SMITH v. S.C. DEPT. OF MENTAL HEALTH
11/24/1997
k may result in an assessment
of a fine against the employer's representative.
E. If the claimant completes fifteen calendar days
of work but refuses to sign a Form 17, the employer's
representative may file a Form 21 according to R.
67-507E.
25A S.C. Code Ann. Regs. 67-504 (1990 & Supp. 1996).
Focusing on the language of 67-504 (C), Smith argues that temporary benefits cannot be terminated unless the employee is able to return to work without restriction and the employer provides a suitable job for the employee. Accordingly, because Smith had not been released to return to work without restriction and because DMH did not provide him with a suitable job, Smith contends DMH should not have been allowed to terminate his temporary benefits. We disagree.
A review of Regulation 67-504 in its entirety makes clear that the regulation governs the voluntary suspension and termination of benefits in situations where the employee returns to work without restriction or agrees that he is capable of returning to work without restriction. 25A S.C. Code Ann. Regs. 67-504 (C) & (D)(3); see also Sarah Ellis McKay, Note, The Proper Procedure for Suspending and Terminating Temporary Total Benefits, 48 S.C. L. Rev. 235 (1996). Smith, however, was never capable of returning to work without restriction, nor did he ever agree he could return to work without restriction; thus, Regulation 67-504 simply is not applicable to this case.
Instead, the termination of Smith's benefits must be governed by Regulation 67-507, which sets forth the procedure for involuntary termination of workers' compensation benefits. Regulation 67-507 provides, in pertinent part:
A. The employer's representative shall neither
reduce, suspend, nor terminate temporary total or
temporary partial compensation benefits except as
provided in this regulation or R. 67-504.
B. Disability is presumed to continue until the
employee returns to work.
C. The employer's representative may request a
hearing for permission to terminate compensation
benefits by:
(1) Preparing a Form 21, Employer's Request for
Hearing, stating the reasons supporting termination
of compensation and signing the form; and
(2) Filing with the Form 21 an updated Form 18
indicating compensation payments are current. If
not previously filed, a Form 15 and Form 20 must be
filed; and
(3) Attaching the following to the Form 21:
(a) A medical certificate of the authorized
health care provider stating the claimant has
reached maximum medical improvement; or
(b) A medical certificate of the authorized
health care provider stating the claimant is able
to return to the same or other suitable job , an
impairment rating, if any, and an affidavit of
the employer that the same or other suitable job
has been provided to the claimant; or
(c) A medical certificate of the authorized
health care provider stating the claimant is
unable to return to the same or other suitable
job and an impairment rating; or
(d) A medical certificate of the authorized
health care provider stating the claimant refuses
medical treatment.
25A S.C. Code Ann. Regs. 67-507 (1990). Because the provisions of 67-507 (C)(3) are disjunctive, temporary benefits may be terminated if the employer complies with any one of its requirements. Thus, if the employer can establish under 67-507 (C)(3)(a) that the employee
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