South Carolina Lawyer
SC Lawyer, January 2008, #2.
Repetitive Trauma Workers' Compensation Claims in South Carolina
South Carolina Lawyer January 2008 Repetitive Trauma Workers' Compensation Claims in South Carolina I. The evolution of repetitive trauma law
Traditionally, an employee injured on the job in South Carolina must demonstrate an "injury by accident" that arises "out of and in the course of employment." S.C. Code Ann. § 42-1-160 (1976). South Carolina workers' compensation law has generally interpreted an "injury by accident" as a specific causative event. However, this definition has been expanded by case law to include injuries that occur over time, which are referred to as repetitive trauma claims. This expanded definition of "injury by accident" has created numerous issues, including exactly when an injury occurs for purposes of the statutory requirement that a claimant provide notice of an injury within 90 days of an accident. See S.C. Code Ann. § 42-15-20. The legislature recently addressed these issues, but the Act only applies to dates of injury after July 1, 2007. See Act of June 20, 2007, pt. 1, 2007 S.C. Act 111; see also, Pee Dee Reg'l Transp. v. S.C. Second Injury Fund, 2007 WL 2416228 (S.C. Aug. 24, 2007).
The definition of "injury by accident" was first expanded by the South Carolina Supreme Court in Hiers v. Brunson Construction Co., 221 S.C. 212, 70 S.E.2d 211 (1952). In the Hiers case, the claimant became ill with pneumonia and died some time after repairing a roof at work during a particularly cold and rainy period. Although the evidence indicated that this exposure to the elements was the cause of the claimant's illness, and ultimately, his death, the Court determined that it was a compensable injury by accident within the meaning of the statute. The Court held that "no slip, fall or other fortuitous event or accident in the cause of the injury is required; the unexpected result or industrial injury is itself considered the compensable accident." Hiers, 221 S.C. at 231, 70 S.E.2d at 220.
Almost 40 years later, in Stokes v. First National Bank, 306 S.C. 46, 410 S.E.2d 248 (1991), a claimant was working for First National Bank approximately 45 hours per week when the bank decided to merge with another bank. In preparation of the upcoming merger, the claimant was required to nearly double his workload. The claimant worked 16 to 18 hours a day; he suffered a nervous breakdown and had to be hospitalized. In finding the nervous breakdown a compensable injury, the Court held that "in determining whether something constitutes an injury by accident the focus should not be on some specific event, but rather on the actual injury itself." Stokes v. First National Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 250 (1991). The focus, therefore, emphasized the unexpected nature of the resulting injury, and not the unexpected event causing injury.
The seminal case addressing modern repetitive trauma claims is Pee v. AVM, 352 S.C. 167, 573 S.E.2d 787 (2002). Pee was the first case to hold that a repetitive trauma injury meets the definition of an "injury by accident." In Pee, the claimant developed carpal tunnel syndrome in her both wrists. The parties agreed that the repetitive nature of the claimant's work caused the carpal tunnel syndrome, but the employer denied that this scenario met the definition of "injury by accident." The Supreme Court sided with the claimant and held that a repetitive trauma injury may be compensable under the Workers' Compensation Act. The employer argued that repetitive trauma was not an injury by accident because it is not unexpected and lacks definiteness in time. In the alternative, the employer argued that the repetitive trauma is only compensable as an occupational disease.
Citing Stokes v. First National Bank, supra, the Court held that only the injury itself must be unexpected; the cause need not be...