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Road worker’s excuse for late notice of injury reasonable: Court

road worker

A road crew worker who lost consciousness on the job provided a reasonable excuse for providing late formal notice of his injury, the Court of Appeals of South Carolina held on Wednesday.

In Nero v. South Carolina Department of Transportation, a three-judge panel of an appellate court reversed the state Workers Compensation Commission decision holding that the worker’s employer received adequate notice of the worker’s accident.

On June 20, 2012, Otis Nero was working on the road crew for the South Carolina Department of Transportation, based in Columbia, South Carolina, pulling a “squeegee board” to level freshly poured concrete. His supervisor ordered him to take a break because he appeared overheated. After he rested, he returned to work.

Around 3 p.m., Mr. Nero, his supervisor, the lead man and others were joking near the supervisor’s truck when Mr. Nero loss consciousness and fell to the ground. After he regained consciousness, he stood up, told his supervisors he was fine and drove home. He passed out again in his driveway after arriving home and his wife took him to a hospital, where he was diagnosed with cervical stenosis, a condition when the spinal canal narrows due to degenerative changes or trauma. He required a fusion neck surgery. He filled out paperwork for leave but did not specifically mention a “neck popping” incident the day he pulled the squeegee board.

On Jan. 6, 2014, he requested a workers compensation hearing, alleging that the injury he sustained stemmed from pulling the squeegee board. A commissioner held that Mr. Nero had a “reasonable excuse” for not formally reporting the work injury because the supervisor and others were present and knew the pertinent facts surrounding his accident, and because the employer was notified that Mr. Nero had been hospitalized and had neck surgery. The South Carolina Department of Transportation appealed, and the commission’s appellate panel held that although Mr. Nero’s supervisors witnessed his collapse, he never reported an incident involving a “snap” in his shoulders and neck, and held that his employer was prejudiced because it was “deprived of the opportunity to investigate the incident” and whether Mr. Nero’s work aggravated any preexisting condition.

Mr. Nero appealed, and the South Carolina Court of Appeals reversed and remanded the decision. While the court agreed that Mr. Nero never formally reported the mechanics of his injury, the court held there was undisputed evidence that the employer had adequate notice within the statutory requirement.

The court noted that both his supervisor and the lead man had witnessed his fainting incident, both called him when he was in the hospital and were aware that he needed neck surgery, and both knew that he did not return to work afterward. In addition, the court said the Department of Transportation had received notice from the surgeon regarding Mr. Nero’s condition and treatment, as well as his ability to return to work, leaving “simply no support in the record for the appellate panel’s finding that (the employer) lacked knowledge of (Mr.) Nero’s workplace injury.”

The court also held that Mr. Nero had a reasonable excuse for failing to provide notice within 90 days after the occurrence of the incident, noting that the lead man testified that neither he nor Mr. Nero reported the incident to the supervisor because he was “right there” at the time of Mr. Nero’s collapse.

The attorney for the Department of Transportation declined to comment on the decision. Mr. Nero’s attorney did not immediately respond to a request for comment.






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