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Second Injury Fund - What is it? What are the Criteria for Filing?

The Second Injury Fund was in part, the variety of claims that have now become compensable, as well as a desire to have employers hire workers who were previously injured, that brought about the creation of the Second Injury Fund.

Through the Second Injury Fund, an employer can be reimbursed for a portion of the money it has to pay out on a workers' compensation claim if the injured worker has a pre-existing injury or condition, and the pre-existing injury/condition is aggravated by the work injury.
Criteria for filing for the Second Injury Fund Recovery

The simplest way to qualify for recovery is to have both (1) an affidavit from the employee stating that he/she did not know of the pre-existing condition and (2) a listed pre- existing condition.
    
Below is a copy of the statutory provision on Second Injury Fund reimbursement, which includes a chart of all the listed conditions. S.C. Code Ann. §42-9-400.

Criteria for recovery when pre-existing injury is a listed condition

  • A. Notice within 78 weeks:
    • The Fund must receive notice of a possible claim before the seventy-eight (78) week of compensation has been paid to the employee.
      **Note: notice should be sent certified mail return receipt requested to both the Fund and Workers' Compensation Commission.
  • B. Pre-existing Permanent Physical Impairment
    • Permanent
      • Pre-existing condition was permanent at the time employee was hired. Permanency is presumed when the employer knew of the pre-existing condition. While the statute does not appear to presume permanency for unknown pre-existing conditions, the Second Injury Fund has been accepting claims without proof of permanency where the pre-existing condition is listed.
  • C. Knowledge Requirement (Employer had...)
    • Knowledge of Condition when employee hired OR
    • Knowledge of Condition and continued to employ the employee or
    • No prior knowledge because the condition was known by employee and concealed by employee
  • D. Greater Liability
    • Either the degree of disability is greater or the employer's liability for compensation and medical payments is greater.
    • "Substantially Greater" from either
      • combined effects OR
      • injury's aggravation of pre-existing impairment OR
    • "But For" pre-existing injury, subsequent injury most probably would not have occurred OR
    • No death but for

Criteria for Recovery Non-listed Conditions

  • A. Notice within 78 weeks
    • The Fund must receive notice of a possible claim before the seventy-eight (78) week of compensation has been paid to the employee. **Note: notice should be sent certified mail return receipt requested to both the Fund and Workers' Compensation Commission.
  • B. "Permanent Physical Impairment"
    • Physical Impairment
      • Pre-existing condition qualifies under S.C. Code Ann. §42-9-30 for more than 78 weeks; OR
      • Pre-existing condition supports impairment rating of 78 weeks; OR
      • Combined disability qualifies for more than 78 weeks
    • Permanent
      • Pre-existing condition was permanent at the time employee was hired
    • Hindrance
      • Pre-existing condition is a hindrance to future reemployment
  • C. Knowledge
    • Knowledge of Condition when employee hired OR
    • No knowledge of Condition because either unknown to employee or concealed by employee
  • D. Greater Liability
    • Either the degree of disability is greater or the employer's liability for compensation and medical payments is greater.
      • "Substantially Greater" from either
        • a. combined effects OR
        • b. injury's aggravation of pre-existing impairment OR
      • "But For" pre-existing injury, subsequent injury most probably
        would not have occurred OR
      • No death "But For" pre-existing condition
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