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Workers’ Compensation – Repetitive Motion Injury – Firefighter – Timely Reporting

By: S.C. Lawyers Weekly staff//December 14, 2022

Workers’ Compensation – Repetitive Motion Injury – Firefighter – Timely Reporting

By: S.C. Lawyers Weekly staff//December 14, 2022

Where the record shows that the claimant’s duties as a firefighter included lifting heavy objects on a regular basis, the claimant’s evidence showed a repetitive-motion injury to his back. It appears that the Workers’ Compensation Commission equated activities that are “repetitive” with activities that must be performed on a near constant basis to find that, because the claimant did not lift the same heavy object in the same way throughout each shift, he was unable to prove the admittedly “routine” and “frequent” lifting of heavy objects during his shifts as a firefighter were “repetitive” as required by S.C. Code Ann. § 42-1-172. Nothing in § 42-1-172 demands such a narrow construction of the word “repetitive,” and this narrow construction goes against the policy of the Worker’s Compensation Act, the plain meaning of the word “repetitive,” and South Carolina precedent.

We reverse the commission’s denial of the claim, and we remand for a calculation of benefits.

We also find the claimant (Claimant) presented competent medical evidence “that there is a direct causal relationship between the condition under which the work is performed and the injury.” § 42-1-172(D). Dr. Lindley was under no misapprehension about the duties Claimant was required to perform as a firefighter when giving his opinion about the cause of Claimant’s repetitive trauma injury, and it was his expert medical opinion that to a reasonable degree of medical certainty that Claimant’s repeated activity of picking up heavy objects and people caused Claimant’s L4-5 disc protrusion with radiculopathy, nerve impingement, and bowel and bladder issues. His expert medical was not “speculative” merely because Lindley did not distinguish among the repeated activities performed at Claimant’s job, the physical nature of his job, and the three incidents of significant pain detailed in Claimant’s Form 50 as the cause of Claimant’s injury. Lindley’s inability to pinpoint the injury’s onset is entirely consistent with a diagnosis of a repetitive trauma injury, which is defined by statute as an injury that “is gradual in onset and caused by the cumulative effects of repetitive traumatic events.” § 42-1-172(A).

To the extent Lindley equivocated in his deposition testimony, it was only when presented by the employer’s counsel with the legal artifice that he must independently investigate and corroborate Claimant’s patient history in order to form a competent opinion. This is “the classic fallacy known as the appeal to ignorance.” A medical expert may rely on a patient’s description of his job activities in determining whether the activities caused the repetitive trauma injury, and a medical expert does need to read an ergonomics report or independently investigate and corroborate a patient’s history in forming a competent opinion of the cause of a repetitive trauma injury.

The rejection of Lindley’s testimony on the basis that he could not rely on Claimant’s patient history in forming a competent opinion is error and demonstrates the commission has conflated its role of independent fact-finder with the role of a medical expert providing an opinion as to what conditions cause a repetitive trauma injury.

The reasons Claimant was denied recovery were warped by the commission’s too narrow definition of the word “repetitive” and the commission’s improper rejection of expert medical testimony.

We also reject the commission’s conclusion that Claimant failed to timely report his injury. Back pain is not the same as a back injury when evaluating the date a claimant reasonably should have known he has experienced a repetitive trauma injury.

Claimant, although experiencing and receiving treatment for back pain from 2014 until 2016, could not have reasonably known it was a compensable repetitive trauma injury until February 2017, when the pain from his gradual onset injury became so intense that he was unable to complete daily duties as a firefighter and he sought medical treatment from Dr. Cramer. Cramer diagnosed him with a significant injury and told him he would only be able to complete light duty work. The record is clear that Claimant reported this injury to Captain Reid within days of receiving this news from his doctor. Accordingly, the substantial evidence in the record does not support the commission’s finding that Claimant did not timely report his injury, and the ruling that Claimant is time-barred under S.C. Code Ann. § 42-15-20(C) from recovering compensation for his repetitive trauma injury is reversed.

Reversed and remanded.

Thompson v. Bluffton Township Fire District (Lawyers Weekly No. 012-032-22, 11 pp.) (Per Curiam) Appealed from the Workers’ Compensation Commission. David Holt Berry for appellant; David Alan Westerlund for respondent. S.C. App. Unpub.

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