A South Carolina worker for the state’s Department of Transportation was found to be eligible for benefits even though he did not file a report of injury, because his supervisor was present with him at the time of injury.

Otis Nero worked for the South Carolina Department of Transportation (SCDOT) and was working on a road crew on June 20, 2012 to level fresh concrete. His supervisor Danny Bostick was present, and at one point during the day had Nero take a break from the “squeegee board” used to level the concrete because he seemed overheated. Nero returned to work. But later that day he had become unconscious and had fallen down while talking with his co-workers and his supervisor. He told everyone he was fine and drove home from work, but fell unconscious again in his driveway. His wife drove him to the hospital.

His primary care doctor, Dr. Robert Richey, diagnosed him with cervical stenosis and referred him to Dr. William Naso, a neurosurgeon who performed a spinal fusion procedure. Dr. Richey later testified that he thought his cervical stenosis was a preexisting condition that was aggravated when Nero pulled the squeegee board and that, in combination with the heat they were working in, caused the syncope (fainting).

Nero had given his employer paperwork for his “SCDOT Certification of Health Care Provider for Employee’s Serious Health Condition (Family Medical Leave Act)” on July 9^th before his spinal surgery. He did not include the incident at work and said that his neck and fainting conditions had started several years earlier but he had never received treatment for back or neck issues.

He filed a request for a hearing on January 6^th of 2014, stating that he suffered injuries at work while pulling the squeegee board. The commissioner found that it was compensable because it was an accident that aggravated an existing condition. The commissioner determined he had a reasonable excuse for not formally reporting his injury because his supervisor was present at the time and had followed up with him, and his employer knew that he had not returned to work after that accident and had undergone surgery after his hospitalization. His employer appealed and the Appellate Panel reversed the commissioner’s decision because he never reported that the incident at work involved a “snap” in his neck and his excuse for not reporting the event was not reasonable. They said that because he had not reported the incident he had not given his employer adequate notice and they could not properly investigate the accident.

The South Carolina Court of Appeals overturned that decision and awarded Nero benefits. They found that his employer had received adequate notice and Nero’s reasoning for not formally reporting the injury was reasonable. It happened in the presence of his supervisor, so the fact that he never formalized a notice could be excused. His supervisor had visited him in the hospital after the incident. His employer was aware that he had undergone the procedure and not come back to work after the accident.

Read the case here.