What's good 'notice' of a workplace injury in South Carolina?
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Many readers know that statutory protections passed by state legislatures and Congress are often written to favor the rights of employees. One such statute is South Carolina's workers' compensation law. The law requires employees to give notice to their employers when workplace injuries occur. The South Carolina Court of Appeals recently addressed the issue. Read on to see how the court interpreted the law.
On June 20, 2012, Otis Nero was working on a South Carolina Department of Transportation (SCDOT) road crew overseen by lead man Benjamin Durant and supervisor Danny Bostick. Nero's work, along with that of four or five other members of the crew, involved pulling a 30-foot-long two-by-four "squeegee board" to level freshly poured concrete. At some point during the day, Bostick temporarily pulled Nero off the squeegee board because he appeared overheated. After a break, Nero returned to pulling the squeegee board.
At approximately 3:00 p.m., after finishing their work and cleaning up, the crew, including Nero, Durant, and Bostick, was talking and joking near the supervisor's truck when Nero lost consciousness and fell to the ground. He regained consciousness, stood up, told his supervisors he was fine, and drove home. Once he was home, he passed out again while he was sitting in his driveway. His wife immediately took him to the hospital, where he was admitted and treated.
At the emergency room, Nero filled out a "History and Physical Report" in which he stated, "I passed out [while] talking to my boss." He was initially seen by his primary care physician, Dr. Robert Richey. After a series of tests, Richey determined that Nero had cervical stenosis and referred him to a neurosurgeon, Dr. William Naso, who performed fusion surgery.
On July 9, 2012, prior to his surgery, Nero provided the HR department with his "SCDOT Certification of Health Care Provider for Employee's Serious Health Condition (Family [and] Medical Leave Act [FMLA])" paperwork. He didn't mention the squeegee incident in the documents. Under the section for "approximate date condition commenced," he stated, "several years-neck and syncope." During his deposition, he testified that he hadn't been treated for any back or neck problems before the squeegee board incident.
On January 6, 2014, Nero filed a request for a workers' comp hearing, alleging he suffered injuries to his neck and shoulders while he was pulling the squeegee board in June 2012. The commissioner found his claim compensable as an injury caused by an accident that aggravated a preexisting cervical disk condition in his neck.
The commissioner further determined that Nero had a "reasonable excuse" for not formally reporting his work injury because:
- His lead man and supervisor were present and knew of pertinent facts about the accident sufficient to indicate the possibility of a compensable injury.
- The lead man and supervisor followed up with him.
- The SCDOT was aware that he didn't return to work after the incident. Further, the SCDOT was notified that he was hospitalized and ultimately had neck surgery.
Finally, the commissioner found that the SCDOT wasn't prejudiced (harmed) by the late formal reporting of the injury.
The SCDOT appealed to the appellate panel, which reversed the commissioner's findings. The appellate panel concluded that although Nero's supervisors saw him pass out, he never reported that he felt a "snap" in his shoulders and neck during the squeegee board incident. The panel further found that Nero's excuse for not formally reporting the injury wasn't reasonable and the SCDOT was prejudiced because his late report deprived it of the opportunity to investigate the incident and determine whether his work aggravated his preexisting cervical stenosis.
Nero appealed the panel's decision, arguing it erred by failing to find that the SCDOT received adequate notice of his workplace accident. He also contended that he demonstrated a reasonable excuse for-and the SCDOT wasn't prejudiced by-any late formal notice of his injury.
The court began by addressing the standard of review it was required to use in deciding the case. It properly observed that the standard of review for appellate panel decisions permits it to reverse or modify the decision when the substantial rights of the appealing party have been prejudiced because the decision was affected by an error of law or was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In this case, a statute was being reviewed, and statutory interpretation is a question of law subject to de novo review (a fresh review that allows the appellate court to substitute its own judgment about whether the lower court or tribunal correctly applied the law).
Section 42-15-20 of the workers' comp law sets forth the requirement that an employee provide timely notice of an accident to an employer, stating, in pertinent part:
(A) Every injured employee or his representative immediately shall 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 or deceit of some third person.
(B) 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 timely notice, and the commission is satisfied that the employer has not been prejudiced thereby.
Section 42-15-20 doesn't provide for a specific method of giving notice. However, the employer must actually be put on notice of the employee's injury so it can investigate the incident immediately after its occurrence and furnish medical care in order to minimize any disability.
The court's review of the record confirmed that Nero never formally reported his injury to his employer. He was able to communicate with the SCDOT because he submitted the necessary paperwork for benefits under the FMLA. Because he didn't allege that any mental condition, physical issue, or third party prevented him from formally reporting his injury, the court noted that it had to determine whether the SCDOT had knowledge of his accident pursuant to Section 42-15-20(A).
The SCDOT's adequate notice of the workplace injury was based on the following facts:
- On June 20, 2012, Bostick was concerned about Nero because of the heat and his age, and temporarily pulled him off the squeegee board.
- After finishing for the day, but while he was still on the clock, Nero lost consciousness and fell to the ground. Durant and Bostick both witnessed the incident.
- After regaining consciousness and driving home, Nero passed out a second time. His wife immediately took him to the hospital, where he was admitted, treated by a neurosurgeon, and diagnosed with cervical stenosis. He underwent neck surgery approximately two months later.
- Durant and Bostick were both aware that he was hospitalized and had surgery. In fact, they spoke with him while he was in the hospital.
- Nero never returned to work.
The court focused on a couple of points. First, Richey (Nero's primary care physician) testified that his preexisting cervical spine condition was aggravated by pulling the squeegee board and that pulling the squeegee board in the heat caused the syncope. Next, Nero testified at his deposition that the injury to his upper back and shoulders was the result of pulling the squeegee over a concrete pad.
Nero further testified that while he was pulling the squeegee, he felt "like a bone snapped or something snapped-or popped." He spoke with Bostick and Durant while he was in the hospital but didn't report that he felt "a snap[ping], crackling, and popping sensation" in his neck. He testified, "I think [Bostick] asked me what . . . was wrong. I said I am in the hospital. I said ever since I fell out, I said, I've been here ever since."
The court acknowledged that although Nero never formally reported his injuries to his supervisors, Durant and Bostick both saw him fall to the ground unconscious after he finished the physically challenging squeegee board work. Significantly, Durant's reason for not reporting Nero's incident to Bostick was that the supervisor was "right there."
Relying on case law that has long held the statutory notice provision is to be liberally construed in favor of employees, the court observed that notice is adequate when there is some knowledge of accompanying facts connecting the injury or illness with the employment and signifying to a reasonably conscientious supervisor that the case might involve a potential workers' comp claim. As a result, the court found the appellate panel erred in reversing the commissioner's determination that the SCDOT received adequate notice under Section 42-15-20(A).
On the second question-whether Nero had a reasonable excuse for any late formal report of his injury and whether the SCDOT was harmed by the late report-the court again agreed with Nero. His reason for not formally reporting his workplace incident was that his supervisors were present when he lost consciousness. Moreover, Durant and Bostick talked with him while he was hospitalized and were aware of his treatment and subsequent surgery, as well as the fact that he never returned to work after his collapse. Further, as the commissioner recognized, Durant testified that he never reported the incident to his own supervisor, Bostick, because it happened in Bostick's presence.
The court found that the preponderance of the evidence didn't support the appellate panel's finding that Nero presented no "reasonable excuse" for failing to provide the SCDOT timely notice of his injury pursuant to Section 42-15-20(B). Further, because it was aware that he never returned to work following the June 2012 syncopal episode and his supervisors knew about his hospitalization and surgical treatment, the SCDOT couldn't establish that it had been prejudiced. The court therefore reversed the decision of the appellate panel.
Lessons for employers
South Carolina employers must be familiar with the statutes that apply to them. The two laws that were relevant in this case were the South Carolina workers' comp statute and the FMLA. It was difficult for the SCDOT to argue that it had no FMLA notice of Nero's serious medical condition. There was some evidence that the FMLA form didn't reflect that he had suffered a workers' comp injury, but the court believed that was insufficient to get past the fact that two supervisors were present when he was pulled from the job and fell at work.
When supervisors are aware that something is wrong, they should do more than allow the employee to go home at the end of his shift. In fact, most employer policies state that all "injuries," no matter how slight, should be immediately reported. This case seemingly tells us that if a supervisor is standing right there when an employee is injured, he has sufficient notice of the injury, and the employee doesn't have to do anything else to report the injury. The bottom line? An employee doesn't have to do a whole lot to provide adequate notice of a workplace injury.
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