Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 2:00 P.M., the hour to which it stood adjourned, and was called to order by the PRESIDENT.

A quorum being present, the proceedings were opened with a devotion by the Chaplain as follows:

Hear these words of hope found in II Samuel:

"God is my strength and my power, and he makes my way perfect."
(II Samuel 22:33, NKJV)

Please bow with me in prayer:

How typical of us, O God, to rely upon our own insights alone, to strive to forge our way ahead oblivious to the errors of those who have gone before us, to turn away from your clear direction as to how we are to proceed. As this body wrestles with Workers' Comp and soon prepares to tackle the State Budget, guide these Senators in the ways that might lead them to achieve the greatest good for the people of this State. The issues are complex; the obstacles are many; the challenges are enormous. They always are. Yet we know, Lord, how You have promised to offer us Your strength and to award us a measure of Your power if we will but strive to follow Your way. May it be so, dear God, to Your glory, and for the well-being of this State we love.
Amen.

The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.

The following was received and referred to the appropriate committee for consideration:

Document No. 3079
Agency: Department of Labor, Licensing and Regulation, Board of Medical Examiners
SUBJECT: Office Based Surgery
Received by Lieutenant Governor April 4, 2007
Referred to Medical Affairs Committee
Legislative Review Expiration March 3, 2008

Senator PATTERSON introduced Dr. Beverly Simons of Columbia, S.C., Doctor of the Day.

At 1:00 P.M., the leave of absence granted to Senator MOORE for today was rescinded.

S. 620 (Word version) -- Senators Knotts, Cromer, Ford, Land, Scott, Elliott and Patterson: A SENATE RESOLUTION TO URGE THE ATTORNEY GENERAL OF THE UNITED STATES AND THE FEDERAL COMMUNICATIONS COMMISSION TO OPPOSE THE PROPOSED MERGER OF THE ONLY TWO SATELLITE RADIO PROVIDERS OPERATING IN THE UNITED STATES.

Senator KNOTTS asked unanimous consent to make a motion to recall the Resolution from the Committee on Labor, Commerce and Industry.

There was no objection.

The Resolution was recalled from the Committee on Labor, Commerce and Industry and ordered placed on the Calendar for consideration tomorrow.

The following were introduced:

S. 640 (Word version) -- Senator Hayes: A BILL TO AMEND SECTION 12-33-245, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE EXCISE TAX ON ALCOHOLIC LIQUORS FOR ON-PREMISES CONSUMPTION, SO AS TO REQUIRE THAT A STATE AGENCY OR LOCAL ENTITY THAT DOES NOT RECEIVE THE SAME AMOUNT OF REVENUE FROM THE EXCISE TAX AS IT DID FROM THE MINIBOTTLE TAX IN FISCAL YEAR 2004-2005, IS TO RECEIVE THE DIFFERENCE FROM THE GENERAL FUND WITHIN THIRTY DAYS AFTER THE CLOSE OF EACH QUARTER IN A CALENDAR YEAR.
l:\council\bills\bbm\9955ssp07.doc

Read the first time and referred to the Committee on Finance.

Senator SHEHEEN from the Committee on Judiciary submitted a favorable report on:

S. 94 (Word version) -- Senators Campsen, Knotts and Fair: A BILL TO AMEND SECTION 62-2-204, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A SURVIVING SPOUSE'S RIGHTS TO AN ELECTIVE SHARE, HOMESTEAD ALLOWANCE, AND EXEMPT PROPERTY, SO AS TO PROVIDE FOR THE VOLUNTARY WAIVER OF THOSE RIGHTS UPON FAIR AND REASONABLE DISCLOSURE BY THE OTHER SPOUSE.

Ordered for consideration tomorrow.

Senator MOORE from the Committee on Judiciary submitted a favorable with amendment report on:

S. 312 (Word version) -- Senators Martin, Hayes, Drummond, Thomas, Verdin, Vaughn, Mescher, Cromer, Elliott, Anderson, Sheheen, Reese, O'Dell, Alexander and Short: A BILL TO AMEND SECTIONS 6-23-20, 6-23-30, AND 6-23-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE JOINT MUNICIPAL ELECTRIC POWER AND ENERGY ACT, SO AS TO REVISE THE DEFINITIONS BY DELETING THE DEFINITION OF "AREA GENERALLY SERVED BY THE SAME ELECTRIC SUPPLIER", BY DELETING THAT THE "MUNICIPALITY" MUST HAVE OWNERSHIP OF A SYSTEM OR FACILITIES FOR THE GENERATION, TRANSMISSION, OR DISTRIBUTION OF ELECTRIC POWER AND ENERGY FOR AT LEAST TEN YEARS, TO DELETE THE REQUIREMENT THAT ALL MEMBERS OF A JOINT AGENCY MUST BE LOCATED WITHIN THE AREA GENERALLY SERVED BY THE SAME ELECTRIC SUPPLIER, AND TO DELETE THE REQUIREMENT THAT THE ACQUISITION OF A PROJECT BE BY PURCHASE FROM AN ELECTRIC SUPPLIER GENERALLY SERVING THE AREA IN WHICH THE MEMBERS ARE LOCATED.

Ordered for consideration tomorrow.

Senator MARTIN from the Committee on Judiciary submitted a favorable with amendment report on:

S. 327 (Word version) -- Senator Sheheen: A BILL TO AMEND SECTIONS 7-5-10, 7-5-35, AND 7-13-70, ALL AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT AND REMOVAL OF MEMBERS OF THE COUNTY BOARD OF REGISTRATION AND COUNTY COMMISSIONERS OF ELECTION AND THE COMPOSITIONS OF THESE BOARDS AND COMMISSIONS, SO AS TO REQUIRE THE GOVERNOR TO REMOVE A MEMBER OF THESE BOARDS OR COMMISSIONS WHO HAS NOT FULFILLED THE TRAINING REQUIREMENT.

Ordered for consideration tomorrow.

Senator MARTIN from the Committee on Judiciary submitted a favorable report on:

S. 389 (Word version) -- Senators Campsen, Bryant, Vaughn, Grooms, Martin, Verdin, Scott, Richardson, Fair, Ryberg, Thomas and Gregory: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 33, ARTICLE III OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO AGE OF CONSENT, SO AS TO DELETE THE PROVISION THAT NO UNMARRIED WOMAN SHALL LEGALLY CONSENT TO SEXUAL INTERCOURSE WHO SHALL NOT HAVE ATTAINED THE AGE OF FOURTEEN YEARS.

Ordered for consideration tomorrow.

Senator MOORE from the Committee on Judiciary submitted a favorable with amendment report on:

S. 431 (Word version) -- Senators McConnell, Moore, Drummond, Setzler, Matthews, Thomas, O'Dell, Gregory, Jackson, Mescher, Rankin, Alexander, Anderson, Grooms, Scott, Williams, Cromer, Vaughn, Ritchie, Verdin, Ford, Cleary, Patterson and Hayes: A BILL TO AMEND CHAPTER 33 OF TITLE 58, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 4 SO AS TO ENHANCE THE CERTAINTY OF INVESTMENTS IN THE INFRASTRUCTURE OF ELECTRIC UTILITIES SERVING CONSUMERS IN THIS STATE AND TO PROVIDE FOR REGULATORY OVERSIGHT OF THE DEVELOPMENT AND CONSTRUCTION OF BASE LOAD GENERATING PLANTS; TO AMEND SECTION 58-27-610, RELATING TO DEFINITIONS, SO AS TO DEFINE THE TERM "CORRIDOR RIGHTS"; TO AMEND SECTION 58-27-620, RELATING TO SERVICE RIGHTS OF AND RESTRICTIONS ON ELECTRIC SUPPLIERS, SO AS TO PROVIDE PARAMETERS TO DETERMINE WHICH SUPPLIER MAY SERVE PREMISES THAT CONSIST OF MULTIPLE BUILDINGS, STRUCTURES, OR FACILITIES; TO AMEND SECTION 58-27-660, RELATING TO SERVICE RIGHTS OF AND RESTRICTIONS ON ELECTRIC SUPPLIERS, SO AS TO RECOGNIZE THE AUTHORITY OF THE COMMISSION TO ACT WHEN IT FINDS THAT AN ELECTRIC SUPPLIER IS NOT PROVIDING ADEQUATE AND DEPENDABLE SERVICE; TO AMEND SECTION 58-27-865, RELATING TO FUEL COST RECOVERY, SO AS TO INCLUDE IN THE DEFINITION OF "FUEL COST" CERTAIN ENVIRONMENTAL COSTS AND EMISSIONS ALLOWANCE COSTS INCURRED IN THE PRODUCTION OF ELECTRIC POWER AND TO ALLOW THE PUBLIC SERVICE COMMISSION BY ORDER TO ALLOW ADDITIONAL ENVIRONMENTAL COSTS TO BE INCLUDED IN THE DEFINITION; AND TO AMEND SECTION 58-27-1210, RELATING TO EXTENSIONS OF SERVICE BY ELECTRIC UTILITIES, DISTRIBUTION ELECTRIC COOPERATIVES AND CONSOLIDATED POLITICAL SUBDIVISIONS, TO DEFINE THOSE SITUATIONS IN WHICH SUCH ENTITIES MUST SEEK COMMISSION APPROVAL BEFORE CONSTRUCTION OF FACILITIES.

Ordered for consideration tomorrow.

Senator MALLOY from the Committee on Judiciary submitted a favorable with amendment report on:

S. 446 (Word version) -- Senators Malloy, McConnell, Ford, Rankin, Knotts, Cleary, Anderson, Vaughn, Hawkins, Scott, Williams, Drummond, Mescher, Thomas, Short, Hutto, Leatherman, Richardson, Leventis, Elliott, Patterson, Pinckney, Land, Lourie, Jackson, Peeler, Sheheen, Moore and McGill: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "INDIGENT DEFENSE ACT" BY ADDING SECTION 17-3-5 SO AS TO DEFINE CERTAIN TERMS FOR PURPOSES OF THE CHAPTER; BY ADDING ARTICLE 5, CHAPTER 3, TITLE 17 SO AS TO ESTABLISH CIRCUIT PUBLIC DEFENDER SELECTION PANELS, PROVIDE FOR THEIR MEMBERSHIP AND RESPONSIBILITIES RELATED TO THE APPOINTMENT OF CIRCUIT PUBLIC DEFENDERS, PROVIDE ELIGIBILITY REQUIREMENTS FOR CIRCUIT PUBLIC DEFENDERS AND ESTABLISH THEIR DUTIES, AND AUTHORIZE THE CIRCUIT PUBLIC DEFENDERS TO EMPLOY CHIEF COUNTY PUBLIC DEFENDERS AND OTHER NECESSARY PERSONNEL; TO AMEND SECTION 17-3-30, RELATING TO THE AFFIDAVIT REGARDING A PERSON'S INABILITY TO EMPLOY COUNSEL AND PAYMENT OF AN INDIGENT PERSON'S ASSETS TO THE STATE, SO AS TO PROVIDE THOSE ASSETS ARE TO BE PAID TO THE GENERAL FUND OF THE STATE; TO AMEND SECTION 17-3-50, RELATING TO FEES FOR APPOINTED COUNSEL AND PUBLIC DEFENDERS, SO AS TO DELETE OBSOLETE LANGUAGE REGARDING THE APPOINTMENT OF COUNSEL IN ACCORDANCE WITH A PLAN PROMULGATED BY THE BAR OF EACH COUNTY; TO AMEND SECTION 17-3-90, RELATING TO PAYMENT VOUCHERS FOR PRIVATE, APPOINTED COUNSEL, SO AS TO MAKE CONFORMING CHANGES AND TO AUTHORIZE THE OFFICE OF INDIGENT DEFENSE TO PRESENT THE VOUCHER TO THE TRIAL JUDGE FOR APPROVAL; BY REVISING ARTICLE 3, CHAPTER 3, TITLE 17, SO AS TO MAKE CONFORMING CHANGES TO THE ARTICLE IN RELATION TO THE ADDITION OF ARTICLE 5; AND TO REPEAL SECTION 17-3-60 RELATING TO PROCEDURES FOR ESTABLISHING PUBLIC DEFENDER SYSTEMS IN COUNTIES AND SECTION 17-3-70 RELATING TO APPROPRIATIONS FOR MAINTENANCE OF DEFENDER CORPORATIONS AND COMPENSATION OF APPOINTED COUNSEL.

Ordered for consideration tomorrow.

Senator MOORE from the Committee on Judiciary submitted a favorable with amendment report on:

S. 598 (Word version) -- Senators Campsen, McConnell, Moore, Fair, Grooms, Ritchie, Verdin, Malloy and Bryant: A BILL TO AMEND CHAPTER 12, TITLE 58, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CABLE TELEVISION, BY ADDING ARTICLE 4 SO AS TO ENACT THE "TELEVISION PROGRAMMING PROTECTION ACT" TO REQUIRE A CABLE OR VIDEO SERVICE PROVIDER TO BLOCK ALL VIDEO AND AUDIO ON ANY CHANNEL THAT A SUBSCRIBER HAS NOT PURCHASED.

Ordered for consideration tomorrow.

THE SENATE PROCEEDED TO A CALL OF THE UNCONTESTED LOCAL AND STATEWIDE CALENDAR.

The following Bills and Joint Resolutions were read the third time and ordered sent to the House of Representatives:

S. 282 (Word version) -- Senators Leatherman and Setzler: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 11-35-3005 SO AS TO AUTHORIZE CERTAIN PROJECT DELIVERY METHODS FOR STATE PROCUREMENTS RELATING TO INFRASTRUCTURE FACILITIES; BY ADDING SECTION 11-35-3015 SO AS TO SPECIFY THE SOURCE SELECTION METHODS FOR THE TYPES OF AUTHORIZED PROJECT DELIVERY METHODS; BY ADDING SECTION 11-35-3021 SO AS TO PROVIDE FOR SUBCONTRACTOR SUBSTITUTION; BY ADDING SECTION 11-35-3023 SO AS TO PROVIDE FOR PREQUALIFICATION ON STATE CONSTRUCTION; BY ADDING SECTION 11-35-3024 SO AS TO PROVIDE FOR CONTENTS OF A REQUEST FOR PROPOSALS AND EVALUATION FACTORS APPLICABLE TO CERTAIN PROJECT DELIVERY METHODS; BY ADDING SECTION 11-35-3035 SO AS TO PROVIDE FOR THE REQUIREMENT OF ERRORS AND OMISSIONS INSURANCE TO COVER CERTAIN SERVICES DELIVERED PURSUANT TO CERTAIN PROJECT DELIVERY METHODS; BY ADDING SECTION 11-35-3037 SO AS TO PROVIDE FOR OTHER FORMS OF SECURITY TO ENSURE PERFORMANCE; BY ADDING SECTION 11-35-3070 SO AS TO ALLOW THE GOVERNING BODY TO APPROVE NONMATERIAL CHANGE ORDERS; TO AMEND SECTION 11-35-310, AS AMENDED, RELATING TO DEFINITIONS FOR PURPOSES OF THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE, SO AS TO REDEFINE "CONSTRUCTION"; TO AMEND SECTION 11-35-1510, AS AMENDED, RELATING TO METHODS OF SOURCE SELECTION, SO AS TO PROVIDE FOR SELECTION METHODS IN CONNECTION WITH PROJECT DELIVERY METHODS; TO AMEND SECTION 11-35-1530, AS AMENDED, RELATING TO COMPETITIVE SEALED PROPOSALS, SO AS TO REQUIRE COMPETITIVE SEALED PROPOSALS FOR CONTRACTS FOR CERTAIN PROJECT DELIVERY METHODS AND TO PROVIDE EXCEPTIONS; TO AMEND SECTION 11-35-2410, AS AMENDED, RELATING TO FINALITY OF DETERMINATIONS IN CONNECTION WITH COMPETITIVE SEALED BIDDING, SO AS TO INCLUDE REFERENCES TO CHOICE OF DELIVERY METHOD AND PREQUALIFICATION ON STATE CONSTRUCTION; TO AMEND SECTION 11-35-2910, AS AMENDED, RELATING TO CERTAIN SERVICES, SO AS TO INCLUDE DEFINITIONS PERTAINING TO THE VARIOUS AUTHORIZED PROJECT DELIVERY METHODS INCLUDING "DESIGN REQUIREMENTS", "INDEPENDENT PEER REVIEWER SERVICE", AND "INFRASTRUCTURE FACILITY"; TO AMEND SECTION 11-35-3010, AS AMENDED, RELATING TO ADMINISTRATION OF CONSTRUCTION CONTRACTING, SO AS TO SUBSTITUTE PROJECT DELIVERY METHOD FOR THE PROCESS AND "GOVERNMENTAL BODY" FOR "USING AGENCY"; TO AMEND SECTION 11-35-3020, AS AMENDED, RELATING TO CONSTRUCTION PROCUREMENT PROCEDURES, SO AS TO DELETE SOURCE SELECTION LANGUAGE, TO INCORPORATE NEW PROVISIONS ADDED IN EARLIER SECTIONS AND TO DELETE LANGUAGE DUPLICATIVE OF NEW PROVISIONS ADDED; TO AMEND SECTION 11-35-3030, AS AMENDED, RELATING TO BOND AND SECURITY SO AS TO PROVIDE THAT THE CONTRACT PRICE FOR PURPOSES OF A PAYMENT BOND OR PERFORMANCE BOND DOES NOT INCLUDE THE COST OF OPERATION, MAINTENANCE, AND FINANCE, AND TO ALLOW FOR NO SURETY DURING PRECONSTRUCTION OR DESIGN PHASES; TO AMEND SECTION 11-35-3210, AS AMENDED, RELATING TO APPLICABILITY AND POLICY IN CONNECTION WITH CERTAIN SERVICES, SO AS TO DELETE THE PROVISIONS REFERRING TO APPLICABILITY TO THOSE SERVICES; TO AMEND SECTION 11-35-3220, AS AMENDED, RELATING TO PROCUREMENT PROCEDURES, SO AS TO SUBSTITUTE "GOVERNMENTAL BODY" FOR "USING AGENCY"; TO AMEND SECTION 11-35-3230, AS AMENDED, RELATING TO SMALL ARCHITECT-ENGINEERING AND LAND SURVEYING CONTRACTS, SO AS TO SUBSTITUTE "GOVERNMENTAL BODY" FOR "USING AGENCY"; TO AMEND SECTION 11-35-3245, AS AMENDED, RELATING TO PERFORMING OTHER WORK, SO AS TO LIMIT ITS APPLICATION TO PROCUREMENTS FOR CONSTRUCTION USING THE DESIGN-BID-BUILD PROJECT DELIVERY METHODS; TO AMEND SECTION 11-35-3310, AS AMENDED, RELATING TO INDEFINITE DELIVERY CONSTRUCTION CONTRACTS, SO AS TO ADD A CROSS REFERENCE; AND TO REPEAL SECTION 11-35-1825, RELATING TO PREQUALIFICATION OF CONSTRUCTION BIDDERS.

S. 447 (Word version) -- Senators Gregory, Knotts, Leventis, Sheheen, Grooms, O'Dell, Lourie, Courson, Mescher, McConnell, Ritchie, Alexander and Campsen: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 30 TO TITLE 49 SO AS TO ENACT THE "PUBLIC WATERS NUISANCE ABATEMENT ACT" WHICH PERMITS THE DEPARTMENT OF NATURAL RESOURCES TO REMOVE OR REQUIRE THE REMOVAL OF CERTAIN STRUCTURES FROM THE PUBLIC WATERS OF THIS STATE UNDER SPECIFIED CONDITIONS, TO PROVIDE PENALTIES FOR VIOLATION, TO PROVIDE FOR AUTHORITY OF THE ATTORNEY GENERAL AND A MUNICIPALITY OR COUNTY TO DECLARE THESE STRUCTURES NUISANCES AND REQUIRE THEIR REMOVAL, AND TO PROVIDE, FURTHER, FOR A CIVIL ACTION BY A PRIVATE CITIZEN.

Senator SHEHEEN explained the Bill.

S. 459 (Word version) -- Senators Sheheen, Leventis, Lourie, Bryant, Ford, Knotts and Campsen: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 59-116-130 SO AS TO ENACT THE "JESSICA HORTON CAMPUS CRIME ACT" TO PROVIDE THAT CAMPUS POLICE OFFICERS SHALL NOTIFY AND WORK WITH LOCAL LAW ENFORCEMENT AGENCIES ON THE INVESTIGATION OF A DEATH OR A RAPE RESULTING FROM AN INCIDENT OCCURRING ON THE CAMPUS OF AN INSTITUTION OF HIGHER LEARNING.

S. 613 (Word version) -- Senators Grooms, Verdin, Leventis and Campsen: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 46-33-85 SO AS TO PROVIDE THAT A PHYTOSANITARY CERTIFICATE OR A PERMIT MAY BE ISSUED BY AN INSPECTOR FOR INTRASTATE AND INTERSTATE SHIPMENTS OF CONIFER AND HARDWOOD SEEDLINGS TO VERIFY THAT THEY ARE APPARENTLY FREE OF PESTS AND DISEASES, AND TO PROVIDE THAT TO ENSURE PEST AND DISEASE-FREE PLANT MATERIAL, THE PREFERRED METHOD OF TREATMENT IS FUMIGATION USING METHYL BROMIDE IN SEEDLING PLANT BEDS PRIOR TO SEEDING.

S. 274 (Word version) -- Senators Fair, Verdin, Anderson, Sheheen, Campsen, Thomas, Williams, Bryant, Cromer and Scott: A BILL TO AMEND CHAPTER 21, TITLE 24, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES, BY ADDING ARTICLE 13 SO AS TO ALLOW THE DEPARTMENT TO ESTABLISH DAY REPORTING CENTERS FOR CERTAIN INMATES OR OFFENDERS.

S. 456 (Word version) -- Senator Martin: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 7 TO CHAPTER 69, TITLE 38, SO AS TO ENACT THE "SUITABILITY IN ANNUITY TRANSACTIONS" TO PROVIDE STANDARDS AND PROCEDURES FOR RECOMMENDATIONS TO SENIOR CONSUMERS TO ENSURE THAT ANNUITY PRODUCTS FOR THESE SENIOR CONSUMERS ADDRESS THEIR INSURANCE AND FINANCIAL NEEDS.

S. 589 (Word version) -- Senator Thomas: A BILL TO AMEND SECTION 38-90-110, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A CAPTIVE INSURANCE COMPANY TAKING CREDIT FOR RESERVES ON RISKS OR PORTIONS OF RISKS CEDED TO REINSURERS COMPLYING WITH THE PROVISIONS OF SECTIONS 38-9-200, 38-9-210, AND 38-9-220, SO AS TO PROVIDE THAT AN INDUSTRIAL INSURED CAPTIVE INSURANCE COMPANY MAY NOT TAKE CREDIT IF NOT IN COMPLIANCE WITH THOSE PROVISIONS OF LAW, AND PROVIDE THAT ALL OTHER CAPTIVE INSURANCE COMPANIES MAY NOT TAKE CREDIT FOR RESERVES PURSUANT TO THOSE PROVISIONS UNLESS SPECIFIC APPROVAL HAS BEEN GRANTED BY THE DIRECTOR OF INSURANCE.

S. 625 (Word version) -- Agriculture and Natural Resources Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE CLEMSON UNIVERSITY, LIVESTOCK-POULTRY HEALTH COMMISSION, RELATING TO INTRASTATE MOVEMENT OF CERTAIN ANIMALS, DESIGNATED AS REGULATION DOCUMENT NUMBER 3108, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

S. 626 (Word version) -- Banking and Insurance Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF INSURANCE, RELATING TO RECOGNITION OF PREFERRED MORTALITY TABLES FOR USE IN DETERMINING MINIMUM RESERVE LIABILITIES, DESIGNATED AS REGULATION DOCUMENT NUMBER 3115, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

The following Bill, having been read the second time, was ordered placed on the Third Reading Calendar:

H. 3345 (Word version) -- Reps. Ceips, Harrison, E.H. Pitts and J.E. Smith: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-1-618 SO AS TO DESIGNATE AUGUST 16TH EVERY YEAR AS SOUTH CAROLINA AIRBORNE HERITAGE DAY.

S. 344 (Word version) -- Senators McConnell, Rankin, Elliott, Knotts, Malloy, Hawkins and Vaughn: A BILL TO AMEND SECTION 38-73-520, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RATE FILINGS REQUIRED, SO AS TO REQUIRE WORKERS' COMPENSATION INSURERS TO FILE WITH THE DEPARTMENT OF INSURANCE THEIR LOSS COSTS MULTIPLIERS; TO AMEND THE 1976 CODE BY ADDING SECTION 28-73-525 SO AS TO PROVIDE THE TIME FRAME IN WHICH WORKERS' COMPENSATION INSURERS MUST FILE THEIR LOSS COSTS MULTIPLIERS AND TO FURTHER PROVIDE THE MINIMUM INFORMATION THAT MUST BE INCLUDED IN THEIR FILINGS; TO AMEND SECTION 38-73-960, RELATING TO EFFECTIVE DATES OF PROPERTY AND CASUALTY RATE FILINGS, SO AS TO EXCLUDE WORKERS' COMPENSATION LOSS COSTS MULTIPLIERS FROM THOSE PROVISIONS; TO AMEND THE 1976 CODE BY ADDING SECTION 38-73-965 SO AS TO PROVIDE THAT THE EFFECTIVE DATE OF FILINGS FOR WORKERS' COMPENSATION LOSS COSTS MULTIPLIERS ARE GOVERNED BY SECTION 38-73-525; AND TO AMEND SECTION 38-73-990, RELATING TO THE DISAPPROVAL OF FILINGS, SO AS TO PROVIDE THAT THE DIRECTOR OR HIS OR HER DESIGNEE HAS THE AUTHORITY TO DISAPPROVE ANY WORKERS' COMPENSATION RATES AT ANY TIME AFTER THEY BECOME EFFECTIVE IF HE OR SHE DETERMINES THE RATES DO NOT MEET THE REQUIREMENTS OF CHAPTER 73 OF TITLE 38.

The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Banking and Insurance.

The Committee on Banking and Insurance proposed the following amendment (DKA\3261DW07), which was adopted:

Amend the bill, as and if amended, page 2, Section 38-73-525, SECTION 2, by striking lines 18-24 and inserting:

/   and any modifications to loss costs. A copy of the filing must be provided simultaneously to the Consumer Advocate. The filing must contain, at a minimum, the following information: commission expense; other acquisition expense; general expense; expenses associated with recoveries from the Second Injury Fund; guaranty fund assessments; other assessments; premium taxes; miscellaneous taxes, licenses, or fees; and provision for profit and contingencies. Rate filings must be reviewed by an actuary employed or retained by the department who is a member of the American Academy of Actuaries or an associate or fellow of the Casualty Actuarial Society. Within the thirty-day period, if the director or his or her designee /.

Amend further, as and if amended, page 3, after line 43, by adding an appropriately numbered SECTION to read:

/   SECTION ___.   Chapter 38, Title 73 of the 1976 Code is amended by adding:

"Section 38-73-526.   The director or his or her designee must issue a report to the General Assembly by the first of January each year that evaluates the state of the workers' compensation insurance market in this State. The report must contain an analysis of the availability and affordability of workers' compensation coverage and document that the department has complied with the provisions of Sections 38-73-430 and 38-73-525 with regard to both workers' compensation loss cost filings submitted by an advisory or rating organization and multiplier filings submitted by every insurer writing workers' compensation insurance."   /

Renumber sections to conform.

Amend title to conform.

Senator THOMAS explained the committee amendment.

The committee amendment was adopted.

There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.

S. 414 (Word version) -- Senators Land, Martin, Alexander, Cromer, Fair, Jackson, Matthews, Moore, O'Dell, Reese and Setzler: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 12 TO CHAPTER 77, TITLE 38 SO AS TO ENACT THE "VEHICLE PROTECTION PRODUCT ACT", TO PROVIDE FOR DEFINITIONS, TO REQUIRE THE REGULATION OF VEHICLE PROTECTION PRODUCT WARRANTIES, TO REQUIRE A VEHICLE PROTECTION PRODUCT WARRANTY TO ADHERE TO THE PROVISIONS OF ARTICLE 12, AND TO AUTHORIZE THE DIRECTOR OF INSURANCE TO IMPOSE CIVIL PENALTIES FOR VIOLATIONS OF ARTICLE 12.

The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Banking and Insurance.

The Committee on Banking and Insurance proposed the following amendment (DKA\3232DW07), which was adopted:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/ SECTION   1.   Sections 38-78-10 through 38-78-120 of the 1976 Code are designated as Article 1 of Chapter 78, Title 38 and entitled "General Provisions".

SECTION   2.   Chapter 78, Title 38 of the 1976 Code is amended by adding:

Section 38-78-510.   As used in this article:

(1)   'Administrator' means a third party other than the warrantor who is designated by the warrantor to be responsible for the administration of vehicle protection product warranties.

(2)   'Department' means the Department of Insurance of South Carolina.

(3)   'Director' means the person who is responsible for the operation and management of the Department of Insurance.

(4)   'Service contract' means a contract or agreement as defined under Section 38-78-20(12).

(5)   'Incidental costs' means expenses specified in the warranty incurred by the warranty holder related to the failure of the vehicle protection product to perform as provided in the warranty. Incidental costs may include, without limitation, insurance policy deductibles, rental vehicle charges, the difference between the actual value of a stolen vehicle at the time of theft and the cost of a replacement vehicle, sales taxes, registration fees, transaction fees, and mechanical inspection fees.

(6)   'Vehicle protection product' means a vehicle protection device, system, or service that is installed on or applied to a vehicle, is designed to prevent loss or damage to a vehicle from a specific cause, and includes a written warranty. For purposes of this article, the term 'vehicle protection product' includes, without limitation, alarm systems, body part marking products, steering locks, window etch products, and electronic, radio, and satellite tracking devices.

(7)   'Vehicle protection product warranty' or 'warranty' means a written agreement by a warrantor that provides that if the vehicle protection product fails to prevent loss or damage to a vehicle from a specific cause, then the warranty holder must be paid specified incidental costs by the warrantor as a result of the failure of the vehicle protection product to perform pursuant to the terms of the warranty. Incidental costs may be reimbursed under the provisions of the warranty in either a fixed amount specified in the warranty or sales agreement or by the use of a formula itemizing specific incidental costs incurred by the warranty holder.

(8)   'Vehicle protection product warrantor' or 'warrantor' or 'licensee' means a person who contractually is obligated to the warranty holder under the terms of the vehicle protection product warranty agreement. Warrantor does not include an authorized insurer providing a warranty reimbursement insurance policy.

(9)   'Warranty holder' means the person who purchases a vehicle protection product or who is a permitted transferee.

(10)   'Warranty reimbursement insurance policy' means a policy of insurance that is issued to the vehicle protection product warrantor to provide reimbursement to the warrantor or to pay on behalf of the warrantor all covered contractual obligations incurred by the warrantor under the terms and conditions of the insured vehicle protection product warranties sold by the warrantor.

(11)   'Seller' means a person who sells vehicle protection products.

Section 38-78-520.   (A)   A vehicle protection product may not be sold or offered for sale in this State unless the seller, warrantor, and administrator, if any, comply with the provisions of this article.

(B)   Vehicle protection product warrantors and related vehicle protection product sellers and warranty administrators complying with this article are not required to comply with other provisions of this article as considered appropriate by the director.

(C)   Warranties, indemnity agreements, and guarantees that are not provided as a part of a vehicle protection product are not subject to the provisions of this article.

Section 38-78-530.   (A)   A person may not operate as a warrantor or represent to the public that the person is a warrantor unless the person is licensed pursuant to the requirements established by the department under its authority to promulgate regulations for the administration of this article.

(B)   Warrantor registration records must be filed annually and must be updated within thirty days of a change. The registration records must contain:

(1)   the warrantor's name, fictitious names under which the warrantor does business in this State, principal office address, and telephone number;

(2)   the name and address of the warrantor's agent for service of process in this State if it is someone other than the warrantor;

(3)   the names of the warrantor's executive officer or officers directly responsible for the warrantor's vehicle protection product business;

(4)   the name, address, and telephone number of administrators designated by the warrantor to be responsible for the administration of vehicle protection product warranties in this State;

(5)   a copy of the warranty reimbursement insurance policy or policies or other financial information required by Section 38-78-540;

(6)   a copy of each warranty the warrantor proposes to use in this State; and

(7)   a statement indicating under which provision of Section 38-78-540 the warrantor qualifies to do business in this State as a warrantor.

(C)   The director shall charge each warrantor an initial fee of six hundred dollars, which is retained by the department to offset the cost of processing the registration and maintaining the records. In addition, the director shall charge a biennial renewal license fee of six hundred dollars after the initial fee. The renewal date is determined by the department. The information contained in Section 38-78-530 is subject to Chapter 4, Title 30 (the Freedom of Information Act).

(D)   If a warrantor fails to renew by the renewal deadline, the director shall give a written notice of the failure and the warrantor has thirty days to complete the renewal of his license before he is suspended or revoked from being licensed as a warrantor under the article.

(E)   An administrator or person who sells or solicits a sale of a vehicle protection product but who is not a warrantor, is not required to register as a warrantor or be licensed under the insurance laws of this State to sell vehicle protection products.

Section 38-78-540.   (A)   A vehicle protection product must not be sold, or offered for sale in this State unless the warrantor meets one of the conditions of subsection (B) or (C) in order to ensure adequate performance under the warranty.

(B)   The vehicle protection product warrantor must be insured under a warranty reimbursement insurance policy issued by an insurer authorized to do business in this State which provides that:

(1)   the insurer shall pay to, or on behalf of, the warrantor one hundred percent of all sums that the warrantor is legally obligated to pay according to the warrantor's contractual obligations under the warrantor's vehicle protection product warranty;

(2)   a true and corrected copy of the warranty reimbursement insurance policy has been filed with the director by the warrantor; and

(3)   the policy contains the provision required in Section 38-78-550.

(C)   The vehicle protection product warrantor or its parent company shall maintain a net worth or stockholders' equity of fifty million dollars.

The warrantor shall provide the director with a copy of the warrantor's or the warrantor's parent company's most recent Form 10-K or Form 20-F filed with the Securities and Exchange Commission within the last calendar year or, if the warrantor does not file with the Securities and Exchange Commission, a copy of the warrantor or the warrantor's parent company's audited financial statements that show a net worth of the warrantor or its parent company of at least fifty million dollars. If the warrantor's parent company's Form 10-K, Form 20-F, or audited financial statements are filed to meet the warrantor's financial stability requirement, then the parent company shall agree to guarantee the obligations of the warrantor relating to warranties issued by the warrantor in this State and provide a copy of the guarantee to the director. The financial information filed under this subsection is confidential as a trade secret of the entity filing the information and not subject to public disclosure. The warrantor shall notify and secure the department's approval if there are any material changes to the application, business plan, or financial security instruments it files for licensure. An annual statement must be filed each renewal date established by the department.

Section 38-78-550.   (A)   A warranty reimbursement insurance policy must not be issued, sold, or offered for sale in this State unless the policy meets the conditions contained in this section.

(B)   The policy must state that the issuer of the policy shall reimburse, or pay on behalf of the vehicle protection product warrantor, all covered sums which the warrantor is legally obligated to pay or shall provide all services that the warrantor is legally obligated to perform according to the warrantor's contractual obligations under the provisions of the insured warranties sold by the warrantor.

(C)   The policy must state that if the payment due under the terms of the warranty is not provided by the warrantor within sixty days after proof of loss has been filed according to the terms of the warranty by the warranty holder, the warranty holder may file directly with the warranty reimbursement insurance company for reimbursement.

(D)   The policy must provide that a warranty reimbursement insurance company that insures a warranty is considered to have received payment of the premium if the warranty holder paid for the vehicle protection product, and the insurer's liability under the policy must not be reduced or relieved by a failure of the warrantor, for any reason, to report the issuance of a warranty to the insurer.

(E)   The policy must comply with the provisions in Article 9, Chapter 75, Title 38 regarding cancellation, nonrenewal, or property casualty insurance.

Section 38-78-560.   (A)   A vehicle protection product warranty must be written in at least ten point font and must not be sold or offered for sale in this State unless the warranty:

(1)   states 'the obligations of the warrantor to the warranty holder are guaranteed under a warranty reimbursement insurance policy' if the warrantor elects to meet its financial responsibility obligations under Section 38-78-540(B), or states 'the obligations of the warrantor under this warranty are backed by the full faith and credit of the warrantor' if the warrantor elects to meet its financial responsibility obligations under Section 38-78-540(C);

(2)   states that if a warranty holder makes a claim against a party other than the warranty reimbursement insurance policy issuer, the warranty holder is entitled to make a direct claim against the insurer upon the failure of the warrantor to pay a claim or meet an obligation under the terms of the warranty within sixty days after proof of loss has been filed with the warrantor, if the warrantor elects to meet its financial responsibility obligations under Section 38-78-540(B);

(3)   states the name and address of the issuer of the warranty reimbursement insurance policy. This information does not have to be preprinted on the warranty form, but may be added to or stamped on the warranty, if the warrantor elects to meet its financial responsibility obligations under Section 38-78-540(B);

(4)   identifies the warrantor, the seller, and the warranty holder;

(5)   sets forth the total purchase price and the terms under which it is to be paid. However, the purchase price is not required to be preprinted on the vehicle protection product warranty and may be negotiated with the consumer at the time of sale;

(6)   sets forth the procedure for making a claim, including a telephone number;

(7)   states the existence of a deductible amount, if any;

(8)   specifies the payments or performance to be provided under the warranty including payments for incidental costs, the manner of calculation or determination of payments or performance, and any limitations, exceptions, or exclusions;

(9)   sets forth all of the obligations and duties of the warranty holder, including the duty to protect against further damage to the vehicle, the obligation to notify the warrantor in advance of any repair, or other similar requirements, if any;

(10)   sets forth any terms, restrictions, or conditions governing transferability of the warranty, if any; and

(11)   contains a disclosure that reads substantially as follows: 'This agreement is a product warranty and is not insurance'.

(B)   At the time of sale, the seller or warrantor shall provide to the purchaser:

(1)   a copy of the vehicle protection product warranty; or

(2)   a receipt or other written evidence of the purchase of the vehicle protection product and a copy of the warranty within thirty days of the date of purchase.

Section 38-78-570.   (A)   A vehicle protection product may not be sold or offered for sale in this State unless the vehicle protection product warranty clearly states the terms and conditions governing the cancellation of the sale and warranty, if any.

(B)   The warrantor only may cancel the warranty if the warranty holder:

(1)   fails to pay for the vehicle protection product;

(2)   makes a material misrepresentation to the seller or warrantor;

(3)   commits fraud; or

(4)   substantially breaches the warranty holder's duties under the warranty.

(C)   A warrantor canceling a warranty shall mail written notice of cancellation to the warranty holder at the last address of the warranty holder in the warrantor's records at least thirty days before the effective date of the cancellation. The notice must state the effective date of the cancellation and the reason for the cancellation.

Section 38-78-580.   (A)   Unless licensed as an insurance company, a vehicle protection product warrantor may not use in its name, contracts, or literature, the words 'insurance', 'casualty', 'surety', 'mutual', or any other words descriptive of the insurance, casualty, or surety business or description of an insurance or surety corporation, or any other vehicle protection product warrantor. A warrantor may use the term 'guaranty' or a similar word in the warrantor's name.

(B)   A vehicle protection product seller or warrantor may not require, as a condition of financing, that a retail purchaser of a motor vehicle purchase a vehicle protection product or require, as a condition of sale, that a purchaser of a motor vehicle purchase a vehicle protection product that is not installed on the motor vehicle at the time of sale.

Section 38-78-590.   (A)   A vehicle protection product warrantor shall keep accurate accounts, books, and records concerning transactions regulated under this article.

(B)   A vehicle protection product warrantor's accounts, books, and records must include:

(1)   copies of all vehicle protection product warranties;

(2)   the name and address of each warranty holder; and

(3)   the dates, amounts, and descriptions of all receipts, claims, and expenditures.

(C)   A vehicle protection product warrantor shall retain required accounts, books, and records pertaining to each warranty holder for at least two years after the specified period of coverage has expired. A warrantor discontinuing business in this State shall maintain its records until it furnishes the director satisfactory proof that it has discharged all obligations to warranty holders in this State.

(D)   Vehicle protection product warrantors shall make accounts, books, and records concerning transactions regulated under this article available to the director for examination.

Section 38-78-600.   (A)   The director shall conduct examinations of warrantors, administrators, or other persons or entities licensed under this article to enforce the provisions of this article and protect warranty holders in this State. The provisions of Chapter 13, Title 38 apply to the examination of warrantors, administrators, or other individuals and entities governed under this chapter to the extent the director considers appropriate. Upon request of the director, a warrantor shall make available to the director accounts, books, and records concerning vehicle protection products sold by the warrantor that are necessary to enable the director to reasonably determine compliance or noncompliance with this article.

(B)   The director may take action that is necessary or appropriate to enforce the provisions of this article and the director's rules and orders and to protect warranty holders in this State. If a warrantor engages in a pattern or practice of conduct that violates this article and that the director reasonably believes threatens to render the warrantor insolvent or cause irreparable loss or injury to the property or business of a person or company located in this State, the director may issue:

(1)   an order directed to the warrantor to cease and desist from engaging in further acts, practices, or transactions that are causing the conduct;

(2)   an order prohibiting the warrantor from selling or offering for sale vehicle protection products in violation of this article;

(3)   an order suspending or revoking the license of the warrantor;

(4)   an order imposing a civil penalty on the warrantor; or

(5)   any combination of the foregoing orders, as applicable.

(C)   Before the effective date of an order issued pursuant to this section, the director shall provide written notice of the order to the warrantor and the opportunity for a hearing to be held within thirty business days after receipt of the notice, except prior notice and hearing is not required if the director reasonably believes that the warrantor has become, or is about to become, insolvent.

(D)   A person aggrieved by an order issued under this section may request a hearing pursuant to Section 38-3-210.

(E)   The director may bring an action in a court of competent jurisdiction for an injunction or other appropriate relief to enjoin threatened or existing violations of this article or of the director's orders or rules. An action filed under this section also may seek restitution on behalf of persons aggrieved by a violation of this article or orders or rules of the director.

(F)   Instead of supervision or revocation of a license as authorized in this article, a person or entity who is found to have violated this article or orders of the director may be ordered to pay to the director a civil penalty in an amount determined by the director, of not more than ten thousand dollars for each violation and not more than twenty-five thousand dollars in the aggregate for all violations of a similar nature. For purposes of the section, violations are of a similar nature if the violation consists of the same or similar course of conduct, action, or practice, irrespective of the number of times the conduct, action, or practice that is determined to be a violation of this article occurred.

Section 38-78-610.   The director may promulgate regulations consistent with the provisions of this article that are necessary to implement them. These regulations must include disclosures for the benefit of the warranty holder, recordkeeping, and procedures for public complaints. These regulations also shall include the conditions under which surplus lines insurers may be rejected for the purpose of underwriting vehicle protection product warranty agreements.

Section 38-78-620.   This article applies to all vehicle protection products sold or offered for sale on or after the effective date of this article. The failure of a person to comply with this article before its effective date is not admissible in a court proceeding, administrative proceeding, arbitration, or alternative dispute resolution proceeding and must not be used to prove that the action of a person or the affected vehicle protection product was unlawful or improper. The adoption of this article does not imply that a vehicle protection product warranty was insurance before the effective date of this article. This section does not preclude the department from taking administrative disciplinary action against a person who has engaged in the unauthorized transaction of insurance business."

SECTION   2.   If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION   3.   This act takes effect six months after approval by the Governor. /

Amend the title to read:

/ TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY DESIGNATING SECTIONS 38-78-10 THROUGH 38-78-120 AS ARTICLE 1, CHAPTER 78, TITLE 38, ENTITLED "GENERAL PROVISIONS"; AND BY ADDING ARTICLE 3 TO CHAPTER 78, TITLE 38 SO AS TO ENACT THE "VEHICLE PROTECTION PRODUCT ACT", TO PROVIDE FOR DEFINITIONS, TO REQUIRE THE REGULATION OF VEHICLE PROTECTION PRODUCT WARRANTIES, TO REQUIRE A VEHICLE PROTECTION PRODUCT WARRANTY TO ADHERE TO THE PROVISIONS OF ARTICLE 3, AND TO AUTHORIZE THE DIRECTOR OF INSURANCE TO IMPOSE CIVIL PENALTIES FOR VIOLATIONS OF ARTICLE 3. /

Senator CROMER explained the committee amendment.

The committee amendment was adopted.

There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.

H. 3757 (Word version) -- Reps. Cato, Agnew, Alexander, Allen, Anderson, Anthony, Bales, Ballentine, Bannister, Barfield, Battle, Bedingfield, Bingham, Bowen, Bowers, Brady, Branham, Brantley, Breeland, G. Brown, R. Brown, Ceips, Chalk, Chellis, Clemmons, Clyburn, Cobb-Hunter, Coleman, Cooper, Cotty, Crawford, Dantzler, Davenport, Delleney, Duncan, Edge, Frye, Funderburk, Gambrell, Govan, Gullick, Hagood, Haley, Hamilton, Hardwick, Harrell, Harrison, Hart, Harvin, Haskins, Hayes, Herbkersman, Hinson, Hiott, Hodges, Hosey, Howard, Huggins, Jefferson, Jennings, Kelly, Kennedy, Kirsh, Knight, Leach, Limehouse, Littlejohn, Loftis, Lowe, Lucas, Mack, Mahaffey, McLeod, Merrill, Miller, Mitchell, Moody-Lawrence, Moss, Mulvaney, J.H. Neal, J.M. Neal, Neilson, Ott, Owens, Parks, Perry, Phillips, Pinson, E.H. Pitts, M.A. Pitts, Rice, Rutherford, Sandifer, Scarborough, Scott, Sellers, Shoopman, Simrill, Skelton, D.C. Smith, F.N. Smith, G.M. Smith, G.R. Smith, J.E. Smith, J.R. Smith, W.D. Smith, Spires, Stavrinakis, Stewart, Talley, Taylor, Thompson, Toole, Umphlett, Vick, Viers, Walker, Weeks, Whipper, White, Whitmire, Williams, Witherspoon and Young: A CONCURRENT RESOLUTION TO CONGRATULATE THE AMERICAN INSTITUTE OF ARCHITECTS ON ITS 150TH ANNIVERSARY AND TO PROCLAIM APRIL 9-14, 2007, AS SOUTH CAROLINA ARCHITECTURE WEEK.

The Concurrent Resolution was adopted, ordered returned to the House of Representatives.

The following Bills were carried over:

S. 355 (Word version) -- Senators Grooms, Richardson, Verdin, Campsen and Vaughn: A BILL TO PROVIDE FOR THE RESTRUCTURING OF THE DEPARTMENT OF TRANSPORTATION. (ABBREVIATED TITLE)

The Senate proceeded to a consideration of the Bill, the question being the third reading of the Bill.

Senator McCONNELL moved under the provisions of Rule 26B to take up a further amendment to S. 355.

Senator McCONNELL explained the amendment.

Senator McCONNELL moved to carry over the Bill.

Senator RYBERG spoke on the Bill.

Senator McCONNELL spoke on the Bill.

The Bill was carried over.

S. 333 (Word version) -- Senator Fair: A BILL TO AMEND ARTICLE 23, CHAPTER 5, TITLE 56 OF THE 1976 CODE, RELATING TO RECKLESS HOMICIDE; RECKLESS DRIVING; DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS, OR NARCOTICS, BY ADDING SECTION 56-5-2943, TO PROVIDE THAT AS A CONDITION OF PROBATION FOR A SECOND OR SUBSEQUENT VIOLATION OF SECTIONS 56-5-2930, 56-5-2933, OR 56-5-2945, A COURT MAY REQUIRE THAT AN OFFENDER WEAR A CONTINUOUS REMOTE ALCOHOL MONITORING DEVICE, TO PROVIDE THAT A FINDING BY THE COURT THAT THE OFFENDER'S BLOOD ALCOHOL CONCENTRATION MEETS OR EXCEEDS EIGHT ONE-HUNDREDTHS OF ONE PERCENT SHALL BE A VIOLATION OF THE OFFENDER'S PROBATION, TO PROVIDE THAT IN ADDITION TO ANY OTHER PENALTIES IMPOSED BY THE COURT BECAUSE OF THE PROBATION VIOLATION, THE COURT MAY EXTEND THE PERIOD FOR WHICH THE OFFENDER'S LICENSE HAS BEEN SUSPENDED FOR UP TO AN ADDITIONAL TWELVE MONTHS, AND TO PROVIDE THAT THE OFFENDER MUST BEAR THE COST OF WEARING AND MONITORING THE DEVICE.

On motion of Senator LOURIE

S. 344 (Word version) -- Senators McConnell, Rankin, Elliott, Knotts, Malloy, Hawkins and Vaughn: A BILL TO AMEND SECTION 38-73-520, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RATE FILINGS REQUIRED, SO AS TO REQUIRE WORKERS' COMPENSATION INSURERS TO FILE WITH THE DEPARTMENT OF INSURANCE THEIR LOSS COSTS MULTIPLIERS; TO AMEND THE 1976 CODE BY ADDING SECTION 28-73-525 SO AS TO PROVIDE THE TIME FRAME IN WHICH WORKERS' COMPENSATION INSURERS MUST FILE THEIR LOSS COSTS MULTIPLIERS AND TO FURTHER PROVIDE THE MINIMUM INFORMATION THAT MUST BE INCLUDED IN THEIR FILINGS; TO AMEND SECTION 38-73-960, RELATING TO EFFECTIVE DATES OF PROPERTY AND CASUALTY RATE FILINGS, SO AS TO EXCLUDE WORKERS' COMPENSATION LOSS COSTS MULTIPLIERS FROM THOSE PROVISIONS; TO AMEND THE 1976 CODE BY ADDING SECTION 38-73-965 SO AS TO PROVIDE THAT THE EFFECTIVE DATE OF FILINGS FOR WORKERS' COMPENSATION LOSS COSTS MULTIPLIERS ARE GOVERNED BY SECTION 38-73-525; AND TO AMEND SECTION 38-73-990, RELATING TO THE DISAPPROVAL OF FILINGS, SO AS TO PROVIDE THAT THE DIRECTOR OR HIS OR HER DESIGNEE HAS THE AUTHORITY TO DISAPPROVE ANY WORKERS' COMPENSATION RATES AT ANY TIME AFTER THEY BECOME EFFECTIVE IF HE OR SHE DETERMINES THE RATES DO NOT MEET THE REQUIREMENTS OF CHAPTER 73 OF TITLE 38.

On motion of Senator LOURIE, with unanimous consent, the Bill was carried over.

S. 425 (Word version) -- Senators Sheheen, Vaughn and Hutto: A BILL TO AMEND SECTION 56-3-1910, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ISSUANCE OF SPECIAL LICENSE TAGS TO CERTAIN HANDICAPPED PERSONS, SO AS TO DELETE THE TERM "LICENSE TAG" AND REPLACE IT WITH THE TERM "LICENSE PLATE", AND TO REVISE THE CRITERIA FOR THE ISSUANCE OF THE LICENSE PLATE; TO AMEND SECTION 56-3-1950, AS AMENDED, RELATING TO THE DEFINITION OF THE TERM "HANDICAPPED", AND THE REQUIREMENT THAT A LICENSED PHYSICIAN SHALL CERTIFY THAT A PERSON'S TOTAL AND PERMANENT DISABILITY SUBSTANTIALLY IMPAIRS HIS ABILITY TO WALK, SO AS TO REVISE THE DEFINITION OF THE TERM "HANDICAPPED" AND TO DELETE THE PROVISION RELATING TO THE CERTIFICATION OF A PERSON WHO IS TOTALLY AND PERMANENTLY DISABLED; TO AMEND SECTION 56-3-1960, AS AMENDED, RELATING TO FREE PARKING FOR HANDICAPPED PERSONS, AND THE ISSUANCE AND DISPLAY OF HANDICAPPED LICENSE PLATES AND PLACARDS, SO AS TO DELETE THE PROVISION THAT PROVIDES FOR THE ISSUANCE OF HANDICAPPED LICENSE PLATES, AND TO REVISE THE PROVISIONS REGARDING THE CONTENT, ISSUANCE PROCEDURE, AND DISPLAY OF HANDICAPPED PLACARDS; TO AMEND SECTION 56-3-1965, RELATING TO MUNICIPALITIES DESIGNATING PARKING SPACES FOR HANDICAPPED PERSONS, SO AS TO REVISE THE PROCEDURES THAT ALLOW A HANDICAPPED PERSON TO PARK IN METERED OR TIMED PARKING PLACES WITHOUT BEING SUBJECT TO PARKING FEES OR FINES; AND TO AMEND SECTION 56-3-1971, AS AMENDED, RELATING TO THE ISSUANCE OF A UNIFORM PARKING VIOLATION TICKET, SO AS TO ALLOW CERTAIN VOLUNTEERS TRAINED BY A LAW ENFORCEMENT AGENCY TO ISSUE THESE TICKETS.

On motion of Senator SHEHEEN, with unanimous consent, the Bill was carried over.

THE CALL OF THE UNCONTESTED CALENDAR HAVING BEEN COMPLETED, THE SENATE PROCEEDED TO THE MOTION PERIOD.

On motion of Senator MARTIN, the Senate agreed to dispense with the Motion Period.

THE SENATE PROCEEDED TO THE SPECIAL ORDERS.

S. 332 (Word version) -- Senators Martin, Ritchie and Vaughn: A BILL TO AMEND CHAPTER 55, TITLE 38 OF THE 1976 CODE, RELATING TO THE CONDUCT OF THE INSURANCE BUSINESS, TO CLARIFY THE DEFINITION OF "FALSE STATEMENT AND MISREPRESENTATION", TO INCREASE ITS PENALTIES; AND TO AUTHORIZE THE ATTORNEY GENERAL TO HIRE A FORENSIC ACCOUNTANT FOR THE INSURANCE FRAUD DIVISION; TO AMEND TITLE 42, RELATING TO WORKERS' COMPENSATION, TO ESTABLISH THE EMPLOYEE'S BURDEN OF PROOF AND FURTHER EXCLUDE CERTAIN CONDITIONS AND EVENTS FROM "PERSONAL INJURY" AND "ACCIDENT", TO ESTABLISH WHEN A REPETITIVE TRAUMA INJURY MAY BE COMPENSABLE AND TO PROVIDE NOTICE AND FILING PROVISIONS, TO ADD CERTAIN EXEMPTIONS, TO LIMIT THE DISABILITY AWARD IN CERTAIN SITUATIONS, TO PROVIDE THAT AN EMPLOYEE SEEKING TREATMENT IS CONSIDERED TO HAVE GIVEN CONSENT FOR THE RELEASE OF MEDICAL RECORDS, TO REDUCE THE SECOND INJURY FUND ASSESSMENT FORMULA TO ONE HUNDRED AND THIRTY-FIVE PERCENT, TO PROVIDE NOTICE PROVISIONS, AND TO INCREASE THE NUMBER OF WEEKS TO ONE HUNDRED AND FOUR FOR SECOND INJURY FUND REIMBURSEMENT ELIGIBILITY. (ABBREVIATED TITLE)

The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Judiciary.

Senator MARTIN, chairman of the subcommittee, was recognized to speak on the Bill.

On motion of Senator MARTIN, with unanimous consent, the committee amendment was adopted as follows:

The Judiciary Committee proposed the following amendment (JUD0332.124), which was adopted:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

SECTION   1.   Section 38-55-530(D) of the 1976 Code is amended to read:

"(D)   'False statement and or representation' means a statement or representation made by a person that is false, material, made with the person's knowledge of the falsity of the statement or representation, and made with the intent of obtaining or causing another to obtain or attempting to obtain or causing another to obtain an undeserved economic advantage or benefit or made with the intent to deny or cause another to deny any benefit or payment in connection with an insurance transaction, and such shall constitute fraud. 'False statement or misrepresentation' specifically includes, but is not limited to, an intentional:

(1)   false report of business activities;

(2)   miscount or misclassification by an employer of its employees;

(3)   failure to timely reduce reserves;

(4)   failure to account for Second Injury Fund reimbursements or subrogation reimbursements; or

(5)   failure to provide verifiable information to public or private rating bureaus and the Department of Insurance.

An undeserved economic benefit or advantage includes, but is not limited to, a favorable insurance premium, payment schedule, insurance award, or insurance settlement."

SECTION   2.   Section 38-55-540 of the 1976 Code is amended to read:

"Section 38-55-540.   (A)   Any A person or insurer who knowingly makes a false statement or misrepresentation, and any other person knowingly, with an intent to injure, defraud, or deceive, or who assists, abets, solicits, or conspires with such a person or insurer to make a false statement or misrepresentation, is guilty of a:

(1)   misdemeanor, for a first offense violation, if the amount of the economic advantage or benefit received is less than one thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed less than one hundred nor more than five hundred dollars or by imprisonment imprisoned not to exceed more than thirty days;

(2)   misdemeanor, for a first offense violation, if the amount of the economic advantage or benefit received is one thousand dollars or more but less than ten thousand dollars. Upon conviction, the person must be punished by a fine fined not to exceed less than two thousand nor more than fifty ten thousand dollars or by imprisonment for a term imprisoned not to exceed more than three years, or by both, such fine and imprisonment;

(3)   felony, for a first offense violation, if the amount of the economic advantage or benefit received is ten thousand dollars or more but less than fifty thousand dollars. Upon conviction, the person must be fined not less than ten thousand nor more than fifty thousand dollars or imprisoned not more than five years, or both;

(4)   felony, for a first offense violation, if the amount of the economic advantage or benefit received is fifty thousand dollars or more. Upon conviction, the person must be fined not less than twenty thousand nor more than one hundred thousand dollars or imprisoned not more than ten years, or both;

(3)(5)   felony, for a second or subsequent violation, regardless of the amount of the economic advantage or benefit received. Upon conviction, the person must be punished by a fine fined not to exceed fifty less than twenty thousand nor more than one hundred thousand dollars or by imprisonment for a term imprisoned not to exceed more than ten years, or by both, such fine and imprisonment.

(B)   In addition to the criminal penalties set forth in subsection (A), Any a person or insurer convicted under pursuant to the provisions of this section must be ordered by the court to make full restitution to the a victim or victims for any economic advantage or benefit which has been obtained by the person or insurer as a result of that violation, and to pay the difference between any taxes owed and any taxes the person paid, if applicable."

SECTION   3.   Section 38-55-560 of the 1976 Code is amended by adding the following lettered subsection at the end to read:

"(E)   The Attorney General is authorized to hire, employ, and reasonably equip one forensic accountant, and this forensic accountant must be assigned to the Insurance Fraud Division of the Attorney General's Office. A person is not qualified to be hired as, and the Insurance Fraud Division shall not hire, a forensic accountant unless the person possesses and maintains a current license to engage in the practice of accounting pursuant to the provisions of Chapter 2, Title 40."

SECTION   4.   Section 42-1-360 of the 1976 Code is amended to read:

"Section 42-1-360.   This Title shall title does not apply to:

(1)   Casual casual employees, as defined in Section 42-1-130, and Federal employees in this State;

(2)   Any any person who has regularly employed in service less than four employees in the same business within the State or who had a total annual payroll during the previous calendar year of less than three thousand dollars regardless of the number of persons employed during that period;

(3)   Textile Hall Corporation, an eleemosynary corporation whose principal object is the organizing and production of the Southern Textile Exposition;

(4)(3)   State state and county fair associations;, unless any such employer voluntarily elects to be bound by this title, as provided by Section 42-1-380.;

(4)   Agricultural agricultural employees;, unless the agricultural employer voluntarily elects to be bound by this title, as provided by Section 42-1-380.;

(5)   railroads, railroad employees, railway express companies, or railway express company employees; nor shall this title be construed to repeal, amend, alter, or affect in any way the laws of this State relating to the liability of railroads or railway express companies for injuries to their respective employees;

(6)   persons engaged in selling agricultural products for the producers thereof on commission or for other compensation, paid by the producers, when the product is prepared for sale by the producer;

(7)   licensed real estate sales persons engaged in the sale, leasing, or rental of real estate for a licensed real estate broker on a straight commission basis and who has signed a valid independent contractor agreement with the broker;

(8)   federal employees in this State;

(9)(a)   independent contractors engaged by a principal who have signed a valid independent contractor agreement with the principal;

(b)   a valid independent contractor agreement must be made at or before the time the contract for the work is made and shall:

(i)     be in writing;

(ii)   state that the independent contractor assumes the responsibilities of an employer for the performance of work;

(iii)   contain the signatures of both parties;

(iv)   indicate the date the agreement was made, the term for which the agreement will be effective, the estimated number of workers affected by the agreement, the federal tax identification or social security number of the parties; and

(v)   be provided to the insurer of the principal upon request;

(10)   an individual who owns a tractor-trailer, tractor or other vehicle, hereinafter referred to as 'vehicle', or holds a vehicle under lease and who, under a valid independent contractor contract or lease, provides that vehicle and the individual's services as a driver to a motor carrier. Such an individual shall be considered an independent contractor and not an employee of the motor carrier under this title. The individual and the motor carrier to whom the individual contracts or leases the vehicle may mutually agree that the individual and/or workers will be covered under the motor carrier's workers' compensation policy or authorized self-insurance if the individual agrees to pay the contract amounts requested by the motor carrier. Under any such agreement, the independent contract and/or workers must be considered an employee of the motor carrier only for the purposes of this title and for no other purposes. As used in this subsection, an independent contractor is defined as a person who:

(a)   is responsible for the maintenance of the vehicle;

(b)   bears the principal burden of the vehicle's operating costs, including fuel, repairs, supplies, and personal expenses for the operator while on the road;

(c)   determines compensation on factors related to the work performed, including a percentage of any schedule of rates or mileage driven and not solely on the basis of the hours of time expended; and

(d)   enters into a valid independent contractor agreement as defined in subitem (9)(b) of this section, which specifies the relationship to be that of an independent contractor and not that of an employee."

SECTION   5.   Section 42-1-160 of the 1976 Code is amended to read:

"Section 42-1-160.   (A)   'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form, except when it results naturally and unavoidably from the accident and except such diseases as are compensable under the provisions of Chapter 11 of this title. In construing this section, an accident arising out of and in the course of employment shall include includes employment of an employee of a municipality outside the corporate limits of the municipality when the employment was ordered by a duly authorized employee of the municipality.

(B)   Stress, mental injuries, and mental illness arising out of and in the course of employment unaccompanied by physical injury and resulting in mental illness or injury is are not considered a personal injury unless it is established the employee establishes, by a preponderance of the evidence:

(1)   that the stressful employee's employment conditions causing the mental injury stress, mental injury, or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and

(2)   the medical causation between the stress, mental injury, or mental illness, and the stressful employment conditions by medical evidence.

(C)   Stress, mental injuries, and mental illness arising out of and in the course of employment unaccompanied by physical injury is are not considered compensable if it results they result from any event or series of events which is are incidental to normal employer/employee relations including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations, except when these actions are taken in an extraordinary and unusual manner.

(D)   Stress, mental injuries and mental illness alleged to have been aggravated by a work-related physical injury shall not be found compensable unless the aggravation is:

(a)   admitted by the employer/carrier;

(b)   noted in a medical record of an authorized physician that, in the physician's opinion, the condition is at least in part causally-related or connected to the injury or accident, whether or not the physician refers the employee for treatment of the condition;

(c)   found to be causally-related or connected to the accident or injury after evaluation by an authorized psychologist or psychiatrist; or

(d)   noted in a medical record or report of the employee's personal physician as causally-related or connected to the injury or accident and when such record or report is not the product of a referral to the physician by the employee's attorney.

(E)   In medically complex cases, an employee must establish by medical evidence the causation between the injury and the accident. If the medical evidence is conflicting or inconclusive, the commissioner may seek additional competent evidence, including lay testimony, to determine causation. For purposes of this subsection, 'medically complex cases' means sophisticated cases requiring surgical intervention or other highly scientific techniques for diagnosis or treatment.

(F)   The word 'accident' as used in this title must not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously, or at frequent intervals in the course of such employment, over extended periods of time. Any injury or disease attributable to such causes must be compensable only if culminating in a compensable repetitive trauma injury pursuant to Section 42-1-172 or an occupational disease pursuant to the provisions of Chapter 11 of this title.

(G)   As used in this title, 'medical evidence' means expert opinion, expert testimony, documents, or other material that is offered or stated to a reasonable degree of medical certainty by a licensed health care provider."

SECTION   6.   The 1976 Code is amended by adding:

"Section 42-1-172.   (A)   'Repetitive trauma injury' means an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events. Compensability of such repetitive trauma injuries shall only be determined under the provisions of this statute.

(B)   No injury shall be considered a compensable repetitive trauma injury unless a commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection that is supported by medical evidence between the repetitive activities on the job and the injury.

(C)   A 'repetitive trauma injury' shall be considered to arise out of employment only if it is reasonably apparent upon consideration of all the circumstances that there is a direct causal relationship between the condition under which the work is performed and the injury.

(D)   Upon reaching maximum medical improvement, if the employee returns to work with the employer in whose employ such repetitive trauma injury was suffered, the employee shall be entitled to benefits under Section 42-9-20 or Section 42-9-30. Upon reaching maximum medical improvement, if the employee does not return to work with the employer in whose employ such repetitive trauma injury was suffered, the employee shall be entitled to benefits under Section 42-9-10, 42-9-20, or 42-9-30. Medical benefits for compensable repetitive trauma injuries shall be as provided elsewhere in this title."

SECTION   7.   Section 42-9-30 of the 1976 Code is amended to read:

"Section 42-9-30.   (A)   In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein, to wit as follows:

(1)   for the loss of a thumb, sixty-six and two-thirds percent of the average weekly wages during sixty-five weeks;

(2)   for the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of the average weekly wages during forty weeks;

(3)   for the loss of a second finger, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;

(4)   for the loss of a third finger, sixty-six and two-thirds percent of the average weekly wages during twenty-five weeks;

(5)   for the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of the average weekly wages during twenty weeks;

(6)   the loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger and the compensation shall be for one half of the periods of time above specified;

(7)   the loss of more than one phalange shall be considered the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;

(8)   for the loss of a great toe, sixty-six and two-thirds percent of the average weekly wages during thirty-five weeks;

(9)   for the loss of one of the toes other than a great toe, sixty-six and two-thirds percent of the average weekly wages during ten weeks;

(10)   the loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe and the compensation shall be for one half the periods of time above specified;

(11)   the loss of more than one phalange shall be considered as the loss of the entire toe;

(12)   for the loss of a hand, sixty-six and two-thirds percent of the average weekly wages during one hundred and eighty-five weeks;

(13)   for the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;

(14)   for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;

(15)   for the loss of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;

(16)   for the loss of an eye, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;

(17)   for the complete loss of hearing in one ear, sixty-six and two-thirds percent of the average weekly wages during eighty weeks; and for the complete loss of hearing in both ears, sixty-six and two-thirds percent of the average weekly wages during one hundred sixty-five weeks, and the commission shall by regulation provide for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards. ;

(18)   total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye. The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of the payments herein provided for total loss as such partial loss bears to total loss.;

(19)   for the total loss of use of the back in cases where the loss of use is forty-nine percent or less, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks. In cases where there is fifty percent or more loss of use of the back, sixty-six and two-thirds percent of the average weekly wages during five hundred weeks. The compensation for partial loss of use of the back shall be such proportions of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is fifty percent or more loss of use of the back, in which event the injured employee shall be deemed presumed to have suffered total and permanent disability and compensated therefor under paragraph two of Section 42-9-10. The presumption set forth in this item is rebuttable;

(20)   for the total or partial loss of, or loss of use of, a member, organ or part of the body not covered herein and not covered under Sections 42-9-10 or 42-9-20, sixty-six and two thirds of the average weekly wages not to exceed five hundred weeks. The commission shall may by regulations prescribe the ratio which the partial loss or loss or partial loss of use of a particular member, organ or body part bears to the whole man, basing such ratios on accepted medical standards considering the medical impairment rating pursuant to the most recent version of the American Medical Association's 'Guide to the Evaluation of Permanent Impairment' or other accepted medical treatise and other factors set out in Section 42-9-5, and such ratios shall determine the benefits payable under this subsection.;

(21)   proper and equitable benefits shall be paid for serious permanent disfigurement of the face, head, neck or other area normally exposed in employment, not to exceed fifty weeks. Where benefits are paid or payable for injury to or loss of a particular member or organ under other provisions of this title, no additional benefits shall be paid under this paragraph, except that; however, disfigurement shall also include includes compensation for serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation.

The weekly compensation payments referred to in this section shall are all be subject to the same limitations as to maximum and minimum limitations as set out forth in Section 42-9-10."

SECTION   8.   The 1976 Code is amended by adding:

"Section 42-9-5.   Any award made pursuant to this title must be based upon specific and written detailed findings of fact substantiating the award, including the consideration of each of the following and a finding on each:

(1)   medical impairment rating(s) pursuant to the latest version of the American Medical Association's 'Guide to the Evaluation of Permanent Impairment' or other accepted medical treatise or authority;

(2)   work restrictions imposed upon the employee;

(3)   results of any evaluative testing or assessment that address the employee's causally related medical pathology and functional limitations, giving due consideration to whether the employee gave a good and consistent effort;

(4)   surgical outcome, if applicable;

(5)   education of the employee;

(6)   employee's work history and experience;

(7)   employee's transferable skills;

(8)   employee's job training;

(9)   employee's physical capacity;

(10)   vocational evaluation report(s), if submitted;

(11)   testimony of the witnesses including, but not limited to, the employee;

(12)   if the injury is to an upper extremity, whether the employee is left hand dominant or right hand dominant;

(13)   whether the injured employee takes prescription medication prescribed by the authorized treating physician, and any effect that the medication has on the employee's ability to work;

(14)   employee's age;

(15)   availability of work in locality for transferable skills, re-training, and residual capacity;

(16)   pain and swelling from the injury on a recurring basis;

(17)   need and dependency for durable medical equipment; and

(18)   any other factor needed by the commissioner to reach a decision in the case.

For purposes of this section, award does not include settlement agreements."

SECTION   9.   Section 42-11-10 of the 1976 Code is amended to read:

"Section 42-11-10.   (A)   The words 'occupational disease' mean a disease arising out of and in the course of employment which is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease shall be deemed considered an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of continuous exposure to the normal working conditions thereof.

(B)   No disease shall be deemed considered an occupational disease when it:

(1)   It does not result directly and naturally from exposure in this State to the hazards peculiar to the particular employment;

(2)   It results from exposure to outside climatic conditions;

(3)   It is a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside of his employment;

(4)   It is one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and a natural incident of an occupational disease or unless there is a constant continuous exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation;

(5)   It is any disease of the cardiac, pulmonary, or circulatory system not resulting directly from abnormal external gaseous pressure exerted upon the body or the natural entrance into the body through the skin or natural orifices thereof of foreign organic or inorganic matter under circumstances peculiar to the employment and the processes utilized therein; or

(6)   It is any chronic disease of the skeletal joints.

(C)   When an occupational disease has been found to arise directly and naturally from exposure in this State to hazards peculiar to the particular employment, the employee shall establish by medical evidence he has contracted the disease.

(D)   No compensation shall be payable for any occupational disease unless the employee suffers a disability as described in Section 42-9-10 or Section 42-9-20."

SECTION   10.   Section 42-15-40 of the 1976 Code is amended to read:

"Section 42-15-40.   The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident, or if death resulted from the accident, within two years of the date of death. However, for occupational disease claims the two-year period does not begin to run until the employee concerned has been diagnosed definitively as having an occupational disease and has been notified of the diagnosis. For the death or injury of a member of the South Carolina National Guard, as provided for in Section 42-7-67, the time for filing a claim is two years after the accident or one year after the federal claim is finalized, whichever is later. The filing required by this section may be made by registered mail, and the registry service within the time periods set forth in this section constitutes timely filing. For a 'repetitive trauma injury' as defined in Section 42-1-172, the right to compensation is barred unless a claim is filed with the commission within two years after the last date of injurious exposure. This section applies regardless of whether the employee was aware that his repetitive trauma injury was the result of his employment."

SECTION   11.   Section 42-15-60 of the 1976 Code is amended to read:

"Section 42-15-60.   (A)   Medical The employer must provide medical, surgical, hospital, and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from the date of an injury to effect a cure or give relief, and for such additional time as in the judgment of the Commission will tend to lessen the period of disability as recommended by the authorized treating physician as being medically necessary or prudent and, in addition thereto, such original artificial members as may be reasonably necessary at the end of the healing period shall be provided by the employer. In case of a controversy arising between employer and employee, the commission may order such further medical, surgical, hospital, or other treatment as may be medically necessary or prudent in the discretion of the commission be necessary. During the whole or any part of the remainder of disability resulting from the injury the employer may, at his its own option, continue to furnish or cause to be furnished, free of charge to the employee, and the employee shall accept an attending physician and any medical care or treatment that may be considered medically necessary or prudent by such attending physician, unless otherwise ordered by the commission for good cause shown and, in addition, such surgical and hospital service and supplies as may be deemed considered necessary by such attending physician or the commission.

(B)(1)   When a claim is settled on the commission's Agreement for Permanent Disability/Disfigurement Compensation form, the employer is not required to provide further medical treatment or medical modalities after one year from the date of full payment of the settlement unless the form specifically provides otherwise.

(2)   Each award of permanency as ordered by the single commissioner or by the commission must contain a finding as to whether or not further medical treatment or modalities must be provided to the employee. If the employee is entitled to receive such benefits, the medical treatment or modalities to be provided must be set forth with as much specificity as possible in the single commissioner's order or the commission's order.

(3)   In no case shall an employer be required to provide medical treatment or modalities in any case where there is a lapse in treatment of the employee by an authorized physician in excess of one year unless:

(a)   the settlement agreement or commission order provides otherwise; or

(b)   the employee has made reasonable attempts to obtain further treatment or modality from an authorized physician, but through no fault of the employee's own, is unable to obtain such treatment or modalities.

(C)   The refusal of an employee to accept any medical, hospital, surgical, or other treatment when provided by the employer or ordered by the commission, shall bar such employee from further compensation until such refusal ceases; and no compensation shall at any time be paid for the period of suspension refusal unless in the opinion of the commission the circumstances justified the refusal, in which case the commission may order a change in the medical or hospital service. If in an emergency, on account of the employer's failure to provide the medical care as specified in this section, a physician other than provided by the employer is called asked to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the commission.

(D)   In cases in which total and permanent disability results of paraplegia, quadriplegia, or physical brain damage, reasonable and necessary nursing services, medicines, prosthetic devices, sick travel, medical, hospital, and other treatment or care causally related to the paraplegia, quadriplegia, or physical brain damage, shall be paid during the life of the injured employee, without regard to any limitation in this title including the maximum compensation limit. In addition, in cases of partial permanent partial disability, prosthetic devices shall be also furnished during the life of the injured employee or so for as long as they such devices are necessary."

SECTION   12.   Section 42-17-90 of the 1976 Code is amended to read:

"Section 42-17-90.   (A)   Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may review any award and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the order changing the award. No such review shall affect such award as regards any moneys paid and no such review shall be made after twelve months one year from the date of the last payment of compensation pursuant to an award under this title.

(B)   A motion or application for change in condition involving a repetitive trauma injury must be made within one year from the date of the last compensation payment for the repetitive trauma injury. Any filing not made within this one-year period shall be considered untimely and shall not be reviewed.

(C)   A motion or application for change in condition involving an occupational disease must be made within one year from the date of the last compensation payment for the occupational disease. Any filing not made within this one-year period shall be considered untimely and shall not be reviewed."

SECTION   13.   The 1976 Code is amended by adding:

"Section 42-1-700.   (A)   Injured or affected body parts and conditions shall be set forth with as much specificity as possible on the commission's Employee's Notice of Claim and/or Request for Hearing form, hereinafter referred to as Form 50. A Form 50 shall not describe the injured body part(s) or condition(s) as 'whole person', 'whole body', 'all body parts', or other similar language unless the injured employee died as a result of the accident. No hearing shall be held on a Form 50 which does not conform to the requirements of this subsection.

(B)   Nothing in this section prohibits a commissioner from determining the compensability of a body part or condition not listed or described on a Form 50 if:

(1)   the body part or condition is proved by a preponderance of the evidence to have arisen from the injury or injuries out of and in the course of employment as set forth on the Form 50;

(2)   it is proven to the satisfaction of the commissioner that the employee had no knowledge of the injury or condition on the date of the completion of the Form 50. However, the employee is required to amend the Form 50 upon discovery of the injury or condition within a reasonable time period pursuant to regulation; or

(3)   in the case of a represented employee, the body part or condition is set forth on the commission's Pre-Hearing Brief form, and such pre-hearing brief is timely filed with the commission and timely served upon the parties.

(C)   A Form 50 must be signed by an attorney if the employee is represented, verifying that the contents of the form are accurate and true to the best of the attorney's knowledge. If the employee is not represented, the employee who signs a Form 50 must verify that the contents of the form are accurate and true to the best of the employee's knowledge."

SECTION   14.   The 1976 Code is amended by adding:

"Section 42-1-705.   (A)   The commission's Employer's Answer to Request for Hearing form, hereinafter referred to as Form 51, must describe with as much specificity as possible the defenses to be relied upon by the defendants. A Form 51 shall not state that 'all defenses apply' or other similar language, unless such is actually the case. Failure to timely file a Form 51 constitutes an admission of the facts contained in the Form 50, unless the commission determined the failure to timely file a Form 51 is attributable to excusable neglect. A Form 51 which does not conform to the requirements of this subsection shall not be considered at a hearing.

(B)   Nothing in this section prohibits a commissioner from considering a defense not listed on a Form 51 if:

(1)   it is proven to the satisfaction of the commissioner that the defendants had no knowledge of the facts supporting the defense on the date of the completion of the Form 51; and

(2)   in the case of represented defendants, the defense omitted on the Form 51 is set forth on the commission's Pre-Hearing Brief form, and such brief is timely filed with the commission and timely served upon the parties.

(C)   A Form 51 must be signed by an attorney, verifying that the contents of the form are accurate and true to the best of the attorney's knowledge. If the employer is unrepresented and completes a Form 51, the employer must sign the form, verifying that the contents are accurate and true to the best of the employer's knowledge."

SECTION   15.   Section 42-3-20 of the 1976 Code is amended to read:

"Section 42-3-20.   (A)   The commission shall consist of seven nine members appointed by the Governor with the advice and consent of the Senate for terms of six years and until their successors are appointed and qualify. In the event the Governor does not fill a vacancy within sixty days after the vacancy occurs, the commission by majority vote shall deputize a person with suitable experience, training, and knowledge to serve as a deputy commissioner to serve until such time as the Governor fills the vacancy. As soon as the Governor appoints a replacement who is confirmed by the Senate, the deputy commissioner shall immediately cease to serve in that office. While serving as a deputy commissioner, the deputy commissioner has the power and authority to swear or cause the witnesses to be sworn and shall transmit all testimony and shall make a recommendation to the commission for an award. The commission must determine the award based upon testimony received by the deputy commissioner and may consider the deputy commissioner's recommendation.

(B)   The Governor, with the advice and consent of the Senate, shall designate one commissioner as chairman for a term of two years, and the chairman may serve two terms in during his six-year term but not consecutively. At the conclusion of a commissioner's two-year term as chairman, the Governor shall appoint another chairman. If the Governor does not appoint another chairman at the expiration of the two-year term, a majority of the commission shall elect from among their members an interim chairman who shall serve until the Governor appoints another chairman other than the one last appointed. A deputy commissioner is not eligible to serve as chairman.

(C)   The commissioners shall hear and determine all contested cases, conduct informal conferences when necessary, approve settlements, hear applications for full Commission commission reviews, and handle such other matters as may come before the department for judicial disposition. Full Commission commission reviews shall be conducted by six all commissioners only, with the original hearing commissioner not sitting at such reviews. When one commissioner is temporarily incapacitated or a vacancy exists on the Commission, reviews may be conducted by the five remaining commissioners but in such cases decisions of the hearing commissioner shall not be reversed except on the vote of at least four commissioners; provided, however, that effective July 1, 1981 full Commission reviews may be conducted, excluding the original hearing commissioner, or by three-member panels composed of three commissioners, excluding the original hearing commissioner, appointed by the chairman excluding the original hearing commissioner. The chairman, with unanimous approval of a majority of the other commissioners, shall determine which full commission reviews shall be assigned to panels. The decisions of such three-member panels shall have the same force and effect as nonpanel full commission reviews."

SECTION   16.   Section 42-3-60 of the 1976 Code is amended to read:

"Section 42-3-60.   Each commissioner shall be authorized to employ a secretary and a court reporter an administrative assistant to serve at his the commissioner's pleasure."

SECTION   17.   Section 42-3-230 of the 1976 Code is amended to read:

"Section 42-3-230.   The Commission commisson may from time to time, as it may deem consider advisable, destroy any of its inactive files that are at least five fifteen years old. The commission may maintain these files in either paper or electronic form. No files of the Commission commission shall be deemed considered inactive until the Commission commission is satisfied that they the files will be of no further use."

SECTION   18.   Section 42-9-60 of the 1976 Code is amended to read:

"Section 42-9-60.   No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another. In the event that any person claims that the provisions of this section are applicable in any case, the burden of proof shall be upon such person."

SECTION   19.   Section 42-9-390 of the 1976 Code is amended to read:

"Section 42-9-390.   Nothing contained in this chapter may be construed so as to prevent settlements made by and between an employee and employer so as long as the amount of compensation and the time and manner of payment are in accordance with the provisions of this title. A copy of the settlement agreement must be filed by the employer with and approved by only one member of the commission if the employee is represented by an attorney. If the employee is not represented by an attorney, a copy of the settlement agreement must be filed by the employer with and approved by four members of the commission. The employer must file a copy of the settlement agreement with the commission if each party is represented by an attorney. If the employee is not represented by an attorney, a copy of the settlement agreement must be filed by the employer with the commission and approved by one member of the commission."

SECTION   20.   Section 42-15-20 of the 1976 Code is amended to read:

"Section 42-15-20.   (A)   Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident and the employee shall not be entitled to physician 's fees nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative, had knowledge of the accident or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud of deceit of some third person.

(B)   No Except as provided in subsection (C), no compensation shall be payable unless such notice is given within ninety days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the commission for not giving such timely notice, and the commission is satisfied that the employer has not been prejudiced thereby.

(C)   In the case of repetitive trauma, notice must be given by the employee within ninety days of the date the employee discovered, or could have discovered by exercising reasonable diligence, that his condition is compensable, unless reasonable excuse is made to the satisfaction of the commission for not giving timely notice, and the commission is satisfied that the employer has not been unduly prejudiced thereby."

SECTION   21.   Section 42-15-95 of the 1976 Code is amended to read:

"Section 42-15-95.   (A)   Any employee who seeks treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title shall be considered to have given his consent for the release of medical records relating to such examination or treatment under any applicable law or regulation. All existing information compiled by a health care facility, as defined in Section 44-7-130, or a health care provider licensed pursuant to Title 40 pertaining directly to a workers' compensation claim must be provided to the insurance carrier, the employer, the employee, their respective attorneys or certified rehabilitation professionals, or the South Carolina Workers' Compensation Commission, within fourteen days after receipt of written request. A health care facility and a health care provider may charge a fee for the search and duplication of a medical record, but the fee may not exceed sixty-five cents per page for the first thirty pages and fifty cents per page for all other pages, and a clerical fee for searching and handling not to exceed fifteen dollars per request plus actual postage and applicable sales tax. The facility or provider may charge a patient or the patient's representative no more than the actual cost of reproduction of an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead costs associated with the duplication. in accordance with regulations promulgated by the Workers' Compensation Commission. Fee schedules established through regulations of the Workers' Compensation Commission shall apply only to claims under Title 42. If a treatment facility or physician health care provider fails to send the requested information within forty-five thirty days after receipt of the request, the person or entity making the request may apply to the commission for an appropriate penalty payable to the commission, not to exceed two hundred dollars.

(B)   The insurance carrier, employer, employee, their respective attorneys, certified rehabilitation professionals, or the commission may submit a written request to the health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title for a written response to the following questions, or completion of a form promulgated by the commission, within fourteen days after the written request:

(1)   What is the employee's injury, disease, or condition for which treatment is being rendered?

(2)   What is the diagnosis of the employee's injury, disease, or condition?

(3)   Did the employee's employment cause, aggravate, accelerate, exacerbate, or contribute to the injury, disease, or condition for which treatment is being rendered?

(4)   What treatment has been rendered?

(5)   Did the employee have any preexisting injury, disease, or condition that was aggravated, accelerated, or exacerbated by the employee's employment?

(6)   What treatment do you recommend?

(7)   What is the employee's temporary work status and/or work restrictions?

(8)   If at maximum medical improvement, the date maximum medical improvement achieved and what degree permanent impairment sustained?

(9)   If at maximum medical improvement, what medical treatment is necessary to provide relief or maintain work status or level of function?

(10)   If at maximum medical improvement, what is the employee's permanent work status, employment disability, or permanent work restrictions?

The employee must be provided with a copy of the written questions at the same time the questions are submitted to the health care provider. If it is not practicable to provide the employee with a copy at the same time as the health care provider, the employee must be provided with a copy of the questions within two business days after submission of the questions to the health care provider. The employee must also be provided with a copy of the response by the health care provider. A reasonable fee for answering the questions may be charged, in accordance with the established practice of health care providers in the district where the claim is pending, to be paid by the party requesting the responses.

(C)   A health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought under the provisions of this title may discuss or communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the insurance carrier, employer, their respective attorneys or certified rehabilitation professionals, or the commission without the employee's consent. The employee must be:

(1)   notified by the employer, carrier, or its representative requesting the discussion or communication with the health care provider in a timely fashion, in writing or orally, of the discussion or communication. This notification must occur prior to the actual discussion or communication if the physician, surgeon, or other health care provider knows the discussion or communication will occur in the near future;

(2)   advised by the employer, carrier, or its representative requesting the discussion or communication with the health care provider of the nature of the discussion or communication prior to the discussion or communication; and

(3)   provided access to any medical documents or other information to be shown or disclosed to or by the physician, surgeon, other health care provider prior to the discussion or communication.

Any discussion or communication must not conflict with or interfere with the employee's examination or treatment.

A reasonable fee for legal discussions or communications may be charged at a rate in accordance with the established practice of health care providers in the district where the claim is pending, to be paid by the party requesting the discussion or communication.

Any discussions, communications, medical reports, or opinions obtained in accordance with this section will not constitute a breach of the physician's duty of confidentiality.

(D)   Any discussions, communications, medical reports, or opinions obtained in violation of this section must be excluded from any proceedings under the provisions of this title."

SECTION   22.   Section 42-17-40 of the 1976 Code is amended to read:

"Section 42-17-40.   (A)   The commission or any of its members shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary timely manner. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, must be filed with the record of the proceedings, and a copy of the award decision must immediately be sent to the parties in dispute.

In rendering decisions in cases pursuant to this title, the commissioner shall consider all the evidence submitted at the hearing and not only those portions highlighted or excerpted by the parties for the commissioner's review, unless as otherwise agreed to by the parties. The parties may be heard by a deputy, in which event he shall swear or cause the witnesses to be sworn, and shall transmit all testimony to the commission for its determination and award.

(B)   In the event any commissioner or member of his family residing in the commissioner's household or any employee of the Workers' Compensation Commission commission receives sustains an injury in the course of employment, the case must be heard and determined by the circuit court judge in the county in which the injury occurred. The clerk of court shall docket these cases in the file book for the court of common pleas, and these cases must be heard in that court. These cases may be called up for trial out of their order by either party. An appeal from an order of the circuit court judge, pursuant to this subsection, shall be taken in the manner provided by the South Carolina Appellate Court Rules. If the order is not appealed, payment Payment of an award must be made as provided in Section 42-17-60. However, this subsection does not apply with respect to claims involving medical benefits only; for claims solely involving medical benefits only, subsection (A) applies."

SECTION   23.   The 1976 Code is amended by adding:

"Section 42-3-175.   (A)(1)   If a claimant brings an action before the commission to enforce an order authorizing medical treatment or payment of benefits and the commission determines that an insurer, a self-insured employer, a self-insured fund, or an adjuster, without good cause, failed to authorize medical treatment and/or pay benefits when ordered to do so by the commission, the insurer, the self-insured employer, the self-insured fund, or the adjuster must pay the claimant's attorneys' fees and costs of enforcing the order. The commission may impose sanctions for willful disobedience of an order, including, but not limited to, a fine of up to five hundred dollars for each day of the violation.

(2)   The commission must notify the Department of Insurance of an insurer's or an adjuster's failure to authorize and pay benefits for medical treatment. If the Director of the Department of Insurance or his or her designee determines that there has been a violation of any provision of Title 38, he may impose penalties for each violation, including, but not limited to, administrative penalties pursuant to Section 38-2-10.

(B)(1)   If the commission discovers a pattern of an insurer failing to pay benefits pursuant to an award, as defined in item (2), the chairman must notify the Director of the Department of Insurance. The director or his or her designee must hold a hearing to determine if the insurer had good cause for nonpayment. If the director or his or her designee determines that nonpayment was intentional three or more times within a two-year period, the director may revoke the license of the insurer to do business in this State. If the director or his or her designee revokes the license of the insurer, he must take any steps he considers necessary for the protection of the insurer's policyholders in this State.

(2)   For purposes of this section, a pattern is established upon an insurer's failure to pay an award at least three times within a two-year period by failing to pay:

(a)   for individual claims;

(b)   for a claim in which the claimant had to request enforcement of an award; or

(c)   any combination of subitems (a) and (b).

(3)   All fines collected pursuant to this subsection must be submitted to the general fund."

SECTION   24.   Section 42-17-60 of the 1976 Code is amended to read:

"Section 42-17-60.   The award of the commission, as provided in Section 42-17-40, if not reviewed in due time, or an award of the commission upon such the review, as provided in Section 42-17-50, is conclusive and binding as to all questions of fact. However, either party to the dispute, within thirty days from the date of the award or within thirty days after receipt of notice to be sent by registered mail of the award, but not thereafter after whichever is the longest, may appeal from the decision of the commission to the court of common pleas of the county in which the alleged accident happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions appeals. Notice of appeal must state the grounds of the appeal or the alleged errors of law. In case of an appeal from the decision of the commission on questions of law, the appeal does not operate as a supersedeas and thereafter after that time the employer is required to make payment of the award weekly payments of compensation and to provide medical treatment ordered by the commission involved in the appeal or certification until the questions at issue have been fully determined in accordance with the provisions of this title. Interest accrues on an unpaid portion of the award at the legal rate of interest as established in Section 34-31-20(B) during the pendency of an appeal."

SECTION   25.   Section 42-5-40 of the 1976 Code is amended to read:

"Section 42-5-40.   Any employer required to secure the payment of compensation under this title who refuses or neglects to secure such compensation shall be punished by a fine of ten cents one dollar for each employee at the time of the insurance becoming due, but not less than one dollar ten dollars nor more than fifty one hundred dollars for each day of such refusal or neglect, and until the same ceases, and he shall be liable during continuance of such refusal or neglect to an employee either for compensation under this title or at law in an action instituted by the employee or his personal representative against such employer to recover damages for personal injury or death by accident and in any such action such employer shall not be permitted to defend upon any of the grounds mentioned in Section 42-1-510.

The fine provided in this section may be assessed by the commission in an open hearing with the right of review and appeal as in other cases. All fines collected pursuant to this section must be submitted to the general fund."

SECTION   26.   Section 1-23-600(D) of the 1976 Code is amended to read:

"(D)   An administrative law judge also shall preside over all appeals from final decisions of contested cases pursuant to the Administrative Procedures Act, Article I, Section 22, Constitution of the State of South Carolina, 1895, or another law, except that an appeal from a final order of the Public Service Commission and the State Ethics Commission is to the Supreme Court or the court of appeals as provided in the South Carolina Appellate Court Rules, an appeal from the Procurement Review Panel is to the circuit court as provided in Section 11-35-4410, an appeal from the Workers' Compensation Commission is to the circuit court court of appeals as provided in Section 42-17-60, and an appeal from the Employment Security Commission is to the circuit court as provided in Section 41-35-750."

SECTION   27.   Section 14-8-200(a) of the 1976 Code is amended to read:

"(a)   Except as limited by subsection (b) and Section 14-8-260, the court has jurisdiction over any case in which an appeal is taken from an order, judgment, or decree of the circuit court, family court, a final decision of an agency, or a final decision of an administrative law judge, or the final decision of the Workers' Compensation Commission. This jurisdiction is appellate only, and the court shall apply the same scope of review that the Supreme Court would apply in a similar case. The court has the same authority to issue writs of supersedeas, grant stays, and grant petitions for bail as the Supreme Court would have in a similar case. The court, to the extent the Supreme Court may by rule provide for it to do so, has jurisdiction to entertain petitions for writs of certiorari in post-conviction relief matters pursuant to Section 17-27-100."

SECTION   28.   (A)(1)   A South Carolina Workers' Compensation Study Committee is created to study other states' workers' compensation laws as they relate to awards.

(2)   The study committee must make a report of its findings to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. In preparing its report, the study committee must consider:

(a)   statutes, pending legislation, and case law in other states; and

(b)   information solicited from or provided by experts, studies, and scholarly articles regarding methods and limitations on workers' compensation awards and the effects on premiums and worker benefits.

Emphasis must be placed on states with objective standards for awards, including Florida, Minnesota and New Mexico.

(B)   The study committee must be composed of six members to be appointed as follows:

(1)   three members of the Senate to be appointed by the President Pro Tempore of the Senate; and

(2)   three members of the House of Representatives to be appointed by the Speaker of the House of Representatives.

(C)   The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall provide staffing for the study committee.

(D)   The study committee must render its report and recommendations to the President Pro Tempore of the Senate and the Speaker of the House no later than January 15, 2009, at which time the study committee must be dissolved."

SECTION   29.   The 1976 Code is amended by adding:

"Section 42-9-35.   (A)   If an employee has a permanent physical impairment or preexisting condition and incurs a subsequent disability from an injury arising out of and in the course of his employment, the commission may award compensation benefits for the combined disability of the permanent physical impairment or preexisting condition and the subsequent injury. The employee must establish by a preponderance of the evidence, including medical evidence, that the subsequent injury aggravated the permanent physical impairment or the preexisting condition or the permanent physical impairment or preexisting condition aggravates the subsequent injury. However, if the subsequent injury is limited to a single body part or member scheduled in Section 42-9-30, except the back, the subsequent injury must impair or affect another body part or system in order to obtain benefits in addition to those provided for in Section 42-9-30.

(B)   The provisions of this section apply whether or not the employer knows of the preexisting permanent disability.

(C)   On and after the effective date of this section, an employee who suffers a subsequent injury which affects a single body part or member injury set forth in Section 42-9-30 is limited to the recovery set forth in that section."

SECTION   30.   Section 42-9-150 of the 1976 Code is amended to read:

"Section 42-9-150.   If an employee has a permanent disability or has sustained a permanent injury in service in the Army or Navy of the United States that resulted from serving in the United States Armed Forces or in another employment other than that in which he receives a subsequent permanent injury by accident, such as specified in Section 42-9-30 or the second paragraph of Section 42-9-10, he shall be entitled to compensation only for the degree of disability which would have resulted from the later accident if the earlier disability or injury had not existed, except that such employee may receive further benefits as provided by Sections 42-7-310, 42-9-400 and 42-9-410 Title if his subsequent injury qualifies for additional benefits provided therein under Section 42-9-35."

SECTION   31.   Section 42-9-170 of the 1976 Code is amended to read:

"Section 42-9-170.   If an employee receives a permanent injury as specified in Section 42-9-30 or the second paragraph of Section 42-9-10 after having sustained another permanent injury in the same employment, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding five hundred weeks. If an employee has previously incurred permanent partial disability through the loss of a hand, arm, foot, leg, or eye and by subsequent accident incurs total permanent disability through the loss of another member, the employer's liability is for the subsequent injury only, except that such employee may receive further benefits as provided by Sections 42-7-310, 42-9-400 and 42-9-410 if his subsequent injury qualifies for additional benefits provided therein under the provisions of Section 42-9-35."

SECTION   32.   Sections 42-1-350, 42-1-370, 42-1-375, and 42-9-80 of the 1976 Code are repealed.

SECTION   1.   Section 38-73-495 of the 1976 Code is amended to read:

"Section 38-73-495.   The director or his designee may:

(1)   disapprove a previously approved rate for any classification for workers' compensation insurance upon a finding that the rate for that classification is excessive, inadequate, or unfairly discriminatory;

(2)   require the division of a particular classification into separate classifications, or the joining of separate classifications into one classification, upon a finding that such action is in the public interest;

(3)   direct that a particular risk be classified in a particular classification upon a finding that a risk is classified incorrectly;

(4)   disapprove an experience modification rate for workers' compensation insurance upon a finding that the rate is excessive, inadequate, or unfairly discriminatory. This includes an experience modification rate that fails to account for third party reimbursements, including the Second Injury Fund. Appeals regarding experience modification rates must first be exhausted through the National Council on Compensation Insurance's dispute resolution process prior to appealing with the Department of Insurance.

Appeals to the department must be filed within one year of policy expiration date or cancellation date, whichever comes first."

SECTION   2.   Section 42-7-310(d)(2) of the 1976 Code is amended to read:

"(2)   equitable assessments upon each carrier which, as used in this section, includes all insurance carriers, self-insurers, and the State Accident Fund. Each carrier shall make payments to the fund in an amount equal to that proportion of one hundred seventy-five percent one hundred thirty-five percent of the total disbursement made from the fund during the preceding fiscal year less the amount of net assets in the fund as of June thirtieth of the preceding fiscal year which the normalized premium of each carrier bore to the normalized premium of all carriers during the preceding calendar year. Each insurance carrier, self-insurer, and the State Accident Fund shall make payment based upon workers 'compensation normalized premiums during the preceding calendar year. The charge to each insurance carrier is a charge based upon normalized premiums. An employer who has ceased to be a self-insurer shall continue to be liable for any assessments into the fund on account of any benefits paid by him during such calendar year. Any assessment levied or established in accordance with this section constitutes a personal debt of every employer or insurance carrier so assessed and is due and payable to the Second Injury Fund when payment is called for by the fund. In the event of failure to pay any assessment upon the date determined by the fund, the employer or insurance carrier may immediately be assessed a penalty in an amount not exceeding ten percent of the unpaid assessment. If the employer or insurance carrier fails to pay the assessment and penalty, they shall be barred from any recovery from the fund on all claims without exception until the assessment and penalty are paid in full. The director may file a complaint for collection against the employer or insurance carrier in a court of competent jurisdiction for the assessment, penalty, and interest at the legal rate, and the employer/carrier is responsible for attorney's fees and costs. The penalty and interest under this subsection are payable to the Second Injury Fund. At the time of the filing of the complaint, the fund shall also notify the South Carolina Department of Insurance and the South Carolina Workers' Compensation Commission, and these government agencies shall take the appropriate legal and administrative action immediately."

SECTION   3.   Section 42-9-400 of the 1976 Code is amended to read:

"Section 42-9-400.   (a)   If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the and is caused by aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and medical benefits provided by this title; but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund as created by Section 42-7-310 for compensation and medical benefits in the following manner:

(1)   reimbursement of all compensation benefit payments payable subsequent to those payable for the first seventy-eight weeks following the injury.;

(2)   reimbursement of fifty percent of medical payments in excess of three thousand dollars during the first seventy-eight weeks following the injury and then reimbursement of all medical benefit payments payable subsequent to the first seventy-eight weeks following the injury; provided, however, in order to obtain reimbursement for medical expense during the first seventy-eight weeks following the subsequent injury, an employer or carrier must establish that his liability for medical payments is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone.

(b)   If the subsequent injury of such an employee shall result in the death of the employee, and it shall be determined that the death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall in the first instance pay the compensation prescribed by this title; but he or his insurance carrier shall be reimbursed from the Second Injury Fund created by Section 42-7-310, for all compensation payable in excess of seventy-eight weeks.

(c)   In order to qualify under this section for reimbursement from the Second Injury Fund, the employer must establish when claim is made for reimbursement thereunder, that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge. However, the employer may qualify for reimbursement hereunder upon proof that he did not have prior knowledge of the employee's preexisting physical impairment because the existence of the condition was concealed by the employee.

(d)   As used in this section, 'permanent physical impairment' means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.

When an employer establishes his prior knowledge of the permanent impairment, then there shall be a presumption that the condition is permanent and that a hindrance or obstacle to employment or reemployment exists when the condition is one of the following impairments:

(1)   Epilepsy;

(2)   Diabetes;

(3)   Cardiac disease;

(4)   Arthritis

(5)(4)   Amputated foot, leg, arm or hand;

(6)(5)   Loss of sight of one or both eyes or partial loss of uncorrected vision of more than seventy-five percent bilateral;

(7)(6)   Residual disability from Poliomyelitis;

(8)(7)   Cerebral palsy;

(9)(8)   Multiple sclerosis;

(10)(9)   Parkinson's disease;

(11)(10)   Cerebral vascular accident;

(12)(11)   Tuberculosis;

(13)(12)   Silicosis;

(14)(13)   Psychoneurotic disability following treatment in a recognized medical or mental institution;

(15)(14)   Hemophilia;

(16)(15)   Chronic ostemyelitis;

(17)(16)   Ankylosis of joints;

(18)(17)   Hyperinsulinism;

(19)(18)   Muscular dystrophy;

(20)(19)   Arteriosclerosis;

(21)(20)   Thrombophlebitis;

(22)(21)   Varicose Veins;

(23)(22)   Heavy metal poisoning;

(24)(23)   Ionizing radiation injury;

(25)(24)   Compressed air sequelae;

(26)(25)   Ruptured intervertebral disc;

(27)(26)   Hodgkins disease;

(28)(27)   Brain damage;

(29)(28)   Deafness;

(30)(29)   Cancer;

(31)(30)   Sickle-cell anemia;

(32)(31)   Pulmonary disease;

(33)(32)   Mental retardation provided the employee's intelligence quotient is such that he falls within the lowest percentile of the general population. However, it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.

(34)   Any other pre-existing disease, condition or impairment which is permanent in nature and which:

(a)   Would qualify for payment of weekly disability benefits of seventy-eight weeks or more under Section 42-9-30 exclusive of benefits payable for disfigurement; or

(b)   Would support a rating of seventy-eight or more weeks of weekly disability benefits when evaluated according to the standards applied to Workers' Compensation claims in South Carolina, or combines with a subsequent injury to cause a permanent impairment rated at seventy-eight weeks or more under Section 42-9-30.

(e)   The Second Injury Fund shall not be bound as to any question of law or fact by reason of any compensation agreement, settlement, award, and adjudication to which it was not a party, or in relation to which it was not notified at least twenty days prior to a hearing on liability that it might be subject to liability for the injury or death.

(f)   An employer or his carrier shall must notify the Industrial Commission Workers' Compensation Commission and the Director of the Second Injury Fund in writing of any possible claim against the fund as soon as practicable but in no event later than after the payment of the first seventy-eight weeks of compensation. This written notice must provide the:

(i)     date of accident;

(ii)   employee's name;

(iii)   employer's name and address;

(iv)   insurance carrier's name, address, and the National Council on Compensation Insurance code; and

(v)   insurance carrier's claim number, policy number, and policy effective date. The carrier claim number is the unique identifier a carrier uses throughout the life of a claim to report that claim to the National Council on Compensation Insurance. Failure to comply with the provisions of this subsection shall bar an employer or his carrier from recovery from the fund.

(g)   If the employee has a permanent physical impairment, as defined in this section and the prerequisites for reimbursement have been met, and if it can be shown that the subsequent injury most probably would not have occurred 'but for' the presence of the prior impairment, then reimbursement will be granted as provided in this section even if the combined effects or the aggravation of the preexisting condition by the subsequent injury does not cause the employer's liability for compensation and medical benefits to be substantially greater than that which would have resulted from the subsequent injury alone.

(h)   When a third party is deemed to be an employer for the purposes of paying workers' compensation benefits, that third party will be entitled to reimbursement from the Second Injury Fund if either he or the employer of record have met the knowledge requirements outlined in this section, as well as all other requirements.

(i)     The Second Injury Fund is entitled to a credit for sums recovered by the employer or his workers' compensation carrier from third parties, after the employer or his workers' compensation carrier have been reimbursed for the moneys paid out by them and not reimbursed by the fund.

(j)     The Second Injury Fund can enter into compromise settlements at the discretion of the director with approval of a majority of the Industrial Commission Workers' Compensation Commission, provided a bona fide dispute exists.

(k)   Any employer operating in violation of Section 42-5-20 is not eligible for reimbursement from the South Carolina Second Injury Fund.

(l)     As a prerequisite to reimbursement from the fund, the insurer shall be required to certify that the medical and indemnity reserves have been reduced to the threshold limits of reimbursement and report in accordance with the National Council on Compensation Insurance Workers' Compensation Statistical Plan.

(m)   The Second Injury Fund director must quarterly submit to the National Council on Compensation Insurance information regarding Second Injury Fund accepted claims.

(n)   The National Council on Compensation Insurance must submit a report of any discrepancies pursuant to regulations established by the Department of Insurance. The Department of Insurance is directed to establish regulations concerning Second Injury Fund discrepancies."

SECTION   4.   Section 42-7-200 of the 1976 Code is amended to read:

"Section 42-7-200.   (A)(1)   There is hereby established, within the office of the Second Injury Fund, the South Carolina Workers' Compensation Uninsured Employers' Fund. This fund is created to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees in accordance with provisions of this section. The fund must be administered by the director of the Second Injury Fund, who shall establish procedures to implement this section, until June 30, 2013. Effective July 1, 2013, all functions within the Second Injury Fund related to the Uninsured Employers' Fund, including all allied, advisory, affiliated, or related entities, as well as the employees, funds, property, and all contractual rights and obligations associated with the Uninsured Employers' Fund, is transferred to the South Carolina Workers' Compensation Uninsured Employers' Fund, and all powers, duties, obligations, and responsibilities of the Second Injury Fund that relate to the Uninsured Employers' Fund are devolved upon the South Carolina Workers' Compensation Uninsured Employers' Fund in accordance with the Budget and Control Board's plan for the closure of the Second Injury Fund. This subitem is effective until July 1, 2013.

(2)   There is hereby established, within the office of the State Accident Fund, the South Carolina Workers' Compensation Uninsured Employers' Fund. This fund is created to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees in accordance with provisions of this section. The fund must be administered by the director of the State Accident Fund, who shall establish procedures to implement this section. This subitem is effective as of July 1, 2013.

(B)   When an employee makes a claim for benefits pursuant to Title 42 and the State Workers' Compensation Commission determines that the employer is subject to Title 42 and is operating without insurance or as an unqualified self-insurer, the commission shall notify the fund of the claim. The fund shall pay or defend the claim as it considers necessary in accordance with the provisions of Title 42.

(C)   When the fund is notified of a claim, the fund may place a lien on the assets of the employer by way of lis pendens or otherwise so as to protect the fund from payments of costs and benefits. If the fund is required to incur costs or expenses or to pay benefits, the fund has a lien against the assets of the employer to the full extent of all costs, expenses, and benefits paid and may file notice of the lien with the clerk of court or register of deeds of any county in which the employer has assets in the same manner as the filing of South Carolina tax liens and with the Secretary of State in the same manner as utilized under Title 36 (Uniform Commercial Code). Any of the employer's assets sold or conveyed during the litigation of the claim must be sold or conveyed subject to the lien.

(D)   The fund has all rights of attachment set forth in Section 15-19-10 and has the right to proceed otherwise in the collection of its lien in the same manner as the Department of Revenue is allowed to enforce a collection of taxes generally pursuant to Section 12-49-10, et seq. When all benefits due the claimant, as well as all expenses and costs of litigation, have been paid, the fund shall file notice of the total of all monies paid with the clerk of court in any county in which the employer has assets and with the Secretary of State. This notice constitutes a judgment against the employer and has priority as a first lien in the same manner as liens of the Department of Revenue, subject only to the lien of the Department of Revenue pursuant to Section 12-49-10, et seq. If the employer files for bankruptcy or otherwise is placed into receivership, the fund becomes a secured creditor to the assets of the employer in the same manner as the Department of Revenue has priority for unpaid taxes, subject only to the lien of the Department of Revenue. The fund otherwise has all rights and remedies afforded the Department of Revenue as set forth in Section 12-54-10, et seq.

(B)(E)   Nothing in this section precludes the South Carolina Workers' Compensation Uninsured Employers' Fund from entering into an agreement for the reimbursement of expenses, costs, or benefits paid by the fund. If an agreement is entered into subsequent to the filing of a lien, the lien may be canceled by the fund. Provided, however, an agreement between the fund and an employer under this section may provide that in the event the employer breaches the terms or conditions of the agreement, the fund may file or reinstate a lien, as the case may be. For purposes of this section, the term "costs" includes reasonable administrative costs which must be set by the director of the Second Injury Fund fund, subject to the approval of the Workers' Compensation Commission.

(C)(F)   To establish and maintain the South Carolina Workers' Compensation Uninsured Employers' Fund, there must be earmarked from the collections of the tax on insurance carriers and self-insured persons provided for in Sections 38-7-50 and 42-5-190 an amount sufficient to establish and annually maintain the fund at a level of not less than two hundred thousand dollars. In addition, the State Treasurer may deposit to the account of the fund monies authorized to be paid to the Workers' Compensation Commission under Section 42-9-140 upon determination additional funds are needed for the operation of the fund.

(D)(G)   When an employee makes a claim for benefits pursuant to Title 42 and the records of the South Carolina Workers' Compensation Commission indicate that the employer is operating without insurance, the South Carolina Workers' Compensation Uninsured Employers' Fund or any person designated by the director may subpoena the employer or its agents and require the production of any documents or records which the fund considers relevant to its investigation of the claim. The subpoena shall be returnable at the office of the fund or any place designated by it. In the case of refusal to obey a subpoena issued to any person or agent of any employer, a court of common pleas upon application of the fund may issue an order requiring the person or agent of an employer to appear at the fund and produce documentary evidence or give other evidence concerning the matter under inquiry."

SECTION   5.   Chapter 7, Title 42 of the 1976 Code is amended by adding:

"Section 42-7-320.   (A)   Except as otherwise provided in this section, on and after July 1, 2013, the programs and appropriations of the Second Injury Fund are terminated. The Budget and Control Board must provide for the efficient and expeditious closure of the fund with the orderly winding down of the affairs of the fund so that the remaining liabilities of the fund are paid utilizing assessments, accelerated assessments, annuities, loss portfolio transfers, or such other mechanisms as are reasonably determined necessary to fund any remaining liabilities of the fund. The Department of Insurance and Workers' Compensation Commission may submit comments and suggestions to be considered by the Budget and Control Board in planning for the closure of the fund. The Budget and Control Board shall cause all necessary actions to be taken to provide appropriate staffing of the fund until such time as the staff services are no longer required to administer the obligations of the fund. The fund's administrative costs, including employee salaries and benefits, shall be paid from the Second Injury Fund trust if the interest from the trust becomes insufficient to these pay these obligations.

(B)   After December 31, 2011, the Second Injury Fund shall not accept a claim for reimbursement from any employer, self-insurer, or insurance carrier. The fund shall not consider a claim for reimbursement for an injury that occurs on or after July 1, 2008.

(1)   An employer, self-insurer, or insurance carrier must notify the Second Injury Fund of a potential claim by December 31, 2010. Failure to submit notice by December 31, 2010, shall bar an employer, self-insurer, or insurance carrier from recovery from the fund.

(2)   An employer, self-insurer, or insurance carrier must submit all required information for consideration of accepting a claim to the Second Injury Fund by June 30, 2011. Failure to submit all required information to the fund by June 30, 2011, so that the claim can be accepted, compromised, or denied shall bar an employer, self-insurer, or insurance carrier from recovery from the fund.

(3)   Insurance carriers, self-insurers, and the State Accident Fund remain liable for Second Injury Fund assessments, as determined by the Budget and Control Board, in order to pay accepted claims. The fund shall continue reimbursing employers and insurance carriers for claims accepted by the fund on or before December 31, 2011."

SECTION   6.   On or before January 15, 2014, the Code Commissioner shall prepare and deliver a report to the President Pro Tempore of the Senate and the Speaker of the House of Representatives of all Code references and cross-references which he considers in need of correction, modification, or repeal insofar as the 1976 Code has been affected by this act. The Code Commissioner also is directed to include in his report how to provide adequate notice to alert code users to the status of the provisions concerning the Second Injury Fund as the fund continues to do business pending its termination.

SECTION   1.   Chapter 73, Title 38 of the 1976 Code is amended to read:

SECTION   1.   If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one of more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION   2.   This act takes effect on July 1, 2007, and applies to injuries that occur on or after this date. /

Renumber sections to conform.

Amend title to conform.

Senator MARTIN explained the committee amendment.

The committee amendment was adopted.

Senator MARTIN spoke on the Bill.

Senators McCONNELL, MARTIN and RANKIN proposed the following Amendment No. 1A (JUD0332.125), which was adopted:

Amend the bill, as and if amended, by striking PART III in its entirety, and inserting therein the following:

SECTION   1.   Section 38-73-520 of the 1976 Code is amended to read:

"Section 38-73-520.   Every insurer shall must file with the department, except as to exempt commercial policies, every manual of classifications, rules, and rates, every rating plan, and every modification of any of these which it proposes to use. The filing exemption shall not apply to loss cost filings by advisory or rating organizations or to the multiplier for expenses, assessments, profit, and contingencies and any modifications to loss costs used by a workers' compensation insurer to be applied to approved loss costs to develop the insurer's rates as provided in Section 38-73-525. Every filing shall must state the proposed effective date and shall indicate the character and extent of the coverage contemplated."

SECTION   2.   Chapter 73, Title 38 of the 1976 Code is amended by adding:

"Section 38-73-525.   At least thirty days prior to using new rates, every insurer writing workers' compensation must file its multiplier for expenses, assessments, profit, and contingencies and any information relied upon by the insurer to support the multiplier and any modifications to loss costs. A copy of the filing must be provided simultaneously to the Consumer Advocate. The filing must contain, at a minimum, the following information: commission expense; other acquisition expense; general expense; expenses associated with recoveries from the Second Injury Fund; guaranty fund assessments; other assessments; premium taxes; miscellaneous taxes, licenses, or fees; and provision for profit and contingencies. Rate filings must be reviewed by an actuary employed or retained by the department who is a member of the American Academy of Actuaries or an associate or fellow of the Casualty Actuarial Society. Within the thirty-day period, if the director or his or her designee believes the information filed is not complete, the director or his or her designee must notify the insurer of additional information to be provided. Within fifteen days of receipt of the notification, the insurer must provide the requested information or file for a hearing challenging the reasonableness of the director's or his or her designee's request. The burden is on the insurer to justify the denial of the additional information. Unless a hearing has been requested, upon expiration of the thirty-day period or the fifteen-day period, whichever is later, the insurer may use the rates developed using the multiplier of expenses, assessments, profit, and contingencies."

SECTION   3.   Section 38-73-960 of the 1976 Code is amended to read:

"Section 38-73-960.   The director or his or her designee shall must review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of this chapter. Subject to the exceptions specified in Sections 38-73-965, 38-73-970, and 38-73-980, each filing must be on file for a waiting period of sixty days before it becomes effective. This period may be extended by the director or his or her designee for an additional period not to exceed sixty days if he or she gives written notice within the waiting period to the insurer or rating organization which made the filing that he or she needs additional time for the consideration of the filing. Upon written application by the insurer or rating organization, the director or his or her designee may authorize a filing which he or she has reviewed to become effective before the expiration of the waiting period or any extension thereof. A filing meets the requirements of this chapter unless disapproved by the director or his or her designee within the waiting period or any extension thereof."

SECTION   4.   Chapter 73, Title 38 of the 1976 Code is amended by adding:

"Section 38-73-965.   A filing made pursuant to Section 38-73-525 is governed by the effective dates specified in that section."

SECTION   5.   Section 38-73-990 of the 1976 Code is amended to read:

"Section 38-73-990.   If Except as provided in Section 38-73-995, if within the waiting period or any extension thereof as provided in Section 38-73-960 the director or his or her designee finds that a filing or a part of a filing does not meet the requirements of this chapter, he shall or she must send to the insurer or rating organization which made the filing written notice of disapproval of the filing or part of a filing specifying therein in what respects he or she finds the filing or part thereof fails to meet the requirements of this chapter and stating that the filing or the part may not become effective."

SECTION   6.   Chapter 73, Title 38 of the 1976 Code is amended by adding:

"Section 38-73-995.   An insurer's workers' compensation rates developed using its most recent multiplier for expenses, assessments, profit, and contingencies and any modifications to loss costs may be disapproved at any time after they become effective if the director or his or her designee determines that they do not meet the requirements of this chapter."

SECTION 7.   Chapter 73, Title 38 of the 1976 Code is amended by adding:

"Section 38-73-526.   The director or his or her designee must issue a report to the General Assembly by the first of January each year that evaluates the state of the workers' compensation insurance market in this State. The report must contain an analysis of the availability and affordability of workers' compensation coverage and document that the department has complied with the provisions of Sections 38-73-430 and 38-73-525 with regard to both workers' compensation loss cost filings submitted by an advisory or rating organization and multiplier filings submitted by every insurer writing workers' compensation insurance."     /

Renumber sections to conform.

Amend title to conform.

Senator RITCHIE spoke on the amendment.

Senator RANKIN argued in favor of the adoption of the amendment.

At 3:28 P.M., Senator HAYES assumed the Chair.

Senator RANKIN argued in favor of the adoption of the amendment.

Senator RANKIN moved that the amendment be adopted.

The amendment was adopted.

Senators McCONNELL, LAND, MARTIN, RANKIN, HUTTO, RITCHIE, MALLOY and SHEHEEN proposed the following Amendment No. 2 (JUD0332.152), which was adopted:

Amend the committee report, as and if amended, page 332-6, by striking lines 3 through 38, and inserting therein the following:

/   (D)   Stress, mental injuries and mental illness alleged to have been aggravated by a work-related physical injury shall not be found compensable unless the aggravation is:

(a)   admitted by the employer/carrier;

(b)   noted in a medical record of an authorized physician that, in the physician's opinion, the condition is at least in part causally-related or connected to the injury or accident, whether or not the physician refers the employee for treatment of the condition;

(c)   found to be causally-related or connected to the accident or injury after evaluation by an authorized psychologist or psychiatrist; or

(d)   noted in a medical record or report of the employee's personal physician as causally-related or connected to the injury or accident.

(E)   In medically complex cases, the causation between the injury and the accident must be supported by medical evidence. If the medical evidence is conflicting or inconclusive, the commissioner may seek additional competent evidence, including lay testimony, to determine causation. For purposes of this subsection, 'medically complex cases' means sophisticated cases requiring highly scientific procedures or techniques for diagnosis or treatment excluding MRI's, CAT scans, x-rays, or other similar diagnostic techniques.

(F)   The word 'accident' as used in this title must not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously, or at frequent intervals in the course of such employment, over extended periods of time. Any injury or disease attributable to such causes must be compensable only if culminating in a compensable repetitive trauma injury pursuant to Section 42-1-172 or an occupational disease pursuant to the provisions of Chapter 11 of this title.

(G)   As used in this title, 'medical evidence' means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed health care provider."       /

To further amend the committee report by amending Section 42-9-30 on page [332-8], by striking lines 21-26 and inserting:

/   "(13)   for the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks;

(14)   for the loss of a shoulder, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks;

(14)(15)   for the loss of a foot, sixty-six and two-thirds percent of the average weekly wages during one hundred forty weeks;

(15)(16)   for the loss of a leg, sixty-six and two-thirds percent of the average weekly wages during one hundred ninety-five weeks;

(17)   for the loss of a hip, sixty-six and two-thirds percent of the average weekly wages during two hundred eighty weeks;"/

To further amend the committee report, by adding an appropriately numbered SECTION after SECTION 31, on page [332-36] to read:

/   SECTION   ___.   Section 42-9-10 of the 1976 Code is amended to read:

"Section 42-9-10.   (A)   When the incapacity for work resulting from an injury is total, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during the total disability a weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages, but not less than seventy-five dollars a week so long as this amount does not exceed his average weekly salary; if this amount does exceed his average weekly salary, the injured employee may not be paid, each week, less than his average weekly salary. The injured employee may not be paid more each week than the average weekly wage in this State for the preceding fiscal year. In no case may the period covered by the compensation exceed five hundred weeks except as hereinafter provided in subsection (C).

(B)   The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes, or any two thereof, constitutes total and permanent disability to be compensated according to the provisions of this section.

(C)   Notwithstanding the five hundred week limitation prescribed in this section or elsewhere in this title, any person determined to be totally and permanently disabled who as a result of a compensable injury is a paraplegic, a quadraplegic, or who has suffered physical brain damage is not subject to the five hundred week limitation and shall receive the benefits for life.

(D)   Notwithstanding the provisions of Section 42-9-301, no total lump sum payment may be ordered by the commission in any case under this section where the injured person is entitled to lifetime benefits."

To further amend the committee report, by adding an appropriately numbered SECTION after SECTION 31, on page [332-36] to read:

/   SECTION   ____.   Section 42-9-170 of the 1976 Code is amended to read:

"Section 42-9-170.   If an employee receives a permanent injury as specified in Section 42-9-30 or the second paragraph of Section 42-9-10 after having sustained another permanent injury in the same employment, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding five hundred weeks.

If an employee has previously incurred permanent partial disability through the loss of a hand, arm, shoulder, foot, leg, hip, or eye and by subsequent accident incurs total permanent disability through the loss of another member, the employer's liability is for the subsequent injury only, except that such employee may receive further benefits as provided by Sections 42-7-310, 42-9-400 and 42-9-410 if his subsequent injury qualifies for additional benefits provided therein."/

Renumber sections to conform.

Amend title to conform.

Senator RITCHIE explained the amendment.

The amendment was adopted.

On motion of Senator RITCHIE, debate was interrupted by adjournment.

On motion of Senators HUTTO and MATTHEWS, with unanimous consent, the Senate stood adjourned out of respect to the memory of Mr. Reginald Jarvis, 71, of Orangeburg, S.C. Mr. Jarvis was the second of five brothers who blended their voices to form a renowned a capella quintet performing as the Jarvis Brothers.

At 4:06 P.M., on motion of Senator RITCHIE, the Senate adjourned to meet tomorrow at 11:00 A.M.

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