Notice of Gradually Acquired Injuries: Does the Shipman Exception Apply to 34-9-80?

Under O.C.G.A. Sec. 34-9-80, an employee generally has 30 days from the date of injury to notify his supervisor that they have sustained a workers' compensation injury. There are several exceptions to this rule, and the 30 day time limit rarely will bar a Georgia workers' compensation claim. Notice also does not necessarily have to be written; rather, an employee simply telling his supervisor that he sustained a work-related injury will be sufficient to preserve his rights under the Georgia Workers' Compensation Act. As well, in serious cases where the employee is unable to notify his supervisor of the injury, a family member or a representative of the injured worker may notify the employee's supervisor of the injury. Additionally, in some cases, an employee does not have to necessarily state that the injury is a workers' compensation claim.  Georgia Courts have been extremely liberal in notice cases. To that end, some cases hold that simply notifying the employer that something is wrong will suffice. However, it is best to go ahead an notify the supervisor of the injury within the 30 day time limit to be safe.

But what about gradually acquired or cumulative trauma injuries? The late Professor Larson pointed out in his treatise on workers' compensation that the public policy behind the notice requirement is to give the employer time to investigate the claim while the evidence is fresh and to allow the employer the ability to mitigate its damages if possible. However, Georgia Courts have used the date the injury manifests itself (usually when the employee goes out of work) for determining when the statute of limitations begins for cumulative trauma or gradually acquired injuries. But that does not answer the question of when the 30 day notice period should begin to run for these types of injuries. The principal case is the Shipman case, which is why I have called this the "Shipman Exception" to the statute of limitations. Shipman v. Employers Mut. Liability Ins. Co., 105 Ga. App. 487, 125 S.E.2d (1972).

In Shipman, the employee was gradually losing his hearing. However, the employer knew about the gradual hearing loss because it had periodically performed hearing tests of its employees and knew that the employee was becoming deaf. (So notice was not an issue, as they were clearly on notice of the fact that the employee was losing his hearing.) The Court held that the date of injury, for statute of limitations purposes, would be the date the injury manifested itself; however, to my knowledge Georgia Courts have not specifically addressed when the 30 day notice requirement begins to run for notice purposes under O.C.G.A. Sec. 34-9-80 in gradually acquired or cumulative trauma cases. By inference, we all assume it would be 30 days from the date of injury (the date the injury manifests itself or the date the employee goes out of work due to the injury) because of how the statute literally reads when coupled Shipman's determination of when the actual date of accident is. However, in many cases, the purposes Professor Larson mentions are not satisfied here.

For example, assume a Georgia worker is working on an assembly line performing the same function over and over again with their hands. Assume also that the employee eventually develops carpal tunnel syndrome as a result of her job duties and sees their primary care physician (a non-panel doctor), and is told you are developing CTS, and it is directly related to your work duties on the assembly line. Shipman places no duty on the employee to report the gradually acquired condition to the employer until the injury manifests itself - often, the date the employee goes out of work. Thus, the employer does not have the opportunity to investigate the cause of the condition and mitigate its damages, i.e. moving the employee to a different position in the plant or altering his or her job duties. So what happens next? 

Theoretically, the employee could continue working in his or her capacity worsening their condition until they are unable to perform their job, and then give notice on the date the injury manifests itself. That is problematic for employers and does nothing to allow the employer to mitigate its damages or help prevent the employee's condition from deteriorating. Shipman does not, in my opinion, address this problem, and the policy behind notice is subverted in cases where the employee chooses to remain silent, for whatever reason, and worsens their condition. In the Court's defense, it did state that every case would have to be reviewed on a case-by-case basis, so there is the suggestion that if an employee knew of a condition that was work-related, and intentionally waited until that condition deteriorated to the point he or she could no longer work (as in the hypothetical), then they may be barred by O.C.G.A. Sec. 34-9-80 if the employer or insurer can prove the employee knew about it and did nothing. 

So what should the employer and employee do until the Courts answer this question? Certainly, we cannot require employers to perform routine physicals or questioning of its employees regarding their potential gradually acquired injuries in every occupation (although OSHA does require certain testing for certain professions). However, it would be ideal for employers to constantly stress to their employees to let their supervisors know if something is bothering them and assure them that they will be taken care of and medical treatment will be provided at no cost to the employee. In an ideal world that might work. But unfortunately many employees are afraid to report their symptoms for fear of losing their jobs and many employers are hesitant to go out of their way to stir up a potential workers' compensation claim. My thoughts are that the employee should give notice and not allow the condition to get worse. Plaintiffs, after all, do have a duty to mitigate their damages under Georgia law. In addition, employers should make it more clear to its employees how the Georgia Workers' Compensation Act works, advise their employees of their rights under the law, and encourage employees to report, report, report, even at the risk of claim creation. No one, defense attorneys, adjusters, H.R. Reps, or claimant's attorneys, want to see someone get hurt or make their condition worse. To be safe, employees should report the condition and the employer should appreciate their candor and make every effort to make the work environment safer for all of their employees while providing the necessary medical attention an honest employee deserves. 

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