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That Dog Don’t Hunt? Really?

E. Courtney Gruber

Our faith in the WC Workers Compensation Commission and its ability to properly apply statutory and applicable case law was once again confirmed with a recent decision I received on a denied repetitive trauma case.  The Claimant, a 54 year old woman, had been with the employer for over 30 years.  She had spent the last 12 years as a payroll entry clerk.  She filed a claim alleging that she injured her neck and both arms, which occurred as follows: “Claimant developed bilateral carpal tunnel while working …as a date entry and payroll clerk”.  She listed her date of “accident” as June 11, 2014.  We denied the claim on statute of limitations, notice, and compensability.  The hearing commissioner denied the claim based on notice and statute of limitations.  She did not reach the issue of compensability.

42-15-20 (c) requires that an employee report a repetitive trauma injury to the employer within 90 days of the date the employee discovered or could have discovered by exercising reasonable diligence that her condition is compensable, unless reasonable excuse is made to the satisfaction of the Commission.  The Commission also has to be satisfied that the employer has been prejudiced by the failure to provide timely notice.  Current case law has defined when a claimant discovers her claim is compensable as when she either seeks medical treatment for it or misses time from work.  After that point in time, a “triggering event,” she has 90 days to report the injury to the employer.

42-15-40 requires a Claimant to file a repetitive trauma claim within two years of the date she knew or should have known her claim was compensable.  We have successfully been able to argue that the triggering event is the same as the notice statute.

The Claimant initially started complaining of work related back pain in July of 2011.  Later that year, she was treated for neck and shoulder pain that she attributed to computer work.  She consistently sought and received medical treatment for tingling, pain, and numbness down her right arm, and in March of 2013, she added tingling to the fingers of the right hand to the list of problems.  The report from that time clearly stated that “she works at a desk/computer all day and feels this has exacerbated her symptoms.”  In nearly all of the medical notes, she attributed her work activities as contributing to her condition.  It was initially believed that her condition was related to cervical spine issues, and she underwent a cervical fusion in June of 2013.  When her symptoms were not relieved, EMG/NCS studies were done, which confirmed carpel tunnel syndrome on the right, and a carpel tunnel release was done in February of 2014.  The Claimant applied for and received short term disability for the time she missed from work.

The Claimant testified that she never really had neck pain, but had consistently had the same problem since 2011.  The Claimant testified at the hearing that she had mentioned her pain to the plant nurse on several occasions, but there was no record of those complaints.  The Form 50 was not filed until May 8, 2015.

The Claimant, through her attorney, argued that neither statute can begin to run until there is a definitive diagnosis.   The Commission found that neither statute requires a definitive diagnosis for the time to begin to run.

One of the requirements for the notice statute to bar a claim is that the Commission has to be satisfied that the delay in providing notice has prejudiced the employer.  The Claimant’s attorney argued that the employer could not show prejudice in this case, regardless of whether or not the claimant had provided notice.   His reasoning on this point was interesting, as he said that had the employer gotten timely notice, they would simply have brought in an ergonomist and made a determination as to whether or not the work was repetitive, and, if the ergonomist had concluded the work was repetitive, they would have taken whatever remedial steps were necessary to improve the safety of the work station.  Obviously, the employer was not afforded the opportunity to take this action because there was no notice.  The Claimant’s attorney went on to point out that the employer, in preparation for the hearing, had hired an ergonomist, and the ergonomist had opined that the job as performed was not repetitive. He went on to point out that the employer took the same action it would have taken had notice been timely provided, and the result was the same, so how could there possibly be prejudice?  In fact, he seemed incredulous that notice and prejudice to the employer were even issues he had to address.  He used a particularly colorful expression to summarize his argument when he told the commissioner, “That dog just don’t hunt.”

The hearing commissioner specifically found that the employer had been prejudiced because the Claimant had considerable medical treatment including a two level cervical fusion and a carpal tunnel release prior to providing notice and that the employer was deprived of the opportunity to conduct discovery and direct medical treatment.  She obviously believed that the dog did, in fact, “hunt.”

The hearing commissioner also found that the Form 50, filed May 8, 2015 was beyond the statute of limitations and that the last date the statute could have begun to run was March 6, 2014 when the Claimant was noted by her doctor to have tingling in her fingers.

In this case, the claimant had used short term disability for her absences, which she also claimed was tantamount to providing notice to the employer.  Her argument was that the employer knew she had carpal tunnel surgery done and missed time from work; therefore that constituted notice to toll the statute.  The hearing commissioner disputed that, confirming that notice requires more than just knowledge on the employer’s part of a medical condition; it has to go further and make some connection to the job.  The employer has to have enough information to know that a work related injury is being claimed for notice to be provided.  They do not have to simply presume that a repetitive trauma injury is related to the work.

We are seeing that repetitive trauma cases continue to live and die by what is in the medical records, and specifically what the claimant tells the doctors as to the possible connection to the work performed.  The point at which the Claimant tells her doctor that she believes activities at work might have something to do with her repetitive trauma injury is at least one point at which the clock starts to tick for notice and statute of limitations.