According to the SC Workers’ Compensation Act, a full and final settlement (“clincher”) with a claimant who is not represented by an attorney must be approved at an informal conference. This “clincher conference” is attended by the claimant, an attorney for the employer/carrier, and one of seven SC Workers’ Compensation Commissioners. The Commissioner reviews the last few medical reports, explains the claimant’s rights under the SC Workers’ Compensation Act, and asks the claimant about his or her injury and current condition. The Commissioner then asks the defense attorney to explain the terms of the settlement and how the settlement amount was calculated. The Commissioner has the authority to either approve the settlement, or set the case for a hearing, if the Commissioner does not believe the settlement amount adequately covers the Claimant’s disability and potential future medical needs.
While each Commissioner has his or her own unique approach to clincher conferences, we at Clement Rivers, LLP have recently noticed a general trend towards more strict scrutiny of the medical portion of these settlements. For instance, in two clincher conferences I attended recently with two different Commissioners, each one asked for an itemized statement of the Claimant’s potential future medical expenses. Neither of these cases involved injuries that required surgery or other invasive treatment measures. What’s more, one of these cases involved a non-surgical finger injury. To be fair, the doctor in the finger case did say that the claimant would need surgery in the future. The Commissioners eventually approved both settlements, but only after we were able to present specific, itemized figures for the future medical treatment recommended by the treating physicians.
We must stress that the evidence of this trend is purely anecdotal, and there has not been any official policy change announced at the Commission, or legislative amendment addressing settlements with unrepresented claimants. There is not a requirement in the Act or Regulations that requires a detailed medical cost projection. Some Commissioners have, for years, required a cost analysis of future medicals in cases that involve surgical hardware and/or prosthetics. But we have never had to obtain such cost projections for routine settlements. It now appears that at least some of the Commissioners have begun requesting specific cost information for any settlement that closes out medical treatment, especially if there is the possibility of surgery in the future.