he Importance of Giving Notice of an Injury
As a certified specialist workers’ compensation lawyer, I frequently grapple with how to get the best results for my clients who come to me with challenging circumstances. Those same clients could have saved themselves, and me, some trouble, by giving prompt notice of their work injuries to their employers.
It is no surprise that workers’ compensation insurance carriers look for any plausible reason to deny a claim. A delay in receiving notice of the injury is certainly one of the reasons often cited for denials.
Ironically, many employees feel pressure not to report injuries when they occur, especially when they seem minor. People who work in physically demanding jobs get seemingly minor bumps and bruises all the time, and would understandably feel awkward about giving notice of an “injury” for each of these occurrences. Their choices to fail to give notice of an injury, however, when the injury turns out to be more serious then originally thought, can come back to bite them.
Workers’ compensation law requires that the injured worker give notice to his or her employer of an injury. Once that notice is given, the employer has an obligation to investigate the claim, and to accept it or deny it, using a Bureau of Workers’ Compensation form, within 21 days. Compensation is only payable from the time notice is given, and failure to give notice of an injury within 120 days will result in the failure of the claim.
Many cases have been litigated over what happened during this first 120 days. Sometimes the injured worker does not realize her or she is even injured. Sometimes the employee is new to the company and does not want to make waves by attempting to pursue a work injury claim even knowing that the injury happened at work. Sometimes the injured worker makes a conscious decision to pursue benefits under a short-term disability policy rather than pursue workers’ compensation benefits. These decisions, while understandable, can really make my job harder.
A favorite tactic of workers’ comp defense attorneys is to attempt to argue that the injury which happened at work did not really happen at work. Prompt notice of the injury by the employee can take the teeth out of that argument.
For instance, I represented a client who was walking on a construction site and a piece of metal cut him on the shin. Days later, he became very sick with a blood infection. His doctor was able to relate the infection to the small cut he sustained. In that case, he had emailed his supervisor about the cut before the infection even occurred. Had he not given that notice, I might not have been successful for him in the case.
There have been many cases in which the claimant prevailed because he or she gave prompt notice of the injury. A number of years ago, a worker using the bathroom suffered a back injury getting off the toilet at work. Had he not immediately given notice of the claim to his supervisor, he may not have been able to win that claim.
Occasionally, especially in areas of diseases which take some time to manifest, the worker may not even know that he or she has contracted the disease, or that it was work-related, for quite some time, perhaps even after leaving the job. In these cases, our courts have said that the claimant must exercise reasonable diligence in giving notice, and that notice must be given when the claimant knew or should have known about the work-relatedness of the injury or disease.
Employers also have been known to shirk their responsibilities to notify their workers’ comp insurance carriers when their employees have in fact given notice of a work injury. This is a big mistake, both for making sure that their employees are promptly treated for their injuries so that they can get back to work as soon as possible, and also because failing to tell their insurance carriers about the injury will jeopardize their own insurance coverage under the policy. The insurance carriers may want to deny a claim about which they were not told for weeks, but if the employer had knowledge of the injury, the carrier may be in trouble for not having accepted or denied the claim within 21 days of when the employer had notice of the injury.
The bottom line to this whole discussion is that both employers and employees should understand their obligations, and should promptly give notice of any injuries, no matter how insignificant they might seem. A written incident report, or at least an e-mail or text, can make the difference between winning and losing a case. When in doubt, consult with an experienced workers’ compensation attorney to discuss the situation so you can understand the implications of your choices.