Claimants Not Expected to Be Diagnosticians

If a employee fails to file in a timely manner, can workers’ compensation be collected? Here’s what Tom Robinson, JD, writer for Lexis-Nexis Work Comp Law Center says:

Here’s What Happened
A South Dakota worker felt a “pop” in his upper back, between his shoulder blades, as he moved a box of siding from one side of the jobsite to the other. He also felt numbness from his upper-left arm down to his fingers. Although he described the pain as “intense,” the sensation did not cause him to drop the box. He continued to work during the remainder of the day and although the pain subsided somewhat, he continued to have some discomfort.

He later said he thought he had pulled a muscle and that it would get better on its own. Three months later, when his upper back pain had not improved, the worker sought medical attention. Eventually he was treated by a neurosurgeon, who diagnosed the worker’s condition as a “herniated disk with a calcific spur on the left at C7-T1.” The physician indicated the worker needed an anterior cervical decompression and fusion at C7-T1.

The worker filed a workers’ compensation claim, which was denied by the insurer on the grounds that the worker had not provided the necessary notice of injury to the employer within the statutorily prescribed three-day time period.

The Department of Labor held that the worker did not immediately recognize the nature, seriousness and probable compensable character of the injury, and upon that recognition, the worker made a first report of injury. The Department concluded, therefore, that the worker “had good cause for failing to give written notice within the three business day period [required under SDCL 62-7-10].”

The circuit court reversed, concluding that the Department erred by using a subjective, rather than objective, standard in determining whether the worker complied with the statutory notice requirement. Furthermore, the court held that, under an objective standard, a reasonable person of the worker’s education and intelligence would have given timely notice to the employer.

Here’s How the Court Ruled
In McNeil v. Superior Siding, Inc., 2009 SD 68; 2009 S.D. LEXIS 133 (July 29, 2009), the Supreme Court of South Dakota reversed. Acknowledging that SDCL 62-7-10 1 generally required that an employer be provided written notice of a compensable injury within three business days of its occurrence, the court noted two exceptions to that rule: (a) where the employee could prove the employer had actual notice, or (b) if the employee had good cause for not providing notice within a three-day period. The court observed that the “good cause” determination should be liberally construed in favor of the employee [SDCL 62-7-10] and that the purpose of the written notice requirement was to give the employer the opportunity to investigate the injury while the facts were still accessible.

Citing Larson’s Workers’ Compensation Law, the court indicated that it was well settled that the time period for notice or claim did not begin to run until the claimant, as a reasonable person, recognized the nature, seriousness and probable compensable character of the injury or disease. The court observed that on two prior occasions, the worker had filed claims for lower back injuries, that on each of those occasions the pain had been so severe that he had to stop working, that in the case at bar the worker had testified that he felt a “pop,” but the incident was not so severe that he dropped the box and he continued to work the remainder of the day without stopping.

Based on all of these facts, the court concluded that a reasonable person of the worker’s education and intelligence would not have realized the nature, seriousness and probable compensable character of the injury prior to the date he informed the employer. The court stressed that the fact that a claimant suffers from pain and other symptoms is not the determinative factor. Moreover, claimants are not expected to be diagnosticians.

See generally Larson’s Workers’ Compensation Law, § 126.05.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: [email protected].
http://law.lexisnexis.com/practiceareas/Workers-Compensation