Repetitive Trauma Injuries in South Carolina

1. Repetitive Trauma Injuries in South Carolina Presented by Commissioner Andrea Roche Richard V. Davis, Esq. Jeffrey S. Jones, Esq.

2. Repetitive Trauma Prior to July 1, 2007 • Prior to July 1, 2007, the Commission found repetitive trauma injuries compensable under Pee v. AVM, Inc., 352 S.C. 167, 543 S.E.2d 232 (2002). (The claimant developed carpal tunnel syndrome after working for the employer in various capacities beginning in 1987 in each of her jobs involving repetitive use of her hand). • The Supreme Court of South Carolina determined in Pee that a repetitive trauma injury was an “injury by accident,” and thus, compensable under the South Carolina Workers’ Compensation Act. • The Court found that a repetitive trauma injury qualifies as an injury by accident if it is an unforeseen or unexpected injury caused by trauma. • The employer contended that the repetitive event which caused the repetitive trauma injury was not unexpected but was part of the normal work activity. The employer argued there was “no accident” because the event causing the injury was not unexpected. • The Court focused on the unexpected nature of the injury, rather than requiring that the event causing the injury be unexpected, and stated that an injury is unexpected if a worker does not intend or expect the injury to occur.

3. The Creation of §42-1-172 • In 2007, the legislature adopted §42-1-172, which specifically deals with repetitive trauma injuries. • Section 42-1-172 applies to all injuries that occur on or after July 1, 2007.

4. The Statute: §42-1-172 • “Repetitive trauma injury” means an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events. Compensability of a repetitive trauma injury must be determined only under the provisions of this statute. • An injury is not considered a compensable repetitive trauma injury unless a commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection that is established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury. • As used in this section, “medical evidence” means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified physician. • A “repetitive trauma injury” is considered arising out of employment only if it is established by medical evidence that there is a direct causal relationship between the condition under which the work is performed and the injury. • Upon reaching maximum medical improvement, the employee may be entitled to benefits pursuant to Section 42-9-10, 42-9-20, or 42-9-30. Medical benefits for compensable repetitive trauma injuries shall be as provided elsewhere in this title.

5. The Definition of Repetitive Trauma • Section 42-1-172(A) defines a repetitive trauma injury as: “an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events.” • Section 42-1-172(A) also states that compensability must be determined under the provisions of §42-1-172. • No longer determine compensability under Pee v. AVM.

6. Required Findings for Compensability • §42-1-172(b) provides that an injury is not considered a compensable repetitive trauma injury unless: • A Commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection: • That is established by medical evidence, • Between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury.

7. Medical Evidence • §42-1-172(C) provides that “medical evidence” means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified physician. • Do “documents, records, or other material that is offered by a licensed and qualified physician” have to contain opinions that are stated to a reasonable degree of medical certainty?

8. Arising Out of the Employment • §42-1-172(D) provides that a “repetitive trauma injury” is considered arising out of employment only: • If it is established by medical evidence • That there is a direct causal relationship between the condition under which the work is performed and the injury • What is the direct cause requirement? • Is an aggravation of a pre-existing condition compensable under the direct cause requirement?

9. Benefits for Repetitive Trauma Injury • §42-1-172(E) provides that upon reaching maximum medical improvement, the employee may be entitled to benefits pursuant to: • §42-9-10, total loss of earning capacity • §42-9-20, partial loss of earning capacity • §42-9-30, scheduled disability • Does holding in Singleton v Young Lumber Co, 236 S.C 454, 114 SE 2d 337, (1960) apply? Singleton court held: where the injury is confined to the scheduled member, and there is no impairment of any other party of the body because of such injury, the employee is limited to the scheduled compensation, even though other consideration such as age, lack of training, or other conditions peculiar to the individual, effect a total or partial industrial incapacity. If claiming compensation in addition to that schedule for the injured member, claimant must show that some other part of his body is affected.

10. Notice Requirement • §42-15-20(C) states: “In the case of repetitive trauma, notice must be given by the employee within ninety days of the date the employee discovered, or could have discovered by exercising reasonable diligence, that his condition is compensable, unless reasonable excuse is made to the satisfaction of the commission for not giving timely notice, and the commission is satisfied that the employer has not been unduly prejudiced thereby.” • What does “compensable” mean?

11. Statute of Limitations for Repetitive Trauma Injuries • S.C. Code §42-15-40: • “For a ‘repetitive trauma injury’ as defined in Section 42-1-172, the right to compensation is barred unless a claim is filed with the commission within two years after the employee knew or should have known that his injury is compensable but no more than seven years after the last date of injurious exposure.” • “This section applies regardless of whether the employee was aware that his repetitive trauma injury was the result of his employment.” • Are these two sentences from the statute in conflict with each other?

12. A Defense Perspective • Questions to consider: • Was the claimant’s job repetitive? • Speak to the Employer • Need witness that can definitively testify about job • Review Job Claimant Performed • Claimant’s Deposition • What aspect of job does claimant say is repetitive? • How long has claimant been performing that job? How often? • Ergonomic Evaluation • Is there a causal connection between the alleged injury and the repetitive tasks? • Other employees develop same problem? • Medical Evidence • Doctor’s Deposition • IME • Show treating and/or IME physician a job video or plant tour • Ergonomic Evaluation

13. A Defense Perspective (Cont.) • Additional questions to consider: • When did the claimant learn his job was causing his condition? • Claimant’s Deposition • Was proper notice given? • Speak to the Employer • Claimant’s Deposition • Has the statute of limitations run?

14. Claimant Perspective • Age of Claimant and chronic conditions • Long term employee • Nature of job over many years

15. Claimant’s Attorney Perspective • Investigation • Similar injuries with same employer? • Does claim make sense? If not sure, speak with ergonomics expert. • Provide physician with detailed job description, video, ergonomics opinion, demonstration and THEN ask opinion on causation. • Medical research (is this an injury/condition caused by repetitive activity?) • When did the claimant first become aware of injury…symptoms? When did he report to employer? Physician? • Pre-existing medical conditions which could cause, aggravate, or contribute to the same symptoms?

16. Claimant’s Attorney Perspective • Proof of Repetitive Activity: • Claimant’s testimony to include good faith estimates of number of repetitions (break down activity into separate movements), how long employed…this position…changes in the job? • Demonstration of work activity (request that employer produce “samples” for demonstration). • Request access to employer’s premises to video the job…or, in alternative, that employer produce a video of the job as claimant performed it. • Have similar claims been filed against this employer…or other employers doing the same kind of activity? • Can the Commission take Judicial notice of similar claims? (probably not…but what if?) • Subpoena employers production records. • Request copy of employers written job description. • Ergonomics expert (plant inspection vs. interview with claimant?) • Co-worker? • Physician’s opinion…plant inspection by IME physician? • Cost? Will increased IME cost be approved?

17. Commissioner Perspective • Has anything really changed despite the new law? • What evidence is helpful for the Commission in analyzing a repetitive trauma injury case? • Claimant’s testimony • IME to address causation • Deposition of treating physician to address causation • Video of job • Ergonomic evaluation • Defense witnesses to address whether job repetitive