What are workers' compensation notice of injury requirements?

Most workers' compensation laws are administered by boards or commissions. Ideally, the workers' compensation systems are administered with a great deal of emphasis on efficiency.

In order to allow for an efficient benefit delivery system, states have imposed requirements upon employees to notify their employers of injuries and accidents within a certain time period after the accident or injury occurs. Employers are often required to respond to the notice by performing prescribed duties within an additional time period after receiving notice. It is with the notice of injury laws that the compensation procedure begins.

Employers are uniformly required to file accident reports with the administering agency. Similarly, the injured worker or claimant must file a notice of injury and an application for benefits within a specified period of time following an injury.

What are the time requirements for giving notice? Under most state laws, the employee must give the employer or insurer notice of the injury as soon as it is possible for the employee, or someone acting on his or her behalf, to do so. These time requirements allow the employer to investigate the circumstances causing the injury so that additional injuries may be avoided. Additionally, with a timely notice, the injured employee may receive prompt medical treatment.

In some cases, the time period is specifically set forth in a number of days, weeks or months. In other states, however, the time frame for reporting an injury is more ambiguous, requiring injuries to be reported as soon as practicable, or providing that injured employees are required to give immediate notice of their injuries to the employer. In several states injuries must be reported forthwith.

Even if an employee doesn't directly report an injury, actual notice to an employer may be enough to satisfy the notice requirement. When the employee receives medical attention immediately following the accident and/or the employer is able to commence a prompt investigation, it is possible that late notice or the failure to give notice will be excused because neither party suffered any prejudice.

Lack of prejudice is usually shown by proving one of two items:

1. the employee's medical condition was not aggravated by any intervening factors between the time the injury occurred and the time the employer gained knowledge of the injury; or

2. the employer would not have gained any additional information during its investigation had notice been timely filed.

Is late notice ever excused? Since the workers' compensation system is based on a no fault premise, it would be unfair to prohibit an employee from pursuing a legitimate claim because the required notice was delivered beyond the statutory deadline date. For that reason, most states will excuse a late notice for a variety of reasons, including the following:

• The employee had no way to know that an apparently minor injury would develop into a compensable injury at a later date.

• A medical provider indicated that the injury was not serious and/or compensable.

• Benefits were voluntarily paid by the employer before the employee provided any notice of the injury.

• Mental or physical incapacity prevented the employee from providing notice of the injury.

When does the time period begin to run? In most jurisdictions, the time period within which an employee is required to give notice of an injury or disease does not begin to run until the employee recognized, or should have recognized, the nature and seriousness of the injury or disease. In those jurisdictions that recognize the date of injury rule, the claims period usually runs from the time the injury becomes apparent. It is generally considered that once the injury is apparent, the claimant knows or should know that the injury was caused by an accident and is probably compensable.

Some states adhere to the date of accident rule, however. Under this view, notice must be served within a certain period of time from the date of the accident, rather than from the date the injury is discovered.

Are there special requirements for different injuries? Not all injuries or accidents must be reported within the statutory time frame. Certain types of injuries may not be susceptible to being reported within a specific time frame. And other special situations have special rules.

• Occupational diseases. Because an occupational disease may not manifest itself until years after the hazardous exposure, a problem arises with respect to time periods associated with the notice of injury requirements. Occupational diseases usually become evident during employment or soon after exposure to an injurious substance. However, as with radiation disabilities, certain diseases may be latent for a considerable period of time. Most states have extended the period in which claims may be filed and/or notice provided concerning latent occupational diseases.

• Latent manifestations of injury. Sometimes an injury does not manifest itself immediately after the accident. In these cases, a date of accident rule may operate harshly to bar a claim, since the employee may be unaware of the existence of a compensable injury until after the statutory time period expires. Most jurisdictions, however, apply the date of injury rule to these situations. Notice is served upon the employer at the time the injury becomes apparent.

• Minors. When a minor suffers a work-related injury, the question of requisite notice becomes a matter of local law. Some states adhere to the view that, as long as a minor is without a guardian no time period may begin to run against the minor worker. Other jurisdictions do not draw this distinction, requiring that minors abide by the statutory notice requirements.

• Death. Death claims present a special problem because most laws require two separate notices: a notice of injury within a certain period of time after the accident occurs and a notice of death within a certain time period after death occurs. Problems can arise either if the employee gave notice of the injury but the dependents fail to provide a timely notice of death, or if the employee failed to give the initial notice of injury but the dependents timely serve a notice of death.

In each of these situations, the question becomes whether or not the dependents are entitled to pursue the claim despite the absence of notice.

To whom should notice be given? Notice of the injury is usually given to the employer, although some states provide for it to be given to the system administrator, the insurer, or the employer or insurer. In the District of Columbia, notice must be given to the mayor. Some states specify exactly whom the notice may be served upon, for example, to the immediate or other superior of the employee, to the employer, or to any agent of the employer regularly employed at the place of employment. In addition, some states provide specific notice of injury forms.

What happens if notice is not given and there is no legal excuse? In most states, workers' compensation claims are barred if the employee does not give notice within the requisite time period and does not have a valid excuse under the law. Some states impose specific penalties instead. Others will automatically excuse the notice requirement unless the employer can prove prejudice. Still other states will waive invalid notice unless the employer objects.

For more information on specific state notice of injury requirements, see ¶49,120 , or go to State Laws.