Schurlknight v. City of North Charleston ( 2001 )

HOWARD, Judge,

concurring:

I concur in the reasoning and decision of the majority opinion. I write separately to clarify what I believe to be the distinction between the date of discovery of a compensable injury in Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639 (1992), and the date of discovery of a compensable injury in this case.

In Mauldin, the claimant first injured her knee on January 2, 1985. She reported it and received emergency room treatment paid for by her employer/worker’s compensation carrier. She was diagnosed with a knee sprain, and the injury was handled as a “medical only” claim, minor injury, and was then closed. Id. at 20, 416 S.E.2d at 640. During the next two years, she experienced intermittent swelling, which was diagnosed by her family physician as arthritis. Id. It was not until October 1987 that she experienced swelling which did not subside, at which time she was first diagnosed with a torn medial meniscus in the knee. Our supreme court ruled that under those circumstances, the claimant first discovered a compensable injury in October 1987 with the diagnosis of torn medial meniscus.

In contrast, Schurlknight was first told he had a permanent hearing loss significant enough to require a hearing aid in May 1995. By its very nature, this condition was not transient or minor. Furthermore, he was advised to protect his ears when the siren was blaring, which he felt he could not do without missing radio transmissions or traffic indicators. Therefore, under his own version of his job duties, this injury adversely impacted Schurlknight’s ability to perform as a fireman. Consequently, facts putting a reasonable claimant on notice of a compensable injury were available to Schurlknight in May 1995.

Although I agree that the above resolution is mandated by our Workers’ Compensation Act and caselaw, it is a harsh rule to apply in a repetitive trauma case. See Pee v. AVM, Inc., 344 S.C. 162, 543 S.E.2d 232 (Ct.App.2001). The employee is punished for continuing to perform the job during the early stages of the injury by denial of the right to make a legitimate claim for benefits when the injury finally renders the claimant unable to perform the job. Furthermore, it is likely to undermine the employee/employer relationship by requiring the employee to file an early claim even though he or she is still able and ready to work.

Repetitive trauma cases fall in between the traditional concept of “injury by accident” and “occupational disease.” They have some characteristics of each. See Pee, 344 S.C. 162, 543 S.E.2d 232 (Ct.App.2001). Other states have addressed this problem by ruling in repetitive trauma cases that the statutory period for filing a claim begins to run at such time as the employee is no longer able to work at his job. See, e.g., Ross v. Oxford Paper Co., 363 A.2d 712, 714 (Me.1976); Barker v. Home-Crest Corp., 805 S.W.2d 373, 373-74 (Tenn. 1991); 3 Arthur Larson & Lex K. Larson Larson’s Workers’ Compensation Law § 50.05 (2000). However, without further guidance from our supreme court, Mauldin cannot be extended to reach this result. Of course, the clearest resolution would be through legislative action that comprehensively addresses repetitive trauma injuries such as that involved here and carpal tunnel syndrome as found in Pee.