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Is an Employer Entitled to a Set-Off for Workers' Compensation Benefits for a Prior Injury?

What happens if you are compensated for a permanent and total disability, eventually return to work, and then suffer another injury that results in permanent and total disability? Can you receive workers' compensation benefits for more than one injury?

You can receive workers' compensation benefits for more than one injury, but is the employer entitled to a "set-off" for the benefits paid for the prior injury?

In Lemon v. Mt. Pleasant Waterworks, decided December 31, 2019, the SC Court of Appeals reversed the commissioner's finding that the employer was entitled to a set-off for benefits previously paid for a separate injury.

When is the Employer Entitled to a Set-Off for Workers' Compensation Benefits from a Prior Injury?

Although the employer is entitled to a set-off for temporary disability payments made on the claimant's current workers' comp claim, the employer may not be entitled to a set-off for benefits paid on prior unrelated workers' comp claims, depending on the code section under which the benefits are awarded.

The Employer is Entitled to a Set-Off for Workers' Compensation Benefits Paid on the Current Claim

An employee who suffers permanent and total disability is entitled to payment of 66 2/3 of their weekly wages for a period of time not to exceed 500 weeks. SC Code § 42-9-10(A) says that:

(A) When the incapacity for work resulting from an injury is total, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during the total disability a weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages, but not less than seventy-five dollars a week so long as this amount does not exceed his average weekly salary; if this amount does exceed his average weekly salary, the injured employee may not be paid, each week, less than his average weekly salary. The injured employee may not be paid more each week than the average weekly wage in this State for the preceding fiscal year. In no case may the period covered by the compensation exceed five hundred weeks except as provided in subsection (C).

When the employer pays temporary benefits as the case is pending, the employer is entitled to a set-off for the number of weeks that they have paid benefits. For example, in Lemon, the employer is required to pay up to 500 weeks of permanent disability, but the employer was given credit for the 122 weeks that they had already paid before the case was decided by the commissioner.

But what about payments made for prior, unrelated injuries? Is the employer entitled to a set-off for those amounts as well?

The Employer May Not Be Entitled to a Set-Off for Workers' Compensation Benefits Paid on Prior Unrelated Claims

SC Code § 42-9-170(B) states that an employee is entitled to compensation for a new, unrelated injury, but that the total compensation still must not exceed 500 weeks:

(B) If an employee receives a permanent injury as specified in Section 42-9-30 or Section 42-9-10(B) after having sustained another permanent injury in the same employment, he is entitled to compensation for both injuries, but the total compensation must be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding five hundred weeks. If an employee previously has incurred permanent partial disability through the loss of a hand, arm, shoulder, foot, leg, hip, or eye and by subsequent accident incurs total permanent disability through the loss of another member, the employer's liability is for the subsequent injury only, except that the employee may receive further benefits as provided under the provisions of Section 42-9-35. This subsection is effective on July 1, 2008.

The commissioner in Lemon relied on this statute to set-off a total of 321 weeks, crediting the employer with 122 weeks of temporary disability payments made on the current claim and 199 weeks of benefits that were paid on a prior, unrelated claim.

    42-9-170(B), however, only applies to benefits awarded under Section 42-9-10(B), which states "The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes, or any two thereof, constitutes total and permanent disability to be compensated according to the provisions of this section."

      Lemon's commissioner specified that the award for the current injury was under 42-9-10(A), and the plain language of 42-9-170(B), which caps the total benefits for both injuries at 500 weeks, does not apply to 42-9-10(A):

      Here, the Single Commissioner specified "the award in the present case is awarded under [§] 42-9-10(A)"; thus the Single Commissioner and Appellate Panel erred in applying § 42-9-170 to credit Respondents with 199 weeks of compensation paid for Claimant's prior benefits.

      If an employee has prior injuries that resulted in compensation, the employee has a new injury with the same employer, and the current workers' compensation award is under 42-9-10(B), the employer may be entitled to a set-off for the number of weeks that benefits were paid for the prior injury.

      On the other hand, if the new benefits are awarded under 42-9-10(A), the employer is not entitled to a set-off for benefits paid for the prior injury.

      Got Axelrod?

      If you were injured on the job in the past, even if it was with the same employer, you are most likely still entitled to workers' compensation for a new injury.

      Your workers' compensation attorney at Axelrod and Associates can help you to determine whether you are entitled to compensation, determine whether your employer is entitled to any set-offs for prior benefits paid, file your claim, and represent you at any hearings or appeals that are necessary to get full compensation for your injuries.

      Call now and schedule a free consultation with a Myrtle Beach worker's compensation lawyer on the Axelrod team. Call us at (843) 916-9300 or fill out our contact form today.

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