South Carolina workers’ comp law requires employees to tell their employer about a work injury within 90 days. That’s the law. While we’re about to discuss an exception, let’s cover the moral of the story first:
- Take control of your case as much as you can. Tell your employer you got hurt, right away. Don’t add heartburn to your injury. Report your workplace accident on time so you remain eligible for benefits.
- This case is unique. Don’t expect the exception to apply to you. It probably doesn’t.
And now the exception, which is not easily won, as shown by the case we’re about to discuss. I’ll cut to the chase of this injured employee’s nightmare legal ordeal: he won. But only after seven years.
A June 26, 2019 case decided by the South Carolina Court of Appeals called Nero v. SCDOT reveals the rare case where the exception salvages a hurt worker’s benefits, despite late notice.
The Facts of the Case
On June 20, 2012 Otis Nero worked on a SCDOT road crew supervised by a “lead man” and a supervisor. Nero worked a hard job on a hot day—leveling concrete. The supervisor pulled him off at one point because he looked overheated. After work, the crew including Nero and the two supervisors talked when Nero fainted and fell to the ground. While he got up and drove home, he passed out again there. His wife immediately took him to the hospital.
Big Injury—And Big Problem
At the hospital, the doctor diagnosed a cervical spine injury, meaning damage to the spinal area in Nero’s neck. He referred Nero to a neurosurgeon, who performed a cervical fusion operation.
Both supervisors talked to Nero while he was in the hospital for his surgery, which they also knew about. Nero never returned to work.
But Nero never formally informed work he got hurt on the job.
When Nero sought workers’ compensation benefits, a commissioner awarded them. But his employer appealed and won. The appeals panel ruled he gave notice too late. Lucky for Nero, the Court of Appeals finally bailed him out after two more years of appeals. The court initially decided the case in 2017. That resulted in an appeal to the state Supreme Court, which returned the case to the Court of Appeals.
When Late Notice Is Forgiven
The Court of Appeals ruled Nero was excused from late notice because he gave legally adequate notice AND he had a reasonable excuse for giving late notice. Here’s the law the court relied on, plus why it worked out for Nero:
- Adequate notice. The law sets no specific method for giving notice. The employer just needs some knowledge connecting the injury to employment, that indicates to a reasonably conscientious supervisor the case might involve a potential workers’ comp claim.
- Reasonable excuse for late notice. You don’t just need a good excuse, you’ve also got to prove your employer hasn’t been disadvantaged by the delay. A legal disadvantage can occur when the delay prevents your job from investigating the injury immediately, or keeps the employer from giving medical care to minimize disability and thus the cost of care.
What it all boiled down to for Nero: While the decision elaborates on a lot of evidence, Nero won due to a few critical facts about his employer:
- His supervisors personally witnessed the injury,
- They knew about his hospitalization and need for spinal surgery within the 90-day notice period.
- They knew he didn’t come back to work after he got hurt, and
- His employer wrote a letter to his doctor asking about Nero’s ability to work after his injury.
Don’t Worry About Notice—Take Action
If you’re worried your job doesn’t know you got hurt working, tell your supervisor now. Nero got lucky. Don’t assume you will. One thing we’ve learned about many work injuries is that what seems like a small problem can develop into huge injuries, generating enormous bills and potential permanent limitations.
I bet Nero never dreamed he needed a neck fusion. I’ve seen someone whose complaint is “shoulder aches” get diagnosed as serious rotator cuff tears - or worse, spinal operations like Nero. Your injury can turn out to be far worse than you ever imagined.
Injured employees get benefits which can be critical, especially for severe, permanent injuries. You can’t worry about what your bosses will think—they can’t fire you just for filing a workers’ comp claim. Don’t let the clock run out on you.
If you’re worried you’ve waited too late or you want to discuss having an experienced lawyer notify your employer for you, feel free to call toll free 888-230-1841. We know the law, and we work hard to make our people happy.