Repetitive Trauma in Workers’ Comp

The South Carolina Supreme Court recently considered whether “ergonomics evidence” is admissible in a workers' compensation case regarding a repetitive trauma injury claim under section 42-1-172 of the South Carolina Code. Brooks v. Benmore Logistics Sys., Op. No. 28198 (S.C. Sup. Ct. Filed April 10, 2024) (Howard Adv. Sh. No. 14 at 12). The Court first held that section 42-1-172 requires a two-step analysis. First, a claimant must show that his job is repetitive. Second, the claimant must show that the repetitive actions he took at work were the cause of his injury. Id. at 20-21. The Court then concluded that ergonomics evidence has no relevance, and is not admissible, as to causation. Id. at 24.

Workers’ Compensation Background

Workers’ compensation laws are frequently referred to as “the Grand Bargain.” Employees give up their right to sue their employers for work-related injuries and employers give up their right to assert certain defenses that might otherwise be available in a typical injury lawsuit. But employees must navigate a complex system which involves a host of statutes and regulations in order to recover financially from injuries they sustain at work.

A contested workers’ compensation case is typically first heard by a single commissioner. Either party dissatisfied with the decision of the single commissioner may appeal the decision and the case will then be heard by an appellate panel (three commissioners) or the “full” commission (six commissioners) – either of which must exclude the original single commissioner who heard the case. Appeals from the appellate panel or full commission then go to the South Carolina Court of Appeals, and next to the South Carolina Supreme Court.

Brooks v. Benmore Logistics

Brooks worked as a “switcher” for Benmore Logistics which required him to move shipping containers around a shipping yard. He typically worked twelve-hour shifts and moved approximately forty-five to sixty containers per shift. Moving a container required Brooks to engage in the same series of tasks which he would perform every twelve to fifteen minutes. Brooks, Op. No. 28198 at 14.

Beginning in early January 2017, Brooks began experiencing back pain which continued to worsen resulting in him leaving the job on January 17, 2017. Brooks went to the emergency room on January 20 and was given an X-ray which revealed that he had degenerative disc disease. When he followed up with an employer-approved physician, he was given several work restrictions which Benmore was unable to accommodate. So, Brooks was unable to continue working because of his injuries.

The employer-approved doctor referred Brooks for further treatment of his “work-related injury,” but Benmore denied his workers’ compensation claim and ordered the doctor not to provide any further services to him. Brooks then went and saw another physician, Dr. Loudermilk, who provided Brooks with further treatment. Dr. Loudermilk diagnosed Brooks as having lumbar disk protrusion after conducting an MRI. Id. at 15-16.

In response to Brooks filing for workers’ compensation benefits, Benmore retained an “ergonomics expert” to assess the “ergonomic risk factors” that Brooks was exposed to in his job as a switcher. The expert prepared a report in which he concluded that there was no elevated risk of developing back pain from the tasks performed by a switcher. Id. Dr. Loudermilk, on the other hand, concluded that Brooks’ injury was caused by his work as a switcher and that his opinion was given to a reasonable degree of medical certainty. Id. at 17.

At his workers’ compensation hearing before the single commissioner, Brooks prevailed. The commissioner concluded that Brooks’ injury was caused by the repetitive tasks he performed at work. Benmore appealed that decision to the appellate panel which reversed, finding that Brooks’ job was not repetitive in nature. Brooks then appealed to the South Carolina Court of Appeals which reversed the appellate panel’s decision. Id. at 18.

The Court of Appeals first determined that section 41-1-172 does not require a claimant to show his job is repetitive in addition to showing that his injuries were caused by the repetitive actions he took pursuant to his job. It also found that the appellate panel erred in its reliance on the ergonomics report because an injured worker is not limited to recover injuries that are statistically likely to occur.  The Court of Appeals further concluded that the ergonomics report was inadmissible as to the issue of causation because the statute specifically requires such evidence be given by a medical doctor. Id. at 19.

Supreme Court Ruling

The Supreme Court disagreed with the Court of Appeals on its interpretation of section 41-1-172. In analyzing the plain language of the statute, the Court held that “[i]t is self-evident that, to receive compensation for a repetitive trauma injury, a claimant must first prove his or her job is in fact repetitive.” Id. at 21. And although the Supreme Court adopted this two-part analysis, it noted that the question of whether a job is repetitive will typically be subsumed by the question of whether the injury was caused by repetitive acts performed at work. Id. at 23.

In defining “repetitive”, the Court adopted the definition from a different workers’ compensation statute – section 42-1-160 – which indirectly defines repetitive as “a series of events in employment, of a similar or like nature, occurring regularly, continuously, or at frequent intervals in the course of such employment, over extended periods of time.” Id. at 21 (quoting S.C. Code § 42-1-160 (F)).

After adopting this definition of repetitive, it was quite obvious that Brooks’ job easily qualified as repetitive. He had to repeat the same series of tasks as many as 300 times per shift. In fact, right out of the gate at the oral argument in this case, Justice Kittredge (who authored the opinion here) and Chief Justice Beatty, both suggested that the claim that Brooks’ job was not repetitive was ridiculous.

The issue of causation in this case was only sightly more complex. Section 41-1-172 requires that a claimant prove causation by “medical evidence.” And medical evidence is defined as “expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.” S.C. Code § 42-1-172 (B) – (D). Physician testimony that is not stated to a reasonable degree of medical certainty, is not admissible on the issue of causation. So surely non-medical opinions and testimony are also not admissible on the issue of causation.

The Court held that the ergonomics report that was relied on by the employer in this case to suggest that Brooks’ injury was statistically unlikely to have been caused at work “was patently inadmissible on the causation element.” Brooks, Op. No. 28198 at 24. The only medical evidence offered in this case was that of Dr. Loudermilk who opined to a reasonable degree of medical certainty that Brooks’ injury was caused by the repetitive acts he took at work. The Court found this opinion to be controlling on the causation element. Id. at 25.

The Court left open the possibility that an ergonomics report might be admissible as to whether the job itself is repetitive. However, the Court used strong language against such reports being considered on the element of causation: “The use of a generic statistical report to conclude a claimant’s injury is unlikely and, therefore, not caused by his repetitive work activities is categorically rejected.” Id. at 27.

Conclusion

Claimants for workers’ compensation benefits in repetitive trauma injury cases should be aware that going forward they will need to prove that their job is repetitive, in addition to proving that the repetitive acts they took at their job were the cause of their injuries. And while medical evidence is required to prove causation, medical evidence is not necessary to prove that a job is repetitive. I suspect there may be continued fights regarding the use of ergonomics reports on that front.

adam@ruffinappeals.com

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Columbia, SC 29201