Injured on the Job? Too 'Job Scared' to File a Workers' Compensation Claim?

Many times we see potential clients fail to follow through with a Workers’ Compensation claim because they are “job scared.”  Some of the individuals may have a promising but new career with their employer, other times the individual has been employed with the same company for 20+ years and fear losing a good job.  If you have been injured on the job and are job scared, please read this before deciding NOT to pursue a Workers’ Compensation claim.

It is illegal in South Carolina for an employer to fire an employee for initiating a Workers’ Compensation claim.  S.C. Code Ann. § 41-1-80 states:
 
 “no employer may discharge or demote any employee because the employee has instituted [in good faith]. . .” a Workers’ Compensation claim.
 
If you are legitimately injured while on the job and file a Workers’ Compensation claim against your employer, your employer can not terminate you for that reason
 
However, the law cited above does state that while you are pursuing a claim, your employer can fire you for other reasons, most commonly:
 
a) intoxication on the job;
b) destruction of the employer’s property;
c) habitual tardiness or absence from work;
        d) failure to meet established employer work standards;
        e) malingering; or
        f)  embezzlement.
 
If you do decide to pursue a Workers’ Compensation claim, while still working, we inform our clients to ALWAYS report to work on time and stay on their best behavior while on the clock. If your employer is attempting to fire you while under a Workers’ Compensation claim, they will try and find a justifiable reason to terminate you that is unrelated to your job injury.    
 
If you are injured on the job but afraid of being terminated for pursuing your rights under the South Carolina Workers’ Compensation laws, it is always advisable to speak with an attorney first.  We offer free consultations, so do not hesitate to call Ernie Trammell or Roy Trammell at the Trammell & Mills Law Firm, LLC located in upstate South Carolina as soon as possible after your work injury.  
 
 
THIS ARTICLE WAS WRITTEN BY ROY TRAMMELL, a Workers' Compensation attorney
Call and let Roy handle your case today, 864-231-7171 or trammellandmills.com 
 

Workers' Compensation Reform Horrible for Workers in South Carolina

 A recent article by NPR illustrates what is wrong with any legislation put forth in the name of "reform". This article provides quantitative evidence and examples of why the workers' compensation system is broken. Our very own Ernie Trammell has provided articles about South Carolina Workers' Compensation issues writing, "Injured at Work in South Carolina? What you need to know. (Part 1)" & "Injured at Work in South Carolina? What you need to know. (Part 2)"  . 

For an in depth analysis, historic background on the intent, and current state of workers' compensation laws, you should educate yourself with this article. More importantly, you should arm yourself with an attorney if you have a workers' compensation claim:

Injured Workers Suffer As 'Reforms' Limit Workers' Compensation Benefits

 

 

Independent Contractor vs Employee Relationship: A Stripper's Story

A recent South Carolina Court of Appeals case analyzed the employer/employee relationship vs. independent contractor under a most unique set of facts and circumstances. I would hate to spoil your learning about the law by improperly paraphrasing as a great deal of thought had to go into those sentences. The legal writing is something to be admired.

Essentially the court determined that the stripper was an independent contractor and not entitled workers' compensation benefits from the business in which she was working at the time of her injury. The court referred to the four factors that help determine the work relationship set forth in  Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009):

  1. direct evidence of the right or exercise of control;
  2. furnishing of equipment;
  3. method of payment; [and]
  4. right to fire.

An in-depth analysis of these four factors under the facts and circumstances of the case are broken down in great detail. I encourage anyone that has a question about how strippers perform their work, when an employee vs independent contractor situation arises, and/or workers' compensation case to read over Lewis v. L.B. Dynasty, Inc., d/b/a Boom Boom Room Studio 54 et. al, Op. No. 2010-165646 (S.C. Ct. App. filed September 5, 2012).

Here are a few excerpts:

"The clubs where Lewis worked are commonly referred to as strip clubs. Lewis's role as a dancer in these clubs is what most people would call being a stripper."

"She argues that the club furnished equipment, such as the stage for dancing; poles to assist the dancers; private rooms for V.I.P. dances; tables, chairs, and couches for the customers; and even glasses in which the bartenders poured their drinks. In her brief, Lewis states, 'The club provided the dancers with cleaning solution, towels, and a basket for collecting money while on stage, and the club provided the dancers with lockers for their belongings.'

"The extent to which an exotic dancer in the Boom Boom Room decides the manner in which she performs her dance to satisfy the club's customers, according to the record in this case, is not subject to any limitation or control by the club."

 

Injured at Work in South Carolina? What you need to know. (Part 1)

This is the first of a series of blogs written to tell workers in South Carolina what they need to do if they suffer a work-related injury.  

1.    Report your work-related injury immediately!

The most important advice that I can give an injured worker is to report the injury to his supervisor immediately and to make sure that the injury is documented by the
employer.  While the law only requires the injured worker to report the injury within 90 days of the occurrence, the practical effect is that most employers will deny the injured worker’s claim if the injury is not reported immediately.

Having represented only injured workers for more than 29 years, I can’t count the number of times that a potential client came to see me because his
workers’ compensation claim had been denied by his employer solely due to the fact that he had waited a few days to report his work injury.  The most common excuse given to me is this:

“I thought I had only strained my back and that it would get better in a couple of days so I did not tell anybody about my accident.  It was only after it did not get better that I decided to say something about it to my boss.” 

While the excuse may sound reasonable to the employee, it often gets him in trouble when he subsequently decides to report the injury.  

How does it get the injured worker in trouble?  
 

  • First, the delay in reporting the accident gives the employer greater reason for questioning whether the worker truly got hurt at work.  After the injury is reported, the employer will likely investigate the accident by questioning co-workers.  If the worker did not say anything when he got hurt, there will not be any co-workers to confirm his injury claim.   Even if the injured worker did say something to his co-workers when the injury occurred a few days earlier, they may, as a practical matter, be too afraid to speak up on his behalf to the employer for fear of job retaliation.  It is an easy way out for the co-worker to simply say to the employer that “I don’t remember it.”  I have even seen some co-workers try to gain favor in the eyes of the employer by saying that the injured worker told them that he had gotten hurt at home rather than at work.  The bottom line is that a delay in reporting the accident by the injured worker gives the employer justification to question the injured worker’s credibility and to deny the claim.
  • Second, some companies even have a policy that requires injured workers to report their injuries immediately to the company.  Failure to report the work accident immediately is deemed to be a violation of company policy for which the injured worker may be terminated.  Therefore, the worker who does not report his work accident immediately because he fears that he may get fired by his employer for getting hurt at work (which is against the law for the employer to do in South Carolina) actually gets fired for violating company policy when he reports the accident late.

In conclusion, it is imperative for the injured worker to report his accident at work immediately to his employer regardless of how insignificant he may initially think that his injury will be.  Often the very severe pain from an injury such as a back strain may not arise until the following morning. 

How many times have you gone out and done some strenuous work or exercise only to feel a little sore immediately after you finished, but then felt like you could not move the next morning when you woke up?  Don’t take the chance.  Report the injury immediately!

My next blog will be about the importance of the medical history that you give to the physician when you go for
medical treatment after you have suffered a work related injury.

 

 

 

 

 

 


 
(
Ernie Trammell is the author of this blog post and subsequent posts on Workers' Compensation in South Carolina. Mr. Trammell has been a Workers' Compensation attorney in South Carolina for 29 years, primarily in the Upstate encompassing the counties of Anderson, Abbeville, Greenville, Greenwood, Laurens, Oconee, Pickens, and Spartanburg.)