The 90 day notice requirement of SC Code Section 42-15-20 has been further eroded by a recent decision of the SC Court of Appeals, Nero v SCDOT in a decision filed June 26, 2019. Section 42-15-20 requires that notice of a work related accident be given to the employer by the employee within 90 days after its occurrence. The statute itself is vague as to what exactly constitutes “notice” and over the years, the courts have generally imposed a requirement that the notice be sufficient to provide the employer sufficient information to investigate the claim immediately after its occurrence and funish medical care to minimize the disability and mitigate the cost of the claim.
In 2002, the Court of Appeals held 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 compensation claim.” Etheridge v Monsanto Co., 349 SC 451, 458, 562 SE2d 679, 683 (Ct. App. 2002). This holding contradicted an earlier SC Supreme Court decision, Sanders V Richardson, 251 SC 325,328, 162 SE2d 257,258 (1968), which at that time held that just because an employer has knowledge of the fact that an employee becomes ill while at work “does not necessarily of itself, serve the employer with notice that such illness constituted or resulted in a compensable injury”. Etheridge signaled a departure from established case law in tacitly requiring that a supervisor be “reasonably conscientious” and be savvy enough to recognize the existence of a potential compensation claim. Previously, the burden of proving compliance with the notice requirement had been put upon the claimant, Etheridge appears to have shifted that burden to the employer by requiring some investigation. Although there were some cases after Etheridge that continued to require the Claimant to bear that burden, Etheridge certainly took the first step in shifting it.
The SC Supreme Court reversed the Court of Appeals in Hartzell v Palmetto Collision, LLC, 415 SC 617, 620, 785 SE2d 194, 195, 2016 when it found evidence of “notice” when a claimant told his boss he was “pretty sore” and “must have hurt himself.” The employer did not deny that the conversation might have occurred, but testified it did not “ring a bell”. The Supreme Court found that to be sufficient “notice.”
The Court of Appeals recently reversed the Appellate Panel and found that notice was adequate and non prejudicial in Nero v SCDOT, Opinion No. 5660. The facts are fairly simple. On June 20, 2017, Nero was working for SCDOT on a road crew supervised by lead man Durant and supervisor Bostick. His job was to pull a 30 ft long 2×4 squeegee board to level freshly poured concrete with 4 or 5 other men. At some point, Bostick pulled Nero off because he appeared to be overheated. Nero took a break and returned to finish the job for the day. After finishing the days work, and while talking with co workers including Bostick and Durant, Nero fainted and fell to the ground. He woke up, told his supervisors he was fine, and drove home, where he fainted again upon exiting his car. His wife took him to the hospital, and he was diagnosed with cervical stenosis. At the ER, Nero filled out a form writing “I passed out talking to my boss.”
On July 9, 2012, prior to undergoing a cervical fusion, Nero completed an FMLA form for his HR department. He did not specifically mention a neck “popping incident” with the squeegee board, but did report that he needed neck surgery. He listed the date that the condition commenced as “several years-neck and syncope”. On January 6, 2014, Nero requested a hearing, alleging injuries to his neck and shoulders while pulling the squeegee board on June 20, 2012. The Single Commissioner found notice to be adequate, the Appellate Panel reversed, and the Court of Appeals again reversed in favor of adequate notice.
In the discussion of notice, the Court pointed out these facts in support of finding that notice was sufficient for the neck injury:
- Bostick was concerned about Nero and gave him a break.
- Both Bostick and Durant saw Nero faint and fall to the ground.
- Both Bostick and Durant called Nero in the hospital and were aware that he needed neck surgery.
- Both Bostick and Durant knew Nero didn’t return to work at SCDOT after his surgery and that Nero filled out FMLA paperwork through the SCDOT HR department.
The Court further noted that the documentary evidence also established notice. As early as July 13, 2012, SCDOT received written notice from the Claimant’s doctor that he had been out of work since the date of his “collapse” and needed neck surgery. In July and August of 2012, SCDOT received medical records confirming that Nero was being treated for cervical radiculopathy. SCDOT asked the doctor in November of 2012 as to Nero’s work status.
The Court summed this up by noting that the Employer was aware that the Claimant was in the hospital and that he was being treated for cervical radiculopathy, and they also found it telling that the Employer wrote the doctor in November of 2012 inquiring about work status. The Court cited the Etheridge decision, concluding 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 compensation claim.” The Claimant himself testified in his deposition that while pulling the squeegee board, he felt a pain and a “snap. . .in between” his shoulder and his neck. He admitted that he did not tell Bostick that he had hurt his neck. He did not tell Bostick or Durant about the “snapping, crackling, and popping sensation“ in his neck, but did testify that he told Bostick “I think he 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 Commission and the Courts have long been reluctant to deny claims simply on the basis of notice; however, the decision in Nero found notice of a neck injury resulting from pulling a squeegee board simply because the supervisor noticed that Nero appeared overheated while pulling the squeegee board and later fainted. It appears to be undisputed in the record that at no point did Nero tell anyone that he injured his neck while pulling the squeegee board until after he had filed a claim. Under Nero, a “reasonably conscientious supervisor” should have connected the dots when he found out that the Claimant was having neck surgery and that he must have injured his neck while pulling the squeegee board even though Nero simply looked like he was overheated.
It will be interesting to see if further appeal is pursued at the SC Supreme Court. For the present time, employers need to be vigilant whenever there is the possibility of a work related accident. It is probably a good idea to require employees to seek medical treatment if they experience an accident or an event, or in this case, have a syncope and collapse. It may not prevent the claim, but at least there will be contemporaneous medical evidence of the complaints. The main takeaway from this decision is that the defense of notice, which was never the sharpest quill in the defense quiver, currently has a Nerf point on it and cannot be relied upon as a sole defense.