would require the National Highway Traffic Safety Administration to implement this standard within five years if passed into law, but automakers worry that a strict timeline would push this technology into production before it’s ready for widespread use, which could potentially lead to more errors.

If You’ve Been Injured in a Car Accident Involving a Drunk Driver, We Can Help

Regardless of whether the at-fault party has a history of drunk driving or not, if you or someone you love has been injured or killed in an accident caused by a drunk driver, you deserve compensation for your suffering and accident-related expenses.

Our South Carolina car accident attorneys know what comes next, how to fight back against belligerent insurance companies, and how to win our clients the compensation they deserve. Contact us today for a free case consultation.

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What to Do if You’re Caught in Bad Weather on Your Motorcycle

Rain, wind, and fog can all be dangerous hazards to motorcyclists. While most savvy riders won’t head out for a casual cruise when the morning’s weather forecast is grim, that doesn’t mean you won’t ever be caught unexpectedly in bad weather or need to get somewhere in bad weather with no method of transportation but your bike. It’s important to know what to do to decrease your risks of an accident in these situations.

What to Do When You Are Caught in Rain on Your Motorcycle

The first way to protect yourself from motorcycle crashes in rain is by going in prepared. Make sure you have the right gear in a saddlebag or backpack to protect yourself in the rain. These should include:

• Rainproof boots with non-skid soles
• Rain-proof gloves ­– select a pair with a built-in squeegee on the left index finger for clearing water from your visor (or waterproof glove covers with the same which can be pulled on over your gloves)
• High-visibility rain suit
• Full-face helmet

You may also want to consider packing an extra set of dry clothes to change into once you reach your destination and a plastic bag to hold your phone and protect it from water.

When riding your motorcycle, make sure to reduce your speed and put more space between yourself and other vehicles, since you will likely need more time to come to a stop. When braking, brake earlier and gently. The same goes for acceleration. You should also avoid making sudden turns.

Rain will spread any oil on the road, making it harder for your bike to get traction. Reflectors and painted lines will also become as slick as ice when wet. Look for foam on the road as a warning the upcoming stretch will be extra slippery.

If you see your RPM rise suddenly, you should adjust your speed, as you may be at risk of hydroplaning. If possible, trying riding in the tire tracks of the vehicle ahead of you, as the ground may be drier there.

It is also best to avoid puddles, because they could be hiding potholes.

What to Do if You Are Caught in Heavy Wind on Your Motorcycle

Heavy wind can push a car, and motorcycles are much smaller and lighter. If you are experiencing strong wind while on your bike, make note of where the wind is coming from and adjust your position in your lane to give yourself room if the wind pushes you out of it.

Lean into the wind to avoid tipping, but also take note of areas ahead of you that may block the wind, such as buildings, dense groupings of trees, or even taller vehicles. If you lean too hard when passing these, you could risk tipping in that direction.

When riding in wind, keep your limbs loose and relaxed. Tensing up against the wind may be your natural instinct, but it will also allow the wind to jerk you and your bike around more easily and affect your steering.

If riding with someone, make sure to ride staggered, not side by side, so you have more room to course correct when necessary without risking colliding with your fellow rider.

Riding in wind is also very tiring, so plan to take more breaks than usual.

What to Do if You Are Caught in Fog on Your Motorcycle

In fog, not only can you not see well, but other people on the road will have a harder time spotting you as well. Make sure to wear reflective clothing and check your rearview mirrors frequently for vehicles approaching from behind.

Use your low beams to light your way, as high beams will reflect off the fog and make it harder to see. You might also consider turning on your hazard lights in dense fog to make yourself more visible.

Watch your speed, remain calm, and avoid passing or changing lanes whenever possible. Use the road markers on the curb side of the road rather than the center line to guide you, as it will make you less likely to be blinded by oncoming headlights.

Your most serious risk is your visor fogging up, so it’s best as a preventative measure to apply a defogging agent to your mask or visor beforehand. Swapping to yellow-tinted goggles in fog can actually make it easier to see than riding without goggles altogether.

After a Motorcycle Crash, Get the Help You Need

Motorcycle crashes can be terrifying, frustrating, and painful in equal measure. That’s especially true when they occur in bad weather when you were taking every precaution, but other drivers on the road weren’t.

The South Carolina motorcycle accident attorneys at Joye Law Firm know how to handle cases where the insurance company tries to pass off the blame to the motorcycle no matter who was actually at fault, and we don’t let that type of behavior go unchallenged. Contact our firm today for a free case consultation if you’ve been involved in a motorcycle crash through no fault of your own.

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2021 Edition of Best Lawyers: 11 Joye Law Firm Attorneys Are Now Recognized

The South Carolina law firm has the most attorneys listed by Best Lawyers of any firm in Charleston in the practice areas of personal injury and workers compensation – claimants

 Joye Law Firm is pleased to announce that 11 attorneys at Joye Law Firm have been singled out as Best Lawyers or Ones to Watch in the 2021 edition of The Best Lawyers in America, reflecting the depth of our legal team.

The Best Lawyers’ recognition includes firm honors and individual Lawyer of the Year accolades for two Joye Law Firm attorneys who received the highest peer review feedback within a practice area and geographic area. Best Lawyers only recognizes one attorney as Lawyer of the Year for each practice area and locale.

Attorney Ken Harrell, the managing partner of Joye Law Firm, was awarded 2021 “Lawyer of the Year” in the category of Workers’ Compensation – Claimants for Charleston. Last year, Harrell was recognized as “Lawyer of the Year” in the category of Personal Injury Litigation – Plaintiffs in Charleston. He has been listed by Best Lawyers each year since 2014.

Attorney Sydney Lynn received Lawyer of the Year honors in the area of Insurance Litigation in Columbia, S.C. She was also listed by Best Lawyers in the practice areas of Personal Injury – Plaintiffs and Workers’ Compensation – Claimants in Columbia.

Joye Law Firm is top listed by Best Lawyers for the law firm’s work in both Personal Injury Litigation – plaintiffs and Workers’ Compensation – Claimants, with five lawyers in its North Charleston office included in each category. The top-listed honor is given to the law firm that has the most lawyers listed in a particular practice area in a geographic region.

The attorneys in Joye Law Firm’s Charleston Office recognized for their outstanding work representing plaintiffs in personal injury litigation are Mark Joye, Mark Bringardner, Patrick Jennings, Christopher McCool, in addition to Harrell. Mark Joye was also recognized in the category of Product Liability – plaintiffs for Charleston.

The attorneys in Joye Law Firm’s Charleston Office recognized by Best Lawyers for their excellent work representing injured workers in Workers Compensation cases include Matthew W. Jackson, Patrick Jennings, Ryan LeBlanc, in addition to Harrell.

Attorney John Roxon of Joye Law Firm was listed by Best Lawyers in the category of Worker’s Compensation – Plaintiffs for the Myrtle Beach area.

Two Joye Law Firm attorneys received recognition from Best Lawyers as Ones to Watch in 2021.

Attorney Brent Arant was recognized as One to Watch in the areas of Personal Injury – Plaintiffs and Product Liability in Charleston.

Attorney Randell Croft Stoney III was listed as One to Watch in the area of Personal Injury – Plaintiffs in Charleston

Best Lawyers’ “Ones to Watch” recognitions generally are awarded to attorneys who are earlier in their legal careers.

About Joye Law Firm

Joye Law Firm was founded in 1968 by the renowned trial lawyer, Attorney Reese Joye. Since that time, the firm has developed a national reputation for legal ethics and skill and has secured more than half a billion dollars in verdicts and settlements for clients. Joye Law Firm has helped thousands of people in South Carolina overcome serious injuries and move forward with their lives. Read testimonials from former clients. We care about our clients and we think our passion for justice shows.

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What Happens When Medicaid Pays Your Bills After an Accident?

When you are in a serious accident, you are likely going to suffer serious injuries. And these injuries will need treatment, often for a long time afterward.

Thankfully, you can get compensation for an accident that wasn’t your fault through a personal injury claim against the at-fault party and their insurance. Unfortunately, settling a claim can take time, and your medical bills aren’t going to wait until you have the check from your settlement. Furthermore, the at-fault party’s insurance won’t pay your medical bills as they come in.

What to Do When You Are Billed for Medical Expenses in the Middle of a Personal Injury Suit

While you are waiting for your claim to resolve, you can and should file your medical bills with your health insurance or Medicaid policy. If you are waiting to pay your bills until you receive compensation, your medical bills could be sent to debt collectors and damage your credit rating, even if you have every intention of paying later.

If you didn’t file your bills with Medicaid right away, it may still be possible. Talk to the healthcare provider and ask them to file the bill with Medicaid. If the healthcare provider tries to argue that Medicaid can’t be used to pay for accidents, they are wrong.

Don’t let them strong-arm you into forgoing using Medicaid when you are eligible. However, if you use Medicaid to pay for medical expenses after an accident, the accident must be reported to the Centers for Medicare & Medicaid Services.

What Happens After Medicaid Pays My Accident Medical Expenses?

When Medicaid pays your medical bills, they will put a lien on the amount they paid – this essentially means they are noting the debt amount. After a settlement is negotiated for your accident, all liens must be paid before you can receive any of it, according to a process called “subrogation.”

This is because, by South Carolina law, an accident victim cannot receive compensation twice for the same accident (in this case, from Medicaid and later from the at-fault party’s insurance).

After Medicaid is paid back from the settlement (and any other fees, such as lawyer fees are subtracted), the remaining amount will be issued to the accident victim.

While this means that if you win a $100,000 settlement, you will not actually be issued a check for $100,000, it does mean all your medical bills and liens will already be paid by the time you receive your check, so you don’t have to worry about taking care of all your medical debts yourself.

Additionally, because Medicaid pays steeply discounted prices for medical services, when paying them back you will end up paying significantly less for those services than if you presented yourself as uninsured when receiving treatment.

After an Accident, Call Joye Law Firm

Don’t let medical expenses associated with an accident that wasn’t your fault overwhelm you. The South Carolina personal injury attorneys at Joye Law Firm are experienced in fighting for the rights of injured victims to ensure they receive not just compensation for the medical bills they incur, but also for the pain and suffering they experienced as the result of other people’s negligence.

And furthermore, we want accident victims to know they can afford a lawyer. At Joye Law Firm, your initial consultation is always free, and you don’t have to pay us anything unless we get you money.

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