I. Notice
A. General
South Carolina's Workers' Compensation Act, like many other states' acts, imposes two separate time limitations on the employee: one for giving the employer notice of the accident and a second for the filing of a claim. This section of the chapter deals with the time limitation for giving the requisite notice for non-occupational disease claims. (The notice period for occupational disease claims is treated in the chapter on occupational diseases.) The time period for filing a claim is dealt with, infra, in the section on statute of limitations.
Section 42-15-20 actually provides two time limitations for giving notice. The section first states that "[e]very injured employee or his representative shall immediately 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."1
Employees are not entitled to either physician fees or other compensation benefits until such notice is given "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."2
In addition to the requirement of giving notice to be entitled to immediate medical benefits, Section 42-15-20 provides "[n]o 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 such notice and the Commission is satisfied that the employer has not been prejudiced thereby."3
South Carolina courts have denied compensation to those injured claimants who fail to provide notice to their employers within 90 days of the accident. In Hargrove v. Carolina Orthopaedic Surgery Associates, the claimant had her work accident in September of 2003, but her employer had no knowledge of the accident until April of 2005, when it received a subpoena for the claimant's medical records.4 In response to the claimant's Form 50, the employer alleged in its Form 51 that "the claim should be barred under § 42-15-20 [because] notice of injury was not given to the employer within ninety days as required."5 The hearing commissioner agreed with the employer, finding that the claimant had failed to meet the statutory requirement regarding notice to the employer of a workplace injury.6 Both the Appellate Panel and the circuit court affirmed the order of the hearing commissioner.7
As stated above, the time period for the giving of notice commences from the date of the accident, not the date of the injury. "In the case of occupational diseases, the 'accident' occurs when the employee becomes disabled and could, through reasonable diligence, discover that his condition is a compensable one."8 However, Section 42-15-50 provides "[n]o limitation of time provided in this Title for the giving of notice or making claim under this Title shall run against any person who is mentally incompetent or a minor dependent as long as he has no guardian, trustee or committee."9
Prior to 1974, the employee was required to give such notice in writing. Currently, "[s]ection 42-15-20 provides no specific method of giving notice...,"10 and after 1974, "oral or actual notice was sufficient."11 The filing of a workers' compensation claim within 90 days satisfies the notice requirement.12 The notice must apprise the employer only of a job-related accident, and not the full extent of the injury.13 The burden is on the employee to show compliance with the notice provisions.14
The purpose behind the notice provisions was stated by the Supreme Court in Mintz v. Fiske-Carter Construction, as follows:
The provision for notice should be liberally construed in favor of claimants, but there are limitations upon that rule and the statutory requirement cannot be disregarded altogether. Its purpose is at least twofold; first, it affords protection of the employer in order that he may investigate the facts and question witnesses while their memories are unfaded, and second, it affords the employer opportunity to furnish medical care of the employee in order to minimize the disability and consequent liability upon the employer.15
"[T]he required notice is not to be treated as a mere formality or technicality and dispensed with as a matter of course...,"16 and a number of cases have been remanded by the Supreme Court to the Workers' Compensation Commission when the Commission failed to find the employee had a reasonable excuse for his failure to give notice and the employer was not prejudiced thereby.17 For instance, in Gray v. Laurens Mill, the Supreme Court, noting the Commissioner's order merely stated in conclusory terms "'that the defendants have not been prejudiced in their investigation of the claimant's claim,'"18 remanded the case to the Commission with the admonishment "the Commission should 'make such specific and definite findings upon the evidence reported as will enable this court to determine whether the general finding or conclusion should stand, particularly when there are material facts at issue."'19
The employee in Aristizabal v. I.J. Woodside-Division of Dan River, Incorporated, argued the Commission, by making a compensation award, implicitly found the requisite notice had been given.20 The Supreme Court rejected this argument, stating, "an implied finding is not enough. If a material fact is contested, the hearing commissioner must make a specific, express finding on it."21
B. Justification for Failure to Give Notice
Section 42-15-20 contains two separate escape clauses for the employee's failure to give notice. First, the employee may be entitled to medical benefits prior to his giving notice if the employer had actual knowledge, or if the employee's physical or mental incapacity, or the fraud or deceit of some third person, prevented him from giving the notice. Few, if any, cases have construed this portion of the statute.22
An employee's failure to give notice within 90 days of the accident or death acts as a complete bar to compensation unless (1) the employee demonstrates a "reasonable excuse" for his failure to give notice, and (2) the employer has not been prejudiced.23 "[L]ack of prejudice does not justify compensation unless the requirement of reasonable excuse is also satisfied."24
Although this portion of the statute makes no mention of mental or physical incapacity or the fraud or deceit of some third person, presence of one of these factors would constitute a reasonable excuse in appropriate cases. A number of cases, as described below, have discussed this portion of the statute.
Larson states as additional excuses:
Since the purpose of the notice requirement is to enable the employer to protect himself by prompt investigation and treatment of the injury, failure to give formal notice is usually no bar if the employer had actual knowledge or informal notice sufficient to indicate the possibility of a compensable injury, or if the employer furnished medical service or paid some compensation, or, in many jurisdictions, if the employer was not prejudiced by the lack of notice. Moreover, since the law does not exact the impossible of the employee, lateness of both notice and claim may be excused for various reasons, including the following: Impossibility of knowing that an apparently minor accident would later develop into a compensable injury; reasonable inability to recognize a disease or disabling condition in an early or latent stage; medical opinion that the injury is not serious or is nonindustrial; voluntary payment of benefits by the employer, or assurances that the employee will be taken care of, inducing the employee to refrain from making claim; and disability preventing the making of the claim, due to mental or physical incapacity, minority, and the like. Some statutes, however, by making the claim period run from the date of the "accident," have produced holdings that an injury which manifests itself for the first time after the period has expired is nevertheless barred. The right to assert the statutory bar can, in most jurisdictions, be lost by waiver, through the payment of compensation, the failure to raise the defense promptly, or the admission of liability.25
1. Employer's Actual Notice
Because the purpose of South Carolina's notice provision is "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,"26 it follows that no formal notice is generally required where the employer had actual notice of the accident. "[A]n employer cannot claim prejudice where its knowledge of the pertinent facts was as full as would have been disclosed by the written notice had such been given."27
Actual notice has been found where the decedent's foreman had knowledge of the accident and had a conversation with the decedent about it even though the foreman had no knowledge the decedent suffered an injury as a result of the accident;28 where the decedent's wife went to see his employer while the decedent was in the hospital with reference to paying the decedent's medical and hospital expenses and his primary doctor wrote the owner of the jobsite the decedent suffered lead poisoning;29 where "much testimony" indicated officials of the city where the claimant was employed knew of the accident and the city manager himself visited the claimant at his home while he was still in bed and was told by the claimant's wife that the city was responsible for claimant's condition;30 where the employer had to send another bus driver to pick up the bus where the claimant-driver left it after suffering a serious heart attack, and where the manager visited the claimant a number...
