Written by Andrew Willis, Esq.
Edited by Rachel Riordan, Esq.
Whether a claimant suffered an “injury by accident” that arises out of and occurs in the course of employment usually takes an undue amount of time during a recorded statement. The factual variations are endless and the black letter law is often blurred, making it hard to know where to focus your questioning.
Luckily, lack of timely notice is relatively straightforward and this defense is often neglected during recorded statements. In general, an injured worker needs to notify a supervisor of a work accident within 30 days. If an injured worker fails to give legally sufficient notice, that worker’s claim can be completely barred – even if they sustained a compensable “injury by accident.” In other words, lack of timely is a very powerful defense. It can give you a clear, reliable reason to deny an otherwise compensable claim. What follows are crucial questions to ask about notice during a recorded statement, along with a brief explanation of the law on notice.
1. Who Did You Tell?
The Workers’ Compensation Act requires notice to the “employer” pursuant to §65.2-600. Of course, this means some specific person. The cases discuss the need to tell a “foreman,” “superior officer,” or “supervisor.” In other words, telling a co-worker isn’t enough. Get the claimant to identify who the claimant considered to be the “boss” and find out whether the claimant told that person. Also, because there may be more than one supervisor, have the claimant list all supervisors, any other people the claimant believed should be informed of work accidents, as well as when and where any conversations reporting work accidents took place. Keep in mind, however, that this part of the notice requirement may be liberally construed. The statute states that the employee must give or “cause to be given” notice. If someone notifies a supervisor on behalf of the injured worker, this is sufficient. Similarly, if the “foreman” or “superior officer” has actual knowledge of the accident, this is sufficient, too, even if the claimant never told anyone at all. Get the claimant to confirm whether the employer paid the claimant’s medical bills or made other payments to the claimant within the first 30 days after the accident. The Workers’ Compensation Commission may consider these payments as evidence that the employer had notice of the accident.
If your insured is a statutory employer, these same principles apply. Statutory employers have the same right to notice as direct employers. However, the claimant will be excused from notifying a statutory employer in cases where the claimant was unaware of the contractor / subcontractor relationship. When dealing with statutory employer cases, focus on what the claimant knew about his employer’s relationship to your insured.
Finally, there are some less common circumstances when the injured worker must notify the insurance carrier directly. Sole proprietors, partners in a partnership, sole shareholders in a corporation, and sole members of LLCs all must notify the insurance carrier directly when seeking benefits. Independent contractors who have elected benefits under a general contractor’s policy may notify either the general contractor or the insurance carrier. Otherwise, except for these exceptional circumstances, notice to the employer is considered notice to the insurance carrier by operation of law.
2. What Did You Tell That Person?
Section 65.2-600 also states the injured worker must report the “nature and cause” of the accident. This means complaining of pain or merely symptoms is not enough. Find out whether the claimant in any way connected the claimant’s pain complaints or symptoms to an injury or incident that occurred at work. As noted above, there are numerous facts that can cloud the issue of whether an accident is compensable. However, the claimant’s failure to give the employer a reason to believe the claimant’s injury was somehow related to the claimant’s job could bar an otherwise compensable claim.
Further, the notice requirement is not limited to accident claims. Workers suffering from occupational diseases also must notify their employers of these diseases or face a forfeiture of benefits. Specifically, a worker suffering from the occupational disease must report the diagnosis of the disease within 60 days of the communication of that diagnosis to the claimant. The diagnosis must also relate the disease to the work. Although governed by a different notice statute than accident claims, occupational disease claims are subject to many of the same rules discussed above. An employee suffering from an occupational disease must notify an agent or other representative of the employer (as opposed to merely another co-worker). Similarly, a sole proprietor, partner, sole shareholder of a corporation, or sole member of an LLC must notify the insurance carrier of the occupational disease diagnosis.
3. When Did You Tell That Person?
In accident cases, the injured worker has 30 days to report an accident. In occupational disease cases, the worker suffering from the occupational disease must report the diagnosis of that disease within 60 days of the communication of that diagnosis. Unlike the rule regarding who a claimant may tell about an accident or disease, the rule on when the claim must be reported is highly technical. Reporting an accident even one day late may result in a total forfeiture of benefits. Get the claimant to be as specific as possible about the date of accident and date of reporting. If there are more than 30 days in between the two events, there is a strong likelihood notice will bar the claim unless reasonable excuse is given, as discussed below.
4. Why Didn’t You Report Your Accident Within Thirty Days?
If a claimant fails to report an accident within 30 days, it’s up to the claimant, if the case proceeds to an evidentiary hearing, to prove a “reasonable excuse” for the failure to report within 30 days. A common situation where failing to report is excused is where the claimant initially believed the injury to be “trivial.” For example, a claimant who experienced minor discomfort on his side that he later learned to be a hernia was excused from reporting within thirty days because it was impossible for him to know he had a hernia until it was diagnosed by a doctor. Similarly, another claimant who thought his arthritis was merely acting up was also excused from reporting.
If a claimant tells you that the claimant initially believed an injury wasn’t serious, question the claimant closely about what steps the claimant took to report the accident once a doctor diagnosed a serious problem. Although there is not a bright line rule for these situations, the cases that excuse claimants for late reporting usually take into account whether the claimant reported the injury as soon as possible once they learned of its seriousness.
In the absence of a reasonable excuse, a claimant who doesn’t timely report an accident cannot recover workers’ compensation benefits of any kind. Even if notice is timely, the employer is not responsible for paying any medical expenses prior to when they are given notice.
Conclusion
The notice requirement is a simple and powerful tool in evaluating whether to accept or deny a claim. Please contact us if you have any questions about notice and how to sharpen your questions during recorded statements.