Suing Over a Work Injury in South Carolina

Generally no. When employer and employee are both under the Workers' Compensation Act, the worker's rights under the Act exclude all other rights and remedies against the employer for the injury or death. The statute does not bar claims against a subcontractor of the employer (or its employees) that caused the injury. An employer that fails to secure coverage loses this protection: the worker may sue it at law (see uninsured employer). Court-made exceptions, if any, were not reviewed.

Yes. The worker may sue a third party (not the employer) and receive compensation regardless. The worker must sue within one year after the insurer accepts liability or pays under an award, and must notify the Commission, employer and insurer within 30 days of filing. The insurer has a lien on the recovery for compensation and medical paid or to be paid, less its share of costs and attorney fees (fees set by the Commission, up to one-third of the insurer's amount). If the worker does not sue within the year, the right can pass to the insurer after written notice. A settlement for less than the compensation owed, made without the insurer's written consent, is not valid against the insurer, and the Commission may reduce the lien when the recovery is less than the worker's total damages.

While an employer fails to secure required coverage, the injured worker may either claim compensation or sue the employer at law for damages, and the employer cannot use the common-law defenses listed in § 42-1-510. When the Workers' Compensation Commission finds an employer is uninsured, it notifies the Uninsured Employers' Fund, which pays or defends the claim and can place a lien on the employer's assets to recover what it pays. The employer can be fined $1 per employee per day (at least $10 and up to $100 a day), and willful refusal to insure is a misdemeanor punishable by a fine of $100 to $1,000, 30 days to six months in jail, or both.