Submitted May 3, 2018
From The Workers' Compensation Commission
Stephen J. Wukela, of Wukela Law Firm, of Florence, for
Gabriel Coggiola, of Willson, Jones, Carter & Baxley,
P.A., of Columbia, for Respondent.
Nero lost consciousness and fell to the ground in the
presence of his two immediate supervisors while working on a
South Carolina Department of Transportation (SCDOT) road
crew. Nero argues the Appellate Panel of the Workers'
Compensation Commission erred in reversing the Single
Commissioner's findings that (1) SCDOT received adequate
notice of his workplace accident and (2) Nero demonstrated
reasonable excuse for-and SCDOT was not prejudiced
by-Nero's late formal notice. Upon our prior review of
Nero's arguments, we considered the question of timely
notice as a jurisdictional issue and applied a de novo
standard of review in reversing the Appellate Panel decision.
Nero v. S.C. Dep't of Transp., 420 S.C. 523, 804
S.E.2d 269 (Ct. App. 2017). Our supreme court granted
SCDOT's petition for a writ of certiorari and reversed,
reiterating that "timely notice under section 42-15-20
is not a jurisdictional determination, and must be reviewed
under the substantial evidence standard." Nero v.
S.C. Dep't of Transp., 422 S.C. 424, 812 S.E.2d 735
(2018). We now reverse the Appellate Panel because the
substantial evidence in the record does not support its
findings that Nero failed to provide SCDOT with adequate
notice of his workplace injury or that SCDOT was prejudiced
by Nero's late formal notice.
and Procedural History
20, 2012, Nero was working on a SCDOT road crew supervised by
lead man Benjamin Durant and supervisor Danny Bostick.
Nero's work, along with that of four or five other
members of the crew, involved pulling a thirty-foot-long
two-by-four "squeegee board" to level freshly
poured concrete. At some point during the day, Bostick pulled
Nero off the squeegee board temporarily because Nero appeared
overheated. After a break, Nero returned to pulling the
approximately 3:00 p.m., after finishing the day's work
and cleaning up, the crew, including Nero, Durant, and
Bostick, were talking and joking near the supervisor's
truck when Nero lost consciousness and fell to the ground.
Nero regained consciousness, stood up, told his supervisors
he was fine, and drove home. Once home, Nero passed out again
in his driveway. His wife immediately took him to the
hospital where he was admitted, diagnosed with cervical
stenosis, and treated by a neurosurgeon.
at the emergency room, Nero filled out a "History and
Physical Report" stating in part, "I passed out
talking to my boss." Nero was initially seen by his
primary care physician, Dr. Robert Richey. After a series of
tests, Dr. Richey determined Nero had cervical stenosis and
referred Nero to a neurosurgeon, Dr. William Naso, who
performed a fusion surgery.
9, 2012, prior to his surgery, Nero provided the
employer's human resources department with his
"SCDOT Certification of Health Care Provider for
Employee's Serious Health Condition (Family Medical Leave
Act)" paperwork. Nero did not specifically mention a
neck "popping" incident with the squeegee board in
this submission, but did report that he required neck
surgery. Under the section designated "approximate date
condition commenced," Nero wrote, "several
years-neck and syncope."
January 6, 2014, Nero filed a request for a hearing, alleging
he suffered injuries to his neck and shoulders while pulling
the squeegee board on June 20, 2012. The single commissioner
found Nero's claim compensable as an injury by accident
that aggravated a preexisting cervical disc condition in
Nero's neck. The single commissioner further determined
Nero had a "reasonable excuse" for not formally
reporting his work injury because (1) his lead man and
supervisor were present and knew of pertinent facts
surrounding the accident sufficient to indicate the
possibility of a compensable injury, (2) the lead man and
supervisor followed up with Nero, and (3) SCDOT was aware
Nero did not return to work after the June 20, 2012 incident.
Further, SCDOT was notified Nero was hospitalized and
ultimately had neck surgery. Finally, the single commissioner
found SCDOT was not prejudiced by the late formal reporting
of the injury.
appealed to the Appellate Panel. The Appellate Panel reversed
the single commissioner, finding that although Nero's two
immediate supervisors witnessed him collapse, Nero never
reported that an incident with the squeegee board involved a
"snap" in his shoulders and neck. The Appellate
Panel further found Nero's excuse for not formally
reporting was not reasonable and SCDOT was prejudiced because
Nero's late reporting deprived it of the opportunity to
investigate the incident and whether Nero's work
aggravated any preexisting cervical stenosis.
Administrative Procedures Act (APA) establishes the standard
for our review of Appellate Panel decisions. Lark v.
Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306
(1981). Under the APA, this court may reverse or modify the
decision of the Appellate Panel when the substantial rights
of the appellant have been prejudiced because "the
decision is affected by an error of law or is clearly
erroneous in view of the reliable, probative, and substantial
evidence on the whole record." Transp. Ins. Co.
& Flagstar Corp. v. S.C. Second Injury Fund, 389
S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010); see
also S.C. Code Ann. § 1-23-380(5)(d)-(e) (Supp.
2016). "The Appellate Panel is the ultimate fact finder
in workers' compensation cases, and if its findings are
supported by substantial evidence, it is not within our
province to reverse those findings." Mungo v. Rental
Unif. Serv. of Florence, Inc., 383 S.C. 270, 279, 678
S.E.2d 825, 829-30 (Ct. App. 2009). "Substantial
evidence is not a mere scintilla of evidence, nor the
evidence viewed blindly from one side of the case, but is
evidence which, considering the record as a whole, would
allow reasonable minds to reach the conclusion the
administrative agency reached in order to justify its
action." Taylor v. S.C. Dep't of Motor
Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 752 (Ct. App.
2006) (quoting S.C. Dep't of Motor Vehicles v.
Nelson, 364 S.C. 514, 519, 613 S.E.2d 544, 547 (2005)).
argues the Appellate Panel erred when it found SCDOT did not
receive adequate notice under section 42-15-20(A) of the
South Carolina Code (2015). We agree.
42-15-20 sets forth the requirement that an employee provide
timely notice of an accident to an employer, stating, in
(A) Every injured employee or his representative immediately
shall on the occurrence of an accident, or as soon thereafter
as practicable, give or cause to be given to the employer a
notice of the accident and the employee shall not be entitled
to physician's fees nor to any compensation which may
have accrued under the terms of this title prior to the
giving of such notice, unless it can be shown that the
employer, his agent, or representative, had knowledge of the
accident or that the party required to give such notice had
been prevented from doing so by reason of physical or mental
incapacity or the fraud or deceit of some third person.
(B) Except as provided in subsection (C), no compensation
shall be payable unless such notice is given within ninety
days after the occurrence of the accident or death, 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 prejudiced
42-15-20 requires that every injured employee or his
representative give the employer notice of a job-related
accident within ninety days after its occurrence."
Bass v. Isochem, 365 S.C. 454, 472, 617 S.E.2d 369,
379 (Ct. App. 2005); see also McCraw v. Mary Black
Hosp., 350 S.C. 229, 237, 565 S.E.2d 286, 290 (2002)
("Pursuant to S.C. Code Ann. § 42-15-20 (1985),
notice to the employer must be given within 90 days after the
occurrence of the accident upon which the employee is basing
her claim."). "Generally, the injury is not
compensable unless notice is given within ninety days."
Bass, 365 S.C. at 473, 617 S.E.2d at 379. "The
burden is upon the claimant to show compliance with the
notice provisions of section 42-15-20." Id.;
Lizee v. S.C. Dep't of Mental Health, 367 S.C.
122, 127, 623 S.E.2d 860, 863 (Ct. App. 2005) ("The
claimant bears the burden of proving compliance with these
42-15-20 provides no specific method of giving notice, the
object being that the employer be actually put on notice of
the injury so he can investigate it immediately after its
occurrence and can furnish medical care for the employee in
order to minimize the disability and his own liability."
Hanks v. Blair Mills, Inc., 286 S.C. 378, 381, 335
S.E.2d 91, 93 (Ct. App. 1985). Satisfaction of the notice
provision should be liberally construed in favor of
claimants. Mintz v. Fiske-Carter Constr. Co., 218
S.C. 409, 414, 63 S.E.2d 50, 52 (1951); Etheredge v.
Monsanto Co., 349 S.C. 451, 458, 562 S.E.2d 679, 683
(Ct. App. 2002). In Etheredge, this court concluded
"notice is adequate, when there is some knowledge of
accompanying facts connecting the injury or illness with the
employment, and signifying to a reasonably conscientious
supervisor that the case might involve a potential
compensation claim." 349 S.C. at 459, 562 S.E.2d at 683;
contra Sanders v. Richardson, 251 S.C. 325, 328, 162
S.E.2d 257, 258 (1968) (explaining that just because an
employer has knowledge of the fact that an employee becomes
ill while at work "does not necessarily, of itself,
serve the employer with notice that such illness constituted
or resulted in a compensable injury").
agree with SCDOT that Nero never formally reported the
mechanics of his injury to his employer. However, the
undisputed evidence in the record demonstrated SCDOT had
adequate notice within the statutory requirement. On the day
of the incident, Bostick became concerned about Nero and
temporarily pulled him off of the squeegee board
work. Later that day, as the crew was cooling
down and preparing to leave the job site, Nero lost
consciousness and fell to the ground. Durant and Bostick both
witnessed this. Both men called Nero while he was in the
hospital, and both were aware he needed to have neck surgery.
Both were aware that Nero did not return to work at SCDOT
following his surgery, and Nero filled out the necessary
leave paperwork through SCDOT's human resources
the undisputed documentary evidence in the record further
established notice. As early as July 13, 2012, SCDOT received
written notification from Nero's family doctor, Richey,
that Nero had been out of work since the date of his collapse
and needed neck surgery. In July and August 2012, SCDOT
received correspondence from Florence Neurosurgery and Spine
confirming Dr. Naso was treating Nero for cervical
radiculopathy. SCDOT corresponded with the medical provider
in November 2012 regarding whether Nero would be able to
return to work. There is simply no support in the record for
the Appellate Panel's finding that SCDOT lacked knowledge
of Nero's workplace injury-or of the cervical problems
for which he was being treated-for purposes of section
argues Nero omitted several crucial facts contrary to his
argument that a reasonably conscientious manager should have
been aware of a potential compensation claim. First,
"and most importantly," SCDOT points to the
"SCDOT Certification of Health Care Provider for
Employee's Serious Health Condition (Family Medical Leave
Act)" form (Exhibit 1), signed by Nero and Dr. Richey
and delivered to the human resources department in July
2012. Exhibit 1 states the approximate date
Nero's condition commenced was "several years-neck
and syncope." SCDOT contends Nero never actually
reported an "injury," despite his conversations
with both Bostick and Durant while hospitalized. SCDOT
further remarks on the medical evidence in the record,
however, the medical opinions it references address
causation, not notice.
deposition, Nero testified the injury to his upper back and
shoulders was a result of pulling ...