Employer Not Prejudiced by Lack of Formal Notice When Supervisor Witnessed the Employee’s Injury

Where a highway construction worker, who had completed a strenuous shift of work on a hot summer day, lost consciousness, and fell to the ground in the presence of his supervisor, the worker’s failure to give his employer formal notice of his injury was excused, held the Supreme Court of South Carolina [see Nero v. South Carolina Dept. of Transp., 2017 S.C. LEXIS 62 (Mar. 29, 2017)]. The Court acknowledged that S.C. Code § 42–15–20 required that every injured employee or his representative give the employer notice of a job-related accident. It also noted, however, that the statute required no specific method of giving notice. In this case, the Court indicated the employer could hardly claim it had been prejudiced when the workers’ supervisor witnessed the incident and even visited the worker later in the hospital.

Background

Nero was part of a SCDOT four or five member work crew on a hot, summer day. Their job consisted of pulling a 30-foot-long two-by-four “squeegee board” to level freshly poured concrete. At some point during the day, Nero’s supervisor pulled Nero off the squeegee board temporarily because Nero appeared overheated. After a break, Nero returned to pulling the squeegee board. At 3:00 p.m., after finishing their work and cleaning up, the crew, including Nero and the supervisor, talked and joked near the supervisor’s truck when Nero lost consciousness and fell to the ground. Nero regained consciousness, stood up, told his supervisors he was fine, and drove home. Once home, Nero passed out again while sitting in his driveway. His wife immediately took him to the hospital where he was admitted and treated.

Single Commissioner Awarded Benefits

The single commissioner found Nero’s claim compensable as an injury by accident that aggravated a preexisting cervical disc condition in Nero’s neck. The commissioner further determined Nero had a “reasonable excuse” for not formally reporting his work injury because (1) his lead man and supervisor were present and knew of pertinent facts surrounding the accident sufficient to indicate the possibility of a compensable injury, (2) the lead man and supervisor followed up with Nero, and (3) SCDOT was aware Nero did not return to work after the June 20, 2012 incident. Further, SCDOT was notified Nero was hospitalized and ultimately had neck surgery. Finally, the single commissioner found SCDOT was not prejudiced by the late formal reporting of the injury.

Appellate Panel Reversed the Commissioner

The Appellate Panel reversed the single commissioner, finding that although Nero’s supervisors witnessed him pass out, Nero never reported that the squeegee board accident involved a “snap” in his shoulders and neck. The Appellate Panel further found Nero’s excuse for not formally reporting was not reasonable and SCDOT was prejudiced because Nero’s late reporting deprived it of the opportunity to investigate the incident and whether Nero’s work aggravated his preexisting cervical stenosis.

Supreme Court Decision: No Prejudice to Employer

The high court acknowledged that Nero never formally reported his injury to his employer. It indicated, however, that no particular method of reporting the injury was required by the statute. When questioned at the workers’ compensation hearing as to why he never reported the injury, Nero answered that his supervisor was “right there.” The Court said the record did not contain substantial evidence that Nero failed to put the employer on notice. The Court reiterated that the employer was fully aware that Nero had been hospitalized and had undergone surgery. It knew he had never returned to work. It was not prejudiced under the circumstances.

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