Safety and OSHA News

Did worker give notice of his injury for workers’ comp?

In some states, workers’ compensation benefits can be withheld if employees don’t properly notify their employers about their injuries. Was that the case here? 

On June 20, 2012, Otis Nero was working on a South Carolina Department of Transportation (SCDOT) road crew. Part of Nero’s work that day was pulling a thirty-foot-long two-by-four “squeegee board” to level freshly poured concrete.

Nero’s supervisor pulled him off the board work temporarily at one point during the day because he appeared overheated. After a break, Nero went back to pulling the board.

At about 3:00 p.m. while still clocked in, Nero fainted and fell while talking to his two supervisors. Nero regained consciousness, stood up, told his supervisors he was fine and drove home.

When he got home, Nero passed out again while sitting in his driveway. He was admitted to the hospital.

Nero had cervical stenosis and eventually underwent fusion surgery. He didn’t return to work for SCDOT.

In January 2014, Nero filed a request for a workers’ comp hearing, claiming he suffered injuries to his neck and shoulders while pulling the squeegee board on June 20, 2012. A commissioner found Nero qualified for benefits.

There was a question of whether Nero informed SCDOT of his injury as required. The commissioner found Nero had a “reasonable excuse” for not formally reporting his work injury because:

  • two supervisors were present and knew there could be a compensable injury
  • the two supervisors followed up with Nero
  • SCDOT was notified Nero was hospitalized, and
  • Nero didn’t return to work after the incident.

SCDOT appealed to the full Workers’ Compensation Commission. The Commission reversed the decision, finding Nero never reported that while he was using the squeegee board he heard a snap in his shoulders and neck. The Commission also found his excuse for not reporting the incident wasn’t reasonable. Nero appealed to a state court.

What counts as adequate notice?

South Carolina’s workers’ comp law says:

  • “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
  • “No compensation shall be payable unless such notice is given within 90 days after the occurrence of the accident or death, unless reasonable excuse is made.”

There’s no specific method for giving notice required in the law. The South Carolina Supreme Court had previously ruled that injured employees should be given the benefit of the doubt when it comes to adequate notice.

In a previous decision, a state appeals court said “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.” But the court also explained that just because an employer has knowledge of the fact that an employee became ill while at work doesn’t necessarily mean the employer received adequate notice.

There’s no question Nero never formally reported his injury to SCDOT. So the question was whether SCDOT had knowledge of Nero’s injury.

Nero noted:

  • A supervisor was concerned about him due to the heat and his age and pulled him away from using the squeegee board for a while
  • While still on the clock, he fainted and fell with two SCDOT supervisors as witnesses
  • The two supervisors were both aware he was hospitalized and had surgery – in fact, they spoke with him while he was in the hospital, and
  • He never returned to work.

Since the state’s supreme court said the benefit of the doubt should be given to the injured employee in these cases, the appeals court found the Commission was wrong to find that Nero hadn’t given SCDOT adequate notice about his injury. The appeals court also found Nero’s excuse for not giving adequate notice was reasonable because two supervisors were there when he was injured.

(Otis Nero v. South Carolina Department of Transportation, South Carolina Court of Appeals, No. 2015-001277, 8/23/17)

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