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Attorney Column: When to Say When - New Case Law Regarding Notice Requirement in Repetitive Trauma Claims
By Brad Easterling, Esq. and Stephanie Lamb, Esq.

There are virtually three types of injuries under the South Carolina Workers’ Compensation Act: injuries by accident, repetitive trauma injuries, and occupational diseases. Repetitive trauma injuries are increasingly prevalent. When presented with repetitive trauma claims, there are multiple defenses available, including the two-year statute of limitations and ninety-day notice requirement. However, up until now, there has been no real guidance on when the clock actually starts to run for these defenses. The new case of King v. International Knife and Saw, Op. No. 4895 (S.C. Ct. App. filed Oct. 19, 2011), provides some definitive guidance on this issue.

In King, the claimant alleged a repetitive trauma injury to multiple body parts as a result of using six- to ten-pound hammers to hammer saw blades for thirteen years. He admitted he had problems with his right arm for a couple of years prior to alleging an injury, and that he suspected the aches were connected to his work. However, he also testified that he never sought medical treatment for those problems and that the pain he felt never interfered with his ability to work. The Hearing Commissioner awarded the claimant benefits and found that he gave timely notice to his employer of his injury. The Appellate Panel reversed and found that the claimant’s claim was barred by the ninety-day notice requirement, and the claimant appealed to the South Carolina Court of Appeals.

In King, the South Carolina Court of Appeals finally had to decide what event triggers the ninety-day notice period for repetitive trauma injuries. In other words, the court of appeals had to define the word “compensable,” which is found in both the notice statute and the statute of limitations for repetitive trauma injuries. Prior to this case, there was no definitive answer on the meaning of the word “compensable,” and many of the commissioners took different stances on the issue, which led to protracted litigation on just about every single case, where notice was in question. The court ultimately decided that “a repetitive trauma injury does not become compensable, and the ninety-day reporting clock does not start, until the injured employee discovers or should discover he qualifies to receive benefits for medical care, treatment, or disability due to his condition.” In other words, the court found that the ninety-day notice clock does not start until an injured employee’s medical condition requires him to seek medical care or until it interferes with his ability to perform his job, whichever occurred first. Mere pain or agitation is not enough for the ninety-day period to start. An injured employee must seek out medical treatment for his condition or miss time from work because of his condition.

Although this case is not final, due to the fact that the appeals period is still pending, it is extremely helpful in providing insight on what to focus on when asserting a notice or statute of limitations defense in a repetitive trauma case. Specifically, as soon as an employee alleges a repetitive trauma injury, much attention should be placed on (1) if and when the employee sought medical treatment for the alleged injury, and (2) if the employee has missed any time from work as a result of the alleged injury. Then, it will be absolutely vital for defense counsel to issue subpoenas to the employee’s medical providers to confirm the employee’s story regarding past medical treatment for the condition. Additionally, it is important to review the employee’s attendance records and personnel file to see if he ever missed time from work for the alleged injury. If it can be established that the employee sought medical treatment or missed time from work because of the injury more than ninety days prior to reporting the claim, there is a potential notice defense. However, the injured employee can surpass the notice requirement by providing proof that he has a reasonable excuse for not giving timely notice and that the employer was not prejudiced by the delayed notice.