As of late in South Carolina, it
has become more and more common for the Claimant’s Bar to use the largely
uncontested admission of medical questionnaires from authorized/unauthorized
physicians as evidence in workers’ compensation matters to meet their burden of
proof. These statements typically are
related to causation, permanent restrictions, physical limitations, future
medical treatment, and more. Generally,
these questionnaires are not the written statements by the completing
physician; rather, they are drafted by claimant’s counsel, using phrasing not
likely to be used by medical professionals, and bolstering the statements made
therein by qualifying them to the appropriate medical standard (“to a
reasonable degree of medical certainty”) which is why they are problematic. The
effect of these questionnaires is two-fold: (1) a detailed explanation of the
claimant’s medical condition is boiled down to a check mark in a “yes” or “no”
box, and (2) the claimant’s burden of proof is seemingly shifted to the
defendants who must then go and depose said medical professional, at the cost
of the employer/insurance provider, in order to cross-examine them on these
statements that are most often not their own.
Under the “hearsay” definition (outlined below), a medical questionnaire
is clearly hearsay, as it contains out-of-court statements (made by claimant’s
counsel and adopted by the medical professional) and is offered into evidence
to prove the truth of the matter asserted, i.e., to prove the statements made
therein. The rules regarding the
submission of evidence in SC Workers Compensation are relaxed under the APA
Guidelines, but these questionnaires seek to present a legal standard,
fashioned as though the physician provided it in support of their unsolicited
medical record, which is why they should be subjected to a different level of
scrutiny and not omitted from the hearsay exception.
S.C. Code Ann. § 1-23-330(1) makes
clear that the South Carolina Rules of Evidence do not apply in proceedings
before the Workers’ Compensation Commission.
Hamilton v. Bob Bennett Ford, 339 S.C. 68, 70, 528 S.E.2d 667,
668 (2000) (citing Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712
(1940)). As such, “great liberality is
exercised in permitting the introduction of evidence in proceedings under the
Workers’ Compensation Act.” Id. Note, however, that this liberality is not a
wide-open door, permitting the admission of any and all evidence without
thought; rather, South Carolina courts have opined that certain evidence must
still meet judicial standards of admissibility.
Specifically, while the hearsay rules laid out in SCROE 801 – 806 are
not applicable, hearsay evidence sought to be introduced in a workers’
compensation proceeding must still “be corroborated by facts, circumstances, or
other evidence.” Ham v. Mullins
Lumber Co., 193 S.C. 66, 7 S.E.2d 712 (1940); See also Horton v. Pyramid
Masonry Contractors, Inc., 2008 WL 9841237 (S.C. Ct. App. 2008); McCallum
v. Beaufort County School Dist. Ex rel. South Carolina Boards Ins. Trust,
2005 WL 7083462 (S.C. Ct. App. 2005).
“Hearsay” is defined by South Carolina Rule of Evidence 801 as “a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”
Recently, the Defense Bar began
contesting these medical questionnaires and pushing for an outright ban on the
same. To date, the Workers’ Compensation
Commission has been largely unwilling to make affirmative findings as to their
admissibility or inadmissibility. But
see Eric Counsel v. Transportation Servs. LLC, & United Wisconsin Ins.
Co. 2020 WL 8872085 (S.C. Work. Comp. App. Panel. Sept. 16, 2020)
(Commissioners Wilkerson, Barden, and Beck holding a medical questionnaire
admissible as an exception to the rule against hearsay because the medical
conclusions drawn therein were also noted in the physician’s prior medical
records and were corroborated by the medical records of another treating
physician). In response to this
contentious debate, the South Carolina Senate has proposed bill S. 366 which
seeks to amend S.C. Code 42-17-40(A) so as to provide that medical records and
opinions of medical providers (i.e., medical questionnaires) are deemed
admissible without regard to the rules of evidence. The effect of this bill would be to stifle
any and all arguments from the defense bar and allow for the admissibility of
medical questionnaires without objection.
This bill was introduced for its first reading on January 12, 2021, and
was found favorable by the SC Senate Judiciary Committee on March 16, 2022. The bill must now be read for the second and
third times, not to occur on the same day.
At the third reading, the bill may be debated, amended, committed,
recommended, tabled, etc. After this
third reading occurs, the Senate will put the bill to a vote wherein only a
majority is needed for passage. If this
occurs, it will then be sent to the South Carolina General Assembly where it
must be found favorable by the appropriate committee and read on three separate
occasions, the debate of which will occur during the second reading. If passed in the SC General Assembly, the
Governor will have five days to veto it, after which time it will become
law. An override of the Governor’s veto
would require 2/3 vote of the SC General Assembly. If the General Assembly does not accept this
bill as written, they may amend the same and send it back to the Senate for
approval. If the amendments are
approved, the bill passes. In the event
of a disagreement, a conference committee of members from both houses will
convene to resolve the issues. If the
conference fails to agree, the bill will likely fail to pass.
the effect of this legislation will not bring about a drastic shift in defense
practice in workers’ compensation matters, as the WCC has thus far chosen not
to reject these questionnaires, the fact that the WCC will now accept them
without question is rather concerning.
This unobjectionable acceptance ultimately takes us farther away from an
even playing field in workers’ compensation claims where claimant’s attorney
would be required to incur the same expenses and follow the same rules as
defense attorney, and further allows claimants to shift their own statutory
burden of proof on to the defense which is not proper under the Act.
Further updates on this issue will
undoubtedly be forthcoming in the next few months.
Gray Stepp & Laffittee, LLC