Providing Notice under Workers Compensation: How Long Do I Have to Report an Accident at Work? 

 

Protect Your Right to Workers Comp Benefits by Giving Written Notice of a Work-Related Injury to the Employer Immediately

 

The judicial system rests on due process for all the parties involved in a legal dispute.

 

Due process means that injured workers, employers, and insurance carriers receive fair treatment under workers compensation law. To promote fairness, the General Assembly and the Workers Compensation Commission have established rules and procedures that the parties must follow to protect their rights.

 

Many employees know that there are time limits for filing a workers compensation claim. And that failure to file a claim before these time limits, formally known as statutes of limitations, could result in giving up the right to workers compensation benefits, including lifetime medical treatment and workers comp payments for wage loss and permanent impairment. In Virginia, the statute of limitations for filing a workers compensation claim is two years from the accident date.

 

Fewer injured workers realize that workers comp law has additional reporting and notice requirements. And that you might forfeit the right to workers comp benefits if you wait too long to report a workplace accident or occupational disease to the employer – even if you file a claim within the statute of limitations.

 

This article’s purpose is to discuss how long you have to report a work accident or occupational illness diagnosis so that you protect your rights under the Workers Compensation Act. It focuses on Virginia Code Section 65.2-600, but these tips can help you no matter where you live and what state has jurisdiction over your workers comp case.

 

Keep reading to learn more about how and when to report a workplace accident and who you should tell. If you have more questions about your case or want to hire a workers compensation lawyer in Virginia, call me: (804) 251-1620 or (757) 810-5614. See why other attorneys have voted me one of the best personal injury lawyers in the state and what type of workers compensation settlement I can get for you.

 

 

Do I Have to Report a Work Accident to My Employer? 

 

Yes. You must report any work-related accident or injury to your employer. 

 

Code Section 65.2-600 of the Workers Compensation Act is titled Notice of Accident. It states that every injured employee must give the employer written notice of the accident immediately or as soon after as practical. 

 

The reasons for this law are straightforward. You must give prompt notice of the accident to the employer so that it has the opportunity to investigate the facts surrounding the accident and injuries and provide appropriate medical care to reduce the severity of your injuries. This investigation might include interviewing witnesses and asking for sworn statements, inspecting equipment, asking you to take a post-incident drug test, and addressing safety issues.

 

Most other states have similar reporting requirements for workplace injuries. 

 

Can Someone Else Report the Accident to My Employer?

 

Yes. 

 

Even if you don’t report the accident immediately, you can satisfy the workers compensation notice requirements by having your representative give written notice. Your representative can be an attorney, family member, friend, or other associates. 

 

What is the Best Format for Reporting a Work Accident?

 

The Workers Compensation Act requires that you give written notice of the accident. And you should. Presenting the document as evidence at a workers compensation hearing will help you if the employer alleges it did not have timely notice of the work injury. 

 

The written notice should include:

 

• Your name

 

• Your address

 

• Your telephone number

 

• Your e-mail address

 

• The time and place of the accident (for example, truckers should state what road or pickup/dropoff point they were hurt, and nurses should identify what room number if they were hurt transferring a patient) 

 

• What caused the accident (a short description such as slip and fall or fell from a height is fine)

 

• What body parts you injured 

 

• All places where you have pain, numbness, tingling, or swelling

 

If you’re unsure what to write down, you can use my sample letter reporting your work injury as a template.

 

I recommend giving two copies of this work accident report to your employer. One is for the employer’s records, and the other is for your safe-keeping. Ask the employer to stamp the date and time (or write it down and initial it) on your copy.  

 

You can also e-mail or text the information described above to your employer. But keep a copy of what you send.

 

Who Do You Report the Work Accident To? 

 

The Workers Compensation Act doesn’t specify who you should give notice of a work injury. It states only: the employer. 

 

To avoid any argument that you failed to report the work accident to the right person, I recommend giving written notice to all the people below:

 

• All your bosses, managers, supervisors, and foremen

 

• Human Resources 

 

• The company owner  

 

• Your treating physician

 

• Anyone else identified by your supervisor or the Employer Handbook as the person that should receive notice of a work injury

 

You might tell a co-worker or customer about the injury. This is a good idea because it helps you develop witness testimony. But telling a co-worker is rarely going to qualify as giving proper notice to your employer. 

 

Similarly, reporting a work accident to the Department of Labor and Industry or the Occupational Safety and Health Administration (OSHA) is okay. But it won’t necessarily qualify as giving timely notice under the Workers Compensation Act.

 

How Much Time Do I Have to Give Notice of the Work Accident to My Employer?

 

Every state has different time limits for reporting an accident. In Virginia, you must give written notice of the accident and injury to your employer within thirty (30) days of when it happened. 

 

This doesn’t mean you should wait until the 30-day mark to report the accident. Instead, it would help if you gave notice of the work injury immediately. 

 

There are several reasons you shouldn’t delay in reporting the accident. These include:

 

• Your employer does not have to pay medical expenses that accrue before you give notice. 

 

• The longer you wait to report the accident, the greater the likelihood that the employer and its insurance carrier delay the claim’s approval. Delays in reporting and seeking treatment raise red flags with insurers and increase the likelihood of claim denial and the need for litigation. 

 

What Happens if I Fail to Report the Work Accident to My Employer within 30 Days?

 

A delay in reporting the work injury could cost you tens of thousands of dollars in cash payments and medical benefits – or more. 

 

Consequences of Reporting the Accident Within 30 Days, But After You Seek Medical Care and Miss Time From Work

 

The Workers Compensation Act states that an employer does not have to pay for medical bills, Temporary Total Disability, or Temporary Partial Disability that accrues before you tell it about the accident. This means that waiting to report the accident can leave you responsible for medical charges that might bankrupt you.  

 

Consequences of Waiting More than 30 Days to Report a Work Accident

 

Your employer doesn’t have to pay you wage loss benefits or cover your medical treatment if you wait more than 30 days to report a work accident and the employer did not have actual notice of the accident.

 

There are, however, exceptions to this rule. I discuss them below. 

 

How Can I Tell if the Employer Disputes That I Gave Timely Notice of the Workplace Accident?

 

There are four ways to determine that the employer disputes timely notice.

 

First, the employer or the claim adjuster may tell you, by phone, e-mail, or letter, that your claim is denied because you reported the accident too late. 

 

Second, you can ask the Workers Compensation Commission to provide a PIN so that you can access your case documents on WebFile. WebFile is the Commission’s electronic filing system. 

 

WebFile has two sections addressing the date of notice: one for the date your employer alleges it received the notice and a second for the date the claim administrator alleges it received information of the workplace accident or occupational disease. 

 

Third, you can use the workers compensation discovery process, including interrogatories, requests for production of documents such as accident reports and your personnel file, and depositions, to find the date the employer had notice of the work injury. Or, if the employer alleges you waited too long to tell it about the accident, to prove you reported it sooner. 

 

Fourth, you can review the employer’s answer to the Commission’s 30-Day Order to see the reasons given for denying your claim. 

 

Can I Get Workers Compensation Benefits if I Did Not Report the Accident Immediately? How to Overcome a Notice Defense 

 

Maybe. There are ways to overcome the notice defense and receive workers comp benefits even if you did not give written notice right away. 

 

First, the employer cannot deny your claim on the basis that you failed to notify it in writing if it had actual notice of the workplace accident. An employer has actual notice if it witnessed the industrial accident.  

 

Second, you can overcome a notice defense if you could not report the accident because of physical or mental incapacity. For example, head trauma may result in a brain injury and coma. The Commission might excuse timely notice in that situation. 

 

Third, you can defeat an employer’s notice defense if you prove that the delay resulted from the fraud or deceit of a third party.

 

Fourth, the employer might waive a notice defense if it provided medical attention or paid wage loss benefits.

 

Fifth, you can defeat a notice defense if you present a reasonable excuse for the delay, and the employer cannot show the late reporting prejudiced it. 

 

How Do I Prove that I Have a Reasonable Excuse for the Delay in Reporting the Work Accident? 

 

The Workers Compensation Commission does not have a bright-line rule for deciding whether you have a reasonable excuse for waiting more than thirty days to report the accident to your employer. But past judicial opinions provide insight. 

 

The Commission has found a reasonable excuse for the delay in notice when:

 

• The employer violated Rule 7.2 of the Commission’s Rules by failing to “post and keep posted, conspicuously, in the … place of business at a located frequented by employees, notice of compliance with the provisions of the Act.”

 

• The employee testified he or she believed the injury was trivial and would resolve with time. Usually, this excuse fails if the employee sought medical treatment within 30 days of the accident’s date. Seeking medical treatment is often considered an acknowledgment that the injury is not trivial.

 

• Health care providers did not diagnose the condition until more than one month after the workplace incident. For example, the Supreme Court of Virginia excused late notice when employees were not diagnosed with hernias for many months after the event that caused pain. In addition to hernia claims, late diagnosis is a common problem in mental health claims such as those based on work-related Post Traumatic Stress Disorder (PTSD) when the employee has a history of depression. 

 

• The employee did not tell the employer about the accident but did turn in medical records and work restriction notes that referenced the work injury. The Commission has found that an employer cannot be blind to reports of an industrial accident.

 

It’s unlikely that the Workers Compensation Commission will find you have a reasonable excuse for not reporting the accident based on:

 

• Your concern that you will lose your job if you report the injury

 

• Your concern that you will not get a safety bonus if you report the accident

 

• Your embarrassment about the accident

 

• Your lack of knowledge of the notice requirement

 

These worries are understandable. But workers comp law doesn’t recognize them as valid excuses for waiting to notify the employer. 

 

Waiting to report a work-related accident is risky. Even if you think you will start to feel better with rest, complete an accident report and give it to your manager. This takes only a few minutes and will protect your legal rights.

 

How Can An Employer Show Prejudice Due to Delayed Notice of the Accident?

 

Once you give a reasonable excuse for the delay in reporting the accident, the employer has the burden of showing prejudice from the delay.

 

There are two ways an employer can show prejudice.

 

First, an employer can prove prejudice by offering evidence that it was unable to provide medical treatment to reduce the injury’s severity. Usually, this requires medical opinions that your resulting disability would have been less severe had the injured employee reported the accident and sought medical attention sooner. 

 

Second, the employer can prove prejudice by presenting evidence that the delayed reporting prevented it from investigating your claim or preparing a defense. If the employer has access to the medical providers, witnesses, and documents, it will have difficulty proving prejudice. 

 

In my opinion, it is difficult for an employer to show prejudice due to delayed notice unless an injured employee received surgery for the work injury before reporting the accident. But this doesn’t mean you should ignore the Workers Compensation Act’s notice requirement.

 

Another Reason to Report the Work Accident: Avoiding the Loss of Your Job and the Employer’s Termination for Justified Cause Defense

 

Protecting your health and finances are good reasons to report a work-related accident. But they’re not the only ones.

 

Many employers have a written policy that requires employees to report on-the-job injuries. Discipline and even termination are often consequences of failing to follow your company’s policy. 

 

In addition to losing your job and current income source, termination based on a failure to report an accident might result in losing your right to workers comp benefits. Depending on the facts, the Commission might find that you are not entitled to wage loss payments if your employer terminated you for failing to report an injury when you’re capable of light-duty work.

 

Do I Have to Report the Accident to My Employer’s Workers Comp Insurance Carrier? 

 

No, with one exception. 

 

You do not have to report the work injury to your employer’s insurance company or claim administrators such as Sedgwick, Gallagher Bassett, Coventry, or ESIS. 

 

Nor do you have to give a recorded statement to the insurance company if you get a telephone call or an e-mail from a workers comp claim adjuster. And you shouldn’t. 

 

There is, however, an exception to the rule that you don’t have to give notice to the insurance carrier. If you are both the injured employee and the employer, you must report the accident and injury to the insurer. The Workers Compensation Act requires that a partner, sole shareholder of a corporation, only member of a limited liability company, or sole proprietor seeking benefits must notice an accident to the insurer.

 

Do I Have to Give Notice of the Accident to the General Contractor? 

 

Yes, I recommend giving notice of the work accident to the general contractor and any subcontractor that hired your employer to perform work on a construction site. 

 

There are two reasons for giving notice to general contractors and subcontractors that hired your company. 

 

First, your company or the general contractor might have a policy requiring you to notify the general contractor of a work injury. Failure to do could result in termination. 

 

Second, you might have a workers compensation claim against the general contractor or the subcontractor that hired your employer if your employer doesn’t have workers compensation insurance. 

 

Some states, including Virginia, have adopted the statutory employer doctrine. This legal doctrine allows injured workers to recover benefits through a general contractor’s insurance policy when their company failed to comply with the law. But only if the statutory employer has adequate notice. 

 

In Virginia, the Commission can find a statutory employer liable for awards of compensation if it had at least sixty days’ notice of the hearing to determine whether your accident was compensable and was not prejudiced by lack of information. Give notice to the potential statutory employers soon after the accident so that you can avoid a possible defense. 

 

Do I Have to Report the Accident to the Workers Compensation Commission within 30 Days?

 

No. 

 

You do not have to report the workplace accident to the Commission within thirty days. 

 

The two-year statute of limitations for filing an initial claim and the other statutes of limitations applicable to change-in-condition applications govern when you must report the accident to the Workers Compensation Commission. 

 

Is Reporting the Accident the Same as Filing a Claim?

 

No. 

 

Reporting the accident to the employer and filing a workers compensation claim with the Commission are two different requirements. 

 

Reporting the accident to your employer, its insurance carrier, and even the Commission itself does not toll the statute of limitations. You must submit a Request for Hearing/Claim for Benefits Form unless the insurer offers an Award Agreement Form and the Commission enters a Workers Compensation Award Letter. 

 

Does the Employer Have to Give Notice of the Accident to the Workers Compensation Commission?

 

Yes.

 

Your employer or its insurance carrier must file a report with the Commission within ten days of the accident. This document is called the First Report of Injury.

 

After receiving a First Report of Injury, the Commission will send you an Injured Workers Guide, which gives information about the process and your duties and responsibilities.

 

Do I Have to Report the Diagnosis of an Occupational Disease to My Employer?

 

Yes. 

 

You must report the diagnosis of a work-related illness; however, different time limitations apply. The rules for reporting occupational diseases are not the same as telling your employer about physical injuries. 

 

How Long Do I Have to Report an Occupational Disease to My Employer?

 

Section 65.2-405 of the Code of Virginia states that you must report the occurrence of an occupational disease to your employer within sixty (60) days of when you discover the medical condition is connected to work. 

 

The first date a health care provider diagnoses you with disease and tells you that it is work-related is the critical date for determining the deadline for reporting an occupational illness. It doesn’t matter that you might have been diagnosed with the same condition earlier or had symptoms for years. The communication that your diagnosis is work-related is treated as an injury by accident and starts the clock for the notice provisions and statute of limitations.  

 

Can I Receive Workers Comp if I Give Late Notice of an Occupational Illness? 

 

Yes – in many cases. 

 

Unlike delayed reporting of work injuries, you do not have to give a reasonable excuse for your late notice. Benefits for work-related illnesses are not barred unless the delayed notice results in clear prejudice to the employer. 

 

Further, your employer must pay for medical treatment, including reasonably necessary diagnostic services, beginning fifteen days before the date you were first told you have a work-related disease.

 

The relaxed notice requirements and penalties for occupational disease claims are in place because the conditions causing the disease may not disappear as quickly as the conditions causing a sudden work accident and injury. Therefore, the employer can conduct a thorough investigation of the occupational disease claim after receiving late notice.

 

Call an Experienced Workers Comp Attorney to Help You Satisfy the Procedural Notice Requirements and Win Your Case

 

The days following a work injury are stressful. You’re worried about your health and finances and trying to determine the next step. But this isn’t the time to hesitate or put off a decision. You must report the accident in the right way to make the workers comp claims process as smooth as possible.

 

Call me today for help: 804-251-1620 or 757-810-5614. I represent injured workers and their families throughout Virginia, including those in Richmond, Roanoke, Charlottesville, Newport News, Fairfax, Manassas, Norfolk, Harrisonburg, Bristol, and Virginia Beach. I work on a contingency fee basis; there is no fee unless I help you recover benefits or receive a workers comp settlement. You have nothing to lose.