Morgan’s Tip of the Week- Late reporting issues
“Lately” I have had few cases dealing with the untimely reporting of claims. With a few exceptions (see the statute below), a claimant has 30 days to report the accident to the employer or be barred from filing a claim. A few things that have come up recently:
- Reporting the accident but refusing initial medical treatment is reporting the claim timely.
- Informing a supervisor or foreman is sufficient for reporting. It does not matter from a legal standpoint if they don’t follow the employer’s procedures. However, mentioning the accident to a co-worker or colleague is not sufficient, it has to be someone in a supervisory or managerial type role.
- In a construction situation, reporting it to a sub-contractor timely is sufficient, even if the claim eventually trickles up to the general contractor.
- In a PEO or staffing company situation, reporting the accident to a supervisor on the jobsite of the client company is enough for a timely report, even if that supervisor works for the client and not the staffing company.
It is then the employer’s duty to report the claim to the WC carrier/servicing agent. There is caselaw out there that an employer could potentially waive WC immunity if they refuse to report the claim to the WC carrier.
Another issue comes up when there is initial treatment authorized by employer. The employer and the carrier are viewed from a legal standpoint as the same entity in most instances. If the employer authorizes treatment, that would be the initial provision of benefits to start the 14 day and 120-day clocks. In Osceola County Sch. Bd. v. Arace, 884 So. 2d 1003 (Fla 1st DCA 2004), the Court held that the “initial provision of benefits” occurred on the date that the employee first visited an authorized physician.
If the employer sends the Claimant to the hospital following the accident for WC treatment, the carrier would still have 14 days to accept or deny that hospital bill. After 14 days, the 120-day period begins and the carrier would have to pay for all treatment up until a decision is made under the pay and investigate option. If more than 120 days have elapsed since the initial provision of benefits, the carrier waives its right to deny compensability of the accident/event.
It is a different scenario if the employer sends the claimant for treatment for a clearly non-WC personal health issue, such as a heart attack or seizure. It likely needs to be clear the treatment was for what the employer viewed as a WC claim to start the clocks. Here is the late reporting statute, and as always let me know if you have any questions.
(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:
(a) The employer or the employer’s agent had actual knowledge of the injury;
(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;
(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or
(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.
Morgan Indek | Managing Partner