SC Supreme Court Urges Legislative Fix to Pre-existing Health Issue in Workers’ Comp

South Carolina lawmakers next year may be asked to revamp a workers’ compensation employment test that judges have relied on for more than 50 years, if the state Supreme Court has its way.

The court last week said that a 1973 doctrine, created by a state Supreme Court decision known as Cooper vs. McDevitt & Street, allows employers to deny workers’ comp benefits if the employee had misrepresented health information in the job application. But federal law – the Americans with Disabilities Act of 1990 – forbids companies from asking about health issues, including back problems, before deciding to hire.

“We are concerned … with the continued validity of Cooper,” reads the July 10 opinion in Brailey vs. Michelin and Safety National Corp.

The high court did not fully address the issues raised by the Cooper test because Michelin failed to demonstrate that Brailey’s alleged misrepresentation about a pre-existing back problem was a substantial factor in the decision to hire him.

“We cannot tell on the record before us whether this inconsistency between the ADA and Cooper will occur rarely or frequently, but as the Cooper test was written before the ADA was adopted, it simply does not work well anymore,” the justices wrote.

They added that other cases will likely have to confront the test.

“If necessary in future cases, the courts will address the problems with the Cooper test,” the per curiam opinion reads. “Our preferred course of action, however, would be for the General Assembly to take up this issue and resolve it legislatively.”

The Brailey decision upheld a state appeals court ruling, which had overturned the South Carolina Workers’ Compensation Commission. The commission in 2022 found four reasons for denying Brailey’s claim for compensation, including that the man failed to prove his claim was for an accidental injury at work, per statute. The commission also found that the injury could be considered “intentional” because Brailey had failed to inform Michelin that he had substantial back pain in the weeks before the claimed injury.

The appeals court reversed on all four grounds.

The high court justices also noted that by finding that Brailey was not an employee, bound by the exclusive remedy of the workers’ compensation system, the comp commission effectively allowed him to bring a tort action against his employer. But that creates its own issues.

“We find it unlikely the General Assembly intended that by committing fraud in an employment application the employee would regain the right to sue the employer in tort,” the justices wrote.

Attorneys for Michelin could not be reached for comment. The claimants’ lawyer, Stephen Samuels, in Columbia, said lawmakers should address problems with the questionnaire that many employers use about pre-existing health problems. The questions are confusing and misleading to workers and have been taken advantage of by some employers, he said.

In Brailey’s case, the worker had sustained a minor back strain more than 20 years earlier. The Michelin questionnaire did not make it clear that failing to mention such an old and minor injury could later result in a denial of workers’ comp benefits or could be considered a material misrepresentation.

“I would like to see them create protections for the innocent, injured worker, such as Mr. Brailey, to avoid the kind of abuse that occurred in his case,” Samuels said. “If we’re going to call this ‘fraud in the application,’ then it needs to be treated as true fraud,” with clear warning to applicants.

Samuels noted that because the federal ADA preempts state law, there may be little a state legislature can do to resolve the conflict between the ADA and the Cooper test. But the Americans with Disabilities Act was created to ensure that employers make accommodations for people with existing conditions, he noted.

“It’s particularly urgent now because in 2007 South Carolina eliminated the second-injury fund,” Samuels said. Most states have done away with their subsequent-injury workers’ comp funds, which were created decades ago to encourage companies to hire injured veterans returning from war.

Without that fund in place to help cover latent claims arising from or related to prior injuries, employers are less likely to hire some workers, he added.