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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.
While 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.
Brandon Rattray, Esq.
Workers’ Compensation Associate
Robinson Gray Stepp & Laffittee, LLC