Tuesday, April 8, 2014

Workers' Compensation: Employees Must Look Out for Themselves

The most common scenario in a South Carolina workers' compensation matter involves a simple on-the-job injury in South Carolina to an employer of a South Carolina business. The employee's job often involves laborious tasks and strenuous labor. The employee is injured and tells his or her supervisor. The supervisor takes the employee to get treated at the local emergency department.

After that, things can get a little fuzzy. The employee is often injured such that he or she cannot immediately return to work and must remain out of work under the doctor's orders for a certain period of time. The employee does not report to the worksite and will call a supervisor, crew leader, or employer to report the absence. Paid time off may not be available, and the employee will remain out of work and without pay. With little or no communication from the employer, no income, and medical bills piling up, the employee will reach out to a lawyer. Finally!

The primary concern of any any workers' compensation attorney should be in obtaining the proper medical treatment for the attorney's client. The attorney will need to notify the Workers' Compensation Commission and employer's workers' compensation insurance company. The employer's insurance company should pay for any medical treatment for employee. But what is the employer's name again? And the insurance company should pay 2/3 of the employee's average weekly wage if the employee is out of work under doctor's orders for a certain period of time. But how much was the employee being paid?

The attorney for the employee receives a response from the employer's workers' compensation insurance company's insurance adjuster: "Dear Sir, I have consulted with my client, the employer, and the employer is not aware that your client is an employee." What? OK. The attorney calls the client and asks the client/employee to bring in a pay stub (or take a photo with the client's cell phone and e-mail it to the attorney, right?). But the employee doesn't get paid by check. Only in cash.

The client gets paid in cash only. OK. How about an employment contract. No. An e-mail? No. This is a manual labor job, not a desk job. A hand-written letter? Maybe the employer and employee are pen pals. No. Maybe the other employees will testify contrary to their employer. Hilarious. All avenues exhausted, it's just the employee's word against the employer's word.

The employer has protected itself by paying the employee in cash, not providing paystubs or a contract, and intimidating its employees to testify on its behalf. What has the employee done? Often nothing. Owning no bank account, there is no record of any regular deposits of the money paid by the employer to employee in cash and there is no record of employment. The employee faces a very difficult battle at a workers' compensation hearing when trying to prove he or she was an employee of employer, was injured on the job, reported the injury in time and to the right person, and was paid a certain weekly wage.

Employees should obtain some proof of their employment with employer, though it will almost certainly not be an employment contract, it may be a pay stub, e-mail, text message, letter, or anything whatsoever that would support the employee's assertion that he or she was an employee of the employer when the employee was injured. A record of pay is also helpful, whether it is handwritten or evidenced by regular deposits on pay days. Any documentation and information is helpful to the employee and claimant in a workers' compensation claim.

There are a lot of injustices in this world. An unscrupulous employer putting its employees in such a situation is certainly wrong, and employees must take measures to protect themselves. But if they do not, no one will revolt. There will not be riots in the streets. But the employee may be stuck without the benefits available to him or her under the South Carolina Workers' Compensation Act. Please feel free to contact our attorneys to discuss any concerns you may have with your employer.