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July 22, 2019

Worker passed out in front of supervisors: Is that adequate notice for workers’ comp?

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A worker’s supervisors saw him pass out while on the job. But his employer says the worker never gave formal notice of his workplace injury. Did a court award him workers’ comp benefits?

Otis Nero worked for the South Carolina Department of Transportation.

On June 20, 2012, Nero was part of a SCDOT road crew. His job that day involved pulling a 30-foot-long two-by-four “squeegee board” to level freshly poured concrete. At one point during the day, a supervisor pulled Nero off the squeegee task because he appeared overheated.

At the end of the work day, Nero passed out and fell to the ground when he was with other workers, his supervisor and the lead man on the job. Nero regained consciousness, stood up, told his supervisors he was fine and drove home.

When he got home, Nero passed out in his driveway. His wife took him to the hospital where he was admitted, diagnosed with cervical stenosis and treated by a neurosurgeon.

While at the ER, Nero filled out a “history and physical report,” stating “I passed out talking to my boss.”

Nero eventually underwent surgery for the cervical stenosis. On July 9, 2012, before he had surgery, Nero provided paperwork to SCDOT’s HR department regarding his medical treatment. He also filed for workers’ comp. SCDOT challenged his request on the grounds that Nero didn’t provide adequate notice of his injury.

A workers’ comp commissioner awarded benefits to Nero, finding he had a reasonable excuse for not formally reporting his work injury because:

SCDOT appealed. The Appellate Panel reversed the commissioner, finding although Nero’s two immediate supervisors witnessed him collapse, he never reported the incident. Nero appealed.

The South Carolina Court of Appeals recently ruled on Nero’s case.

What is 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 the employee shall not be entitled to physician’s fees not to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative, had knowledge of the accident.”

The appeals court said it agreed with SCDOT that Nero never gave formal notice of his injury.

But the court said the employer had adequate notice as required by law. The court noted the same factors as the commissioner, such as the two supervisors witnessing Nero pass out. Nero had a reasonable excuse for not formally reporting his injury, according to the court: His supervisors were present when he lost consciousness and he was hospitalized the same day of the incident.

The appeals court reversed the order of the Appellate Panel and reinstated the decision of the commissioner that Nero should receive worker’s comp benefits.

Retrieved from

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