SC Code 42-3-150 defines the manner in which attendance of witnesses may be compelled. The hearing commission has the authority to issue a subpoena to compel the attendance of witnesses. “Any person who shall without just cause fail or refuse to testify….if it is in his power to do so in accordance with a subpoena of the commission, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than 20 nor more than 200 dollars” or 30 days imprisonment. Regulation 67-214 provides that a subpoena issued by a party can be contested by filing and serving a motion to quash or modify the subpoena.
The emergence of COVID has upended every aspect of American life and causes one to wonder what will happen to the rule of law after the dust settles. In our small part of the legal system, I recently had a hearing scheduled where the uninsured, but represented, employer, under subpoena to attend, contacted his lawyer early the morning of the hearing and told her he “thought” he had a fever. Before he verified to her that he did have a fever over 100 (we never did find out whether he in fact did have a fever) or produced a medical note to that effect, the hearing was cancelled so quickly that it looked like the parties could contract the virus through their outlook accounts. There was no medical documentation, no phone call with the hearing commissioner, no independent verification of any type, only a phone call to his lawyer and a possibility that he might have a fever. That was all it took to cancel a subpoena.
I had another hearing cancel the day before because one of the attorneys reported that 2 people in his law firm in one office had the virus and one person in the office where he usually worked had it. There was no assertion that he had been in any contact with the individuals who had tested positive, nor were any further details of his potential medical condition sought. It was enough that 3 people in the same law firm but physically located in two different office buildings in two different counties had the virus for the hearing to be cancelled.
A third hearing was cancelled 2 hours before it was scheduled to start because the claimant’s co worker had tested positive, and he had been ordered to get tested by his employer. That hearing was one of many that should have been held in April or May but was postponed because hearings were cancelled due to COVID.
These are three different factual scenarios with the same result. Procedural due process and judicial authority to compel witness attendance were sidestepped at the mere mention of COVID. What other cornerstones of our legal system are being upended as a result of this pandemic?
Since the outset, there have been many inquiries from all sides as to whether COVID would be covered under the workers compensation law in this state. That issue has been discussed in a previous blog, and I won’t go into it again at this time, but there was a hearing last week involving a COVID infection. I am unaware of the facts of the case, but we are all going to be breathlessly waiting for the ruling on that one. Under the current law, COVID has to either be an injury by accident, or qualify under the occupation disease statute. Injury by accident would be difficult to prove, as would proving an infection was peculiar to the particular employment and not a hazard to which the employee would be equally exposed outside of the employment, but there is going to be public pressure to provide coverage to those who contract the virus under workers’ compensation.
We are far from being able to assess the impact that this virus has had on our lives, and in particular, our workers’ compensation system in South Carolina. We at Clement Rivers, LLP will continue to stay on top of this ever changing environment so that we can at least give you the benefit of our “best guesses.”