Who Pays the Benefits in Repetitive Trauma Claims?

Post by Stan Lacy

This is my second attempt at this blog, because I found myself writing an epistle on a subject I thought would interest everyone: which carrier pays the benefits in a repetitive trauma claim?  When I got to page 3, I knew my blog was blown.  What to do?  Simple. I’ll save the epistle for our newsletter but summarize it in this blog. Perhaps this might whet your appetite to read our next newsletter.

So, what is the issue?  In a repetitive trauma claim, the injury occurs gradually over a long period of time.  During that time, the injured worker may have worked for several employers.  Should the benefits be apportioned among the employers and their carriers, or should the onus fall on one carrier?  Apportionment is not favored because it is too difficult to apply and places an impossible burden on the claimant to prove how much each job contributed to the injury.  Sound like an occupational disease?  Yes it does.  Enter the concept of “last injurious exposure,” which was applied in Geathers v. 3V, Inc in January 2007.  Last injurious exposure provided an easy to apply rule in occupational disease cases that took the burden of apportionment off the claimant and, over time, would equally affect every carrier.  But should it be applied in repetitive trauma cases?  No!  Why?  (For a detailed explanation, read the article when it is published in the newsletter.)
The short answer is the amendments to the Act that went into effect on July 1, 2007 solved the problem.  Those amendments include a notice provision that requires a claimant with a repetitive trauma claim to give notice of the claim “within 90 days of the date the employee discovered, or could have discovered exercising reasonable diligence, that the claim is compensable….”  SC Code Anno. §42-15-20(C). I read that language to mean the accident occurs as of the date the claimant knows he is injured and, with reasonable diligence, should know it is related to the employment.  The carrier on that day pays the claim.  This is an easy to apply rule that, over time, will spread the onus equally on all carriers.  So, in a nutshell, we don’t need no stinkin’ last injurious exposure rule in repetitive trauma cases.
– Be sure to watch out for my article.
About Ellen Adams

Ellen's 20-year career at Collins & Lacy has involved more than 1,000 cases. She practices in workers' compensation and also has experience in general litigation and professional liability. Read Ellen's Biography