One of the struggles that people have when they get injured on the job is whether to tell their employers about the injury. It’s not surprising that people feel this way. The majority of the time an employee is just doing their work and something happens; they lift a box wrong, they pull on a cord, get tripped by an object they did not see on the floor, fall off of a chair or ladder, get electrocuted, have a car collision while driving parts from one store to the other. All of these examples are claims that would be covered by workers’ compensation because the employee is in the “course and scope” of their employment.
Usually when the injury is severe enough there is no problem with reporting to the employer. It’s those cases where the employee feels a pop in their back and thinks that they just strained their back and a few days of rest will solve the problem. Those few days pass and they keep hoping they will feel better and then after a week or more (I’ve actually seen people wait over a month to report an injury) they finally decide that it’s bad enough, and they aren’t getting better, so they have to report it.
The problem with this scenario is that the workers’ compensation laws require that you notify your employer of an injury which occurred on the job within four days, and it must be in writing. When employees wait longer than four days to report the injury, the problems begin to mount. First, a failure to report an injury immediately allows the employer and/or the insurer to review the injury with an extremely skeptical eye. They look to see if there are witnesses who saw the incident, but it’s not unusual that there may have been other employees present, but the injured worker doesn’t mention the injury to them. The other thing that can happen in these situations is that the insurer may decide to continue investigating the claim and then later decide on whether to admit responsibility for the workers’ compensation benefits or not. They can send the injured worker to one of their own doctors and let’s be honest, they don’t send you to these people without knowing what those doctors are going to write. I generally tell my clients that they need to be cooperative and nice to these “independent” doctors, but that they should not expect the doctor to be issuing a report that will be favorable to them. This then often leads to the insurer sending a notice to the employee that they are declining coverage for the injury and are contesting the claim (called a Full Contest). When this happens, the only thing the employee can do is set a hearing with the Division of Workers’ Compensation and present their case to an administrative law judge (workers’ compensation cases are all handled by judges in the workers’ compensation system, there are no juries). In this situation, the employee has to prove to the judge (by a “preponderance of the evidence” – see my blog on burden of proof) that their injury occurred in the “course and scope of employment” and not while they were playing a sport or doing some other activity unrelated to work. When this happens, the costs of proving the case go up significantly because the injured party has to bring doctors to trial (they are expensive – $250 to $350 per hour on average, though some are much more) and then the employee is going to have to testify as well and explain why he or she did not file the notice when they were injured.
Second, there is a penalty that can be requested by the insurer for every day that an injured employee waits to report the injury beyond the four days required. That penalty can be up to a full day’s compensation to the injured worker for each days failure to report the injury beyond the initial four days. The caveat is that in order to get the penalty, the employer would have to prove that the employee had notice, but the likelihood is that most employees are given notice in their break rooms or other common area where signs are often located pertaining to an employee’s rights and responsibilities when they are injured on the job. If they have such signs, they can prove the employee had notice of the requirement (even though most people do not pay attention to those signs and are usually surprised when they realize what those signs are for) and the judge can then impose the penalty.
Finally, the biggest problem failure to report causes is that it makes it extremely difficult on the employee to prove that they really did sustain the injury because by the time of the reporting, unless there were witnesses, any possible evidence of the injury or its cause is likely gone. When this happens it becomes an uphill battle to prove the injured worker is entitled to workers’ compensation benefits.
In the end, it’s an easy solution to this problem. Just report your injury within four days after it happens. Better yet, report it immediately. It’s almost impossible for insurers to challenge claims that were reported immediately, but if they do, the employee has the advantage of being able to say that he or she reported it immediately which puts the pressure on the employer/insurer to prove otherwise. Also, if you get injured on the job and are not sure what to do or you’re feeling alone and intimidated by your employer who has all of the advantages on their side, call us at 719-633-6620 and let us even the playing field. But most of all, report it.