The Importance of Giving Timely Notice To An Employer After A Work Accident
Sometimes the most important element in a workers’ compensation claim, providing timely notice to the employer of the work accident and the resultant injury, is often the most overlooked. Providing notice is critical to a successful claim. Unfortunately, many injured workers do not notify their employer of an injury that occurs at work, or when notice is provided by the injured worker, it is legally insufficient or too late.
An injured worker must provide notice of an accident and injury to the employer within 120 days of the accident. It is the injured worker’s burden of proof to establish that timely notice was provided to the employer. Section 312 of the Pennsylvania Workers Compensation Act requires that the notice provided shall inform the employer that an employee sustained an injury, described in ordinary language, in the course of employment, at a specified time, and at or near a place specified. An employee when providing notice does not have to be sure that the injury or condition was work related; however, the employee cannot simply advise the employer of an injury without some reference to a specific incident or work activities and expect that the notice requirement be established. Notice can be oral or written, and notice can occur as a single or series of communications. Importantly, notice cannot be made to a co-worker.
Whether an employee has satisfied the notice requirements is a question to be decided by the workers compensation judge presiding over the case. If notice is an issue, often an employer witness will testify that timely notice was not made. A “he said-she said” situation will result. Hence the importance of documenting communications to the employer in writing, completing an incident report and filing a Claim Petition for benefits, if appropriate, before the 120 day notice period expires (however, if initial notice of the work accident occurs with the filing of a Claim Petition, there must be service of the petition on the employer within the 120 day notice period). When notice is not satisfied and is in doubt, the claim may be forever compromised.
Some injured workers are hesitant to provide notice of an accident to an employer. Reasoning for not providing notice expressed to our Firm has ranged from fear of termination or other harassing conduct from the employer, jeopardizing a potential safety bonus or simply because the injury was not thought to be serious at the time. Understand that an injured worker cannot be terminated from employment for the sole reason of pursuing a worker’s compensation claim. Post- accident harassing conduct by an employer is not acceptable as well. Both instances may expose the employer to additional liability for wrongful termination and other civil claims.
Jonathan B. Koutcher, Esquire
Email Jon: [email protected]