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SOUTH CAROLINA WORKERS' COMPENSATION STATUTE OF LIMITATIONS
Filing a workers’ comp claim with your employer’s workers’ compensation insurance can be a scary thing to consider. A lot of workers fear retaliation, worry that co-workers will think less of them, or worry that filing a claim will hurt their chances of working in the future.
The truth is the system was set up to protect workers. However, the law does have several very strict limitations in place to make sure workers bring their claims in a timely manner. These statutes of limitations are almost never waived, so failing to meet the deadlines is just not an option.
Call at (803) 408-7352 or contact us online to arrange your free and confidential case review.
What Is the Statute of Limitations for South Carolina Workers’ Compensation?
In general, the overarching rule is that you have two years from the date of your injury to bring a claim before the South Carolina Workers’ Compensation Commission. If you do not file a claim within that two-year period, you will invariably lose out on your rights.
Under South Carolina Law, there are several deadlines you need to be aware of when filing a workers’ compensation claim, though. It’s not just the statute of limitations that matters.
How Soon After an Accident Must an Employee Report the Injury?
First, you must notify your employer of your injury in a timely manner. But what does this mean? Under South Carolina law, you must give notice of the injury within just 90 days. This means you have just 90 days to tell your employer about your injury.
This may seem like a lot of time, but many people think they have a minor injury, or they may downplay the injury by trying to “act tough” or pass it off as nothing serious. Only after weeks or months of not getting better do they finally realize that they need to go to a doctor.
If a worker waits past 90 days to report the injury to the employer, the claim will be barred, and there’s little anyone can do about it unless an exception applies.
There are a few small exceptions to the notice period. In general, the vast majority of workers know exactly when they are injured. A fall, a car accident, or a serious trauma are individual events that can be pinpointed to a single date in time. But not everything is that way.
Under South Carolina Workers’ Compensation laws, in cases where there is a “repetitive trauma,” the employee must give notice to the employer within 90 days of discovering the injury or within 90 days of when the employee could have discovered the injury had he or she used “reasonable diligence.”
What If the Worker Was Hurt by Someone Else While on the Job?
Sometimes a third party is liable for the injury. This means someone other than the employee, a coworker, or the employer is responsible. This is commonly seen when a negligent driver causes a crash, and a worker who is driving for the job gets hurt. Many other scenarios are possible, too.
When this happens, it’s important not to mistake the general personal injury statute of limitations for the workers’ compensation statute of limitations. This is because in South Carolina, you have up to three years to sue someone for negligence. This difference in deadlines can lead workplace accident victims to be confused about their rights.
Say you are hurt by a subcontractor at a construction site whose actions negligently cause you to break a leg at work. You may have up to three years to bring a claim against the subcontractor, but if you want to file a work comp claim with your employer, you’ll need to notify the employer right away and file your official claim within two years.
Our knowledgeable South Carolina injury lawyers can review the specifics of your case to explain the different deadlines and answer any questions you may have.
Understanding Exceptions to the Deadlines
Although the statute of limitations is a hard deadline for the majority of cases, there are circumstances that can raise potential exceptions:
- Special Rules for Death Claims – Sometimes a worker is tragically injured and succumbs to those injuries. After a fatal workplace accident, it would be cruel to force loved ones to immediately “notify” an employer within just 90 days. Therefore, South Carolina law gives the surviving spouse and children up to two years to bring their claim for death benefits, funeral benefits, and other compensation.
Keep in mind, however, that not all fatalities are automatically going to qualify for this exception to the notice period. For instance, a person may be exposed to a dangerous condition and receive a terminal diagnosis that will ultimately lead to death, but which may take weeks or months to actually result in death. If your loved one is suffering from a life-threatening occupational illness, it is best to go ahead and report the illness to the employer as soon as possible after diagnosis.
- Occupational Disease Claims – For exposures like asbestos, lead poisoning, radiation, and other cases of “occupational diseases,” the law also grants an exception to the general statute of limitations. In these limited circumstances, the clock does not start ticking, so to speak, until the worker has a diagnosis rendered and is so informed of that diagnosis. The reason for this is pretty clear. A person may suffer from a nasty cough for years and not realize what it is or have any reason to think it’s serious. However, once a doctor definitively diagnoses the condition, the person has two years from that date to make a claim for workers’ compensation if the condition is believed to be caused by the work environment.
Extension of Limitation Period
A legal statute of limitations is known as an “affirmative defense.” This means it can be used to entirely bar your claim. However, like all affirmative defenses, it must be raised in order for the employer to take advantage of it. Likewise, an employer’s bad conduct can actually waive the statute of limitations. Here’s how this works:
- Waiver – An employer can voluntarily waive a statute of limitations, but this is rare. More commonly, an employer waives the statute of limitations accidentally by failing to bring it up. The worker gives notice then later files the claim, and the employer takes some specific action before the Commission, thereby accepting the claim and waiving its defense. Although this is rare, it does happen.
- Estoppel – Again, though very uncommon, some employers behave poorly after a work injury and do things that legally prevent them from taking advantage of the statute of limitations. For instance, some employers may lie and tell the claimant there is “no insurance,” in order to get them not to file a claim. Or, they may misrepresent the process for filing a claim, such as using “fake forms,” and saying the employer will file the claim for the worker, only to never do so. If the employer engages in this sort of wrongdoing and it can be proven, a statute of limitations defense is often lost.
Tolling Statutes of Limitations
Finally, there are times when the statute of limitations may be tolled. These are again quite rare, but they are worth mentioning.
- Minors – Where an injured worker is under the legal age of adulthood (under 18), the law tolls or postpones the statute of limitations, and it begins running upon the worker turning 18. There are limitations to how this can be applied, and every case is unique.
- Mental or Cognitive Disability – Sometimes a person will, by virtue of a mental incapacity or cognitive injury, be unable to assert a claim or notify the employer of an injury. When this is the case, the statute of limitations may also be tolled or postponed until the disability is lifted. The disability or incapacity is considered lifted if the person regains mental capacity or passes away.
For help after a serious injury at work in South Carolina, contact Stewart Law Offices. An initial consultation is free, and all discussions are confidential.
Call at (803) 408-7352 or contact us online to arrange your free and confidential case review.
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Talk to a South Carolina Workers’ Compensation Lawyer Now
Each rule listed above should be very carefully construed because the law is subject to change and facts can be a big part of the equation. You should always speak with a knowledgeable workers’ compensation attorney as soon as possible to discuss your rights after an on-the-job injury. A skilled attorney can carefully review the facts to determine whether you have the option of waiting to file or not.
In most cases, it is much better to file your claim early and begin receiving the benefits you deserve. However, there are obviously times when this may not be practical or even possible. Therefore, the sooner you can speak with a South Carolina workers’ comp attorney, the better.