South Carolina BAR Journal
SC Lawyer, May 2011, #5.
Notice and Statute of Limitations Issues in Repetitive Trauma Cases
South Carolina LawyerMay 2011Notice and Statute of Limitations Issues in Repetitive Trauma CasesBy Matthew O. Riddle and Leslie M. Whitten Almost 10 years ago, the S.C. Supreme Court issued its opinion in Pee v. AVM, confirming that injuries caused by repetitive work activity are compensable under the Workers' Compensation Act (the Act). 352 S.C. 167, 573 S.E.2d 785 (2002). As a result, a receptionist who develops carpal tunnel syndrome caused by typing at work has just as valid a claim for compensation as a construction worker who is injured in a fall on the job.
The advent of the repetitive trauma claim caused considerable confusion regarding the notice and statute of limitations requirements set forth in the Act. The appellate courts initially addressed these issues and set forth applicable rules. Then the legislature got involved, issuing wide-ranging amendments to the Act that took effect July 1, 2007. These amendments included rules specifically applicable to repetitive trauma claims and modified prior holdings regarding notice and the statute of limitations. Lawyers representing employers, insurance carriers and injured workers are now calling on the appellate courts to provide clarification with regard to the 2007 amendments. The main issue in dispute involves the "discovery rule" as it applies to the notice and statute of limitations provisions. This article will trace the development of the rules applicable to repetitive trauma claims and provide an overview of the issues currently in dispute with regard to interpretation of the 2007 amendments.
The notice requirement
The general rule set forth by the Act is that an injured worker must give notice of an injury to the employer immediately "upon the occurrence of an accident or as soon thereafter as practicable." S.C. Code Ann. § 42-15-20 (2007) (emphasis added). A claim is barred if the claimant does not give the required notice within 90 days after an accident, unless the claimant presents a reasonable excuse and can show a lack of prejudice to the employer. Id. Because a repetitive trauma injury is the result of a series of occurrences, there is no single "accident" to start the 90-day notice period running. The S.C. Court of Appeals addressed this issue in Bass v. Isochem, determining that the 90-day period starts when the employee (1) becomes disabled and (2) could, through reasonable diligence, discover that his condition is compensable. 265 S.C. 454, 617 S.E.2d 369 (Ct. App. 2005).
In 2007, the legislature codified this rule, with one important modification. S.C. Code Ann. § 42-15-20(C) provides that an employee must report a repetitive trauma injury to the employer within 90 days of discovery, regardless of when the employee becomes disabled. For example, even if the claimant continues working, he must report a work related injury to his employer within 90 days of discovering "his condition is compensable." S.C. Code Ann. § 42-15-20 (2007).
The statute of limitations
The statute of limitations states that a claim is barred unless a claimant files the claim within two years of the date of injury. S.C. Code Ann. § 42-15-40 (2007). The statute begins to run when the claimant has discovered or reasonably should have discovered that he has a compensable injury. Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639 (1992). However, in Schurlknight v. City of North Charleston, the Supreme Court rejected the "discovery rule" in the context of repetitive trauma. 352 S.C. 175, 574 S.E.2d 194 (2002). The court held that the date of injury for purposes of determining the limitations period in repetitive trauma claims is the "last date of injurious exposure"-not the date of discovery. Id.
The claimant in Schurlknight, a fire fighter, knew as early as 1995 that he had sustained hearing loss resulting from exposure to noise at work. He continued to work until 1997 and eventually filed a workers' compensation claim in 1998. 352 S.C. at 176-77, 574 S.E.2d at 194-95. The S.C. Workers' Compensation Commission (the Commission) and the Court of Appeals found that the claim was barred by the statute of limitations. Id. at 177 and 195. The Supreme Court reversed, noting that application of the discovery rule would often prejudice a claimant who discovers symptoms of a repetitive trauma injury but continues to work. Therefore, the court determined that the date of injury in repetitive trauma cases is the last date of injurious...