Home / Workers' Compensation Blog / Revisiting Otis Nero

Revisiting Otis Nero

J. Steven Rodenberg

We first learned of Otis Nero in the spring of 2017 after the Court of Appeals issued its first decision in the case of Otis Nero v. South Carolina Department of Transportation on March 29, 2017. As you may recall, Mr. Nero was working on June 20, 2012 when he passed out in front of co-workers sometime after pulling a squeegee board. He regained consciousness, told his supervisors he was fine, then drove himself home. Once home, he passed out again in his car after which his wife took him to the emergency room where he was diagnosed with cervical stenosis and referred for cervical fusion surgery. In his FMLA paperwork, Mr. Nero made no mention of the incident at work and simply indicated that he had a neck injury that had existed for several years. It appears that Mr. Nero did not tell anyone with SCDOT that the neck injury was related to pulling a squeegee board in June of 2012 until his attorney requested a hearing on January 6, 2014.

In South Carolina, claimants are required to give notice of an accident causing injury within 90 days; otherwise, the claim is barred. However, if (1) the claimant had a reasonable excuse for not providing timely notice and (2) the employer was not prejudiced by the lack of notice, then the claim may still be deemed compensable.

In this case, the Single Commissioner found that Mr. Nero had not given notice of his injury within 90 days, but he had a reasonable excuse because there were witnesses to the incident, his supervisors followed up with him, and he did not return to work after the incident. The Single Commissioner also found no prejudice to the employer. The Appellate Panel reversed, finding that Mr. Nero did not give notice of an injury to his neck, there was no reasonable excuse, and the employer was prejudiced because they could not investigate the accident or any pre-existing conditions.

On appeal from the Commission’s decision, the Court of Appeals initially employed the substantial evidence standard of review and reversed the Commission finding the SCDOT was on notice because Mr. Nero’s supervisors witnessed the fall. Even though the Court of Appeals found notice was provided, it still went on to address the reasonable excuse issue and found that Mr. Nero did have a reasonable excuse because his supervisors were present when he lost consciousness and were aware of his surgery (in other words, Mr. Nero had a reasonable excuse because his employer had notice). That original opinion was withdrawn, substituted and refiled on August 23, 2017 basically making the same findings and coming to the same conclusions using the de novo standard of review.

In its opinion filed on April 4, 2018, the Supreme Court found the Court of Appeals erred in applying the de novo standard, reversed the Court of Appeals, and remanded to the Court of Appeals for a new decision issued under the proper standard of review, the substantial evidence standard. Under the substantial evidence standard of review, the Court of Appeals may not substitute its judgment for that of the Workers’ Compensation Commission as to the weight of the evidence on questions of fact unless the Workers’ Compensation Commission’s findings are clearly erroneous in view of the reliable, probative, and substantial evidence in the record. After considering the entire record, the Court of Appeals need only find evidence that would allow reasonable minds to reach the conclusion that the Workers’ Compensation Commission Appellate Panel reached in order to affirm the Appellate Panel findings.

While this Supreme Court decision looks potentially promising on its face, the sad news is that the Court of Appeals’ original opinion in this case using the substantial evidence standard of review found that because the Supreme Court of South Carolina has long held that the workers’ compensation notice provisions are to be liberally construed in favor of claimants, the Appellate Panel erred in reversing the Single Commissioner’s determination that SCDOT received adequate notice under § 42-15-20(A). Likewise, the Court of Appeals found the substantial evidence in the record does not support the Appellate Panel’s finding that Nero failed to provide a “reasonable excuse” for failing to provide timely notice pursuant to § 42-15-20(B) and because SCDOT was aware Nero never returned to work following the June 2012 syncopal episode and knew of his hospitalization and surgical treatment, no prejudice can be established.

Since the Supreme Court has remanded the case to the Court of Appeals for a decision under the substantial evidence standard, I fully expect the original March 29, 2017 opinion will be reissued. So it would appear that it is only for the moment that we are back to pre-Nero notice. We will let you know just as soon as the Court of Appeals actually issues its new opinion after remand.

As always, please do not hesitate to contact any of the attorneys at YCRLAW to discuss any legal issues you may have.