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The Importance of Being Consistent

Leslie Whitten

Last week, the Supreme Court published an opinion reversing the Court of Appeals in a case called Hartzell v. Palmetto Collison.  Mr. Hartzell testified that he injured his back moving heavy equipment at work on or around February 25, 2009.  He said that he told his supervisor the next day that he was “pretty sore” and “must have hurt” himself.  Mr. Hartzell’s supervisor testified that this conversation did not “ring a bell.” Apparently there was no further conversation between Mr. Hartzell and his supervisor about an alleged injury, and then Mr. Hartzell requested a hearing on May 10, 2010.

S.C. Code Ann. § 42-15-20 requires that an injured worker provide notice of a work injury to the employer within 90 days of the injury. If the worker does not do so, his or her claim may be barred, whether or not the worker was actually injured on the job. So the entire question here was whether this alleged conversation on February 25, 2009 actually occurred.

The Single Commissioner and Full Commission both believed Mr. Hartzell’s testimony that he provided notice to his employer the day after his injury and found his claim compensable.  The Court of Appeals reversed, finding that there was not substantial evidence to show that Mr. Hartzell actually provided adequate notice.

Last week, the Supreme Court reinstated the decision of the Commission.  The Court noted that the Commission is the finder of fact. The Commission believed the Claimant’s testimony that he told his supervisor that he must have hurt himself the day after the injury.  It would not be up to the appellate courts to disregard the Commission’s conclusions on this factual issue.

So, at the end of the day, this is another case to demonstrate that the appellate courts do not like to overturn the Commission on factual issues as long as there is evidence to support the Commission’s decision.  This is nothing terribly new.

The important lesson to take from this case as an employer is “document, document, document.”  Every time a worker tells you that he or she has been injured, it is essential that you immediately commit that to writing, whether it be in the form of a written statement or preferably a First Report of Injury.  Even if the worker indicates that they don’t want to go to the doctor, get the accident description in writing.  If Mr. Hartzell’s supervisor had been in this habit, his testimony would have been that he could say with certainty that this conversation never occurred because he would have immediately completed a First Report of Injury, as was his consistent practice.  In the alternative, if the conversation did take place and had been noted, it would have avoided costly legal expenses.

In this case, Mr. Hartzell testified that he had a clear recollection of providing notice, and Mr. Hartzell’s supervisor could not refute that testimony with any degree of certainty.  In those circumstances, the fact finder is not left with many options.