Diamond Post
Workers' Compensation Newsletter
Repetitive Trauma Injuries:
Did the 2007 Amendments Level the Playing Field?
Repetitive injuries remain one of the most difficult areas of the practice of workers' compensation defense despite the changes to the South Carolina Workers' Compensation Act in 2007. The July 1, 2007 changes to the Act were intended to simplify the circumstances when a claim could be filed, specifically in reference to a repetitive trauma injury. The legislature began this simplification by providing a statutory definition of a repetitive trauma injury. S.C. Code Ann. Section 42-1-172(A) now defines a "repetitive trauma injury" as an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events. Compensability of such an injury is determined solely by the provisions of this statute.
Defense attorneys were more encouraged by a portion of the statute, specifically S.C. Code Ann. Section 42-1-172(B), which stands for the proposition that a repetitive motion injury is not compensable unless a Commissioner makes a specific finding of a causal connection, established by medical evidence, between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury. Medical evidence is later defined in the same statute as an expert opinion stated to a reasonable degree of medical certainty. S.C. Code Ann. Section 42-1-172(C)
In light of this new statute, it has now become increasingly more important for the defendants to obtain accurate information regarding the claimant's job description and duties. Specifically, the defendants should thoroughly familiarize themselves with the claimant's employment-related activities. The defendants should also obtain video of a similar employee performing the injured claimant's job duties and ascertain the length of time the claimant performed the job duties in question. This information is vitally important to the defense of the case. The video should then be provided to the chosen medical professional so that he or she can make an accurate determination regarding the causal relationship between the claimant's alleged injury and accident. However, please note, while defendants must familiarize themselves with the above-outlined information, it is imperative to remember that it is the claimant's burden to obtain this information and present it to the Commission in an effort to prove a compensable repetitive trauma injury.
Other 2007 amendments to the Act worth noting are those regarding notice of a claim and the statute of limitations. Both amendments placed the burden squarely on the shoulders of claimants and/or their attorneys to bring their claims in a timely manner. S.C. Code Ann. Section 42-15-20(C), the current notice provision, states in cases of repetitive trauma, notice must be given within 90 days of the date in which the employee discovered his condition was compensable. Similarly, after the recent amendments, the statute of limitations requires the claimant to file a claim with the Commission within two years after the employee knew or should have known his or her injury was compensable, but no more than seven years after the last date of injurious exposure. Failure to pursue a claim within this frame work results in the claimant's claim being forever barred - 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.
After reviewing the law, and the 2007 amendments to the Act, a question remained unanswered: "What triggers should alert a claimant his repetitive injury is compensable?" In March 2011, the South Carolina Court of Appeals tried, but failed to provide us with a concrete answer to this question. The court found in Murphy v. Owens Corning, that an injured worker's claim was not barred by the statute of limitations. Murphy v. Owens Corning, 393 S.C. 77, 710 S.E.2d 454 (Ct. App. 2011). In this case, the claimant documented significant pain in her neck beginning sometime in 2003; however, it was not until 2007 when her pain was medically related to her work place for the first time. In reaching its decision, the court relied heavily on the facts in this case and failed to provide firm legal precedent to determine when a claimant should know his or her claim is "compensable."
The Murphy decision further validates, as we have reasoned above, that the defendants should obtain as many facts and evidence as possible pertaining to the claimant's job description and job duties when defending this type of action. Two other repetitive trauma cases are slated for appeal in the coming months, and with any luck, those cases will provide us with additional guidance as it pertains to when a claimant should have known his or her claim was compensable. For the time being, the defendants will have to continue to lean on the positive amendments to the Act and await further clarification from the court.
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