The Underutilized and Underappreciated Defense of Lack of Timely Notice
Some defenses, like the going-and-coming rule, get all the attention but there are other less well known defenses, like lack of timely notice, which can be very powerful as a defense in workers’ compensation. One of the reasons that the notice defense is often ignored in New Jersey is its peculiar wording. It has three stages to it. N.J.S.A. 34:15-17 states initially that if notice of a work injury is not given to the employer within 14 days, then no compensation shall be due until such notice is given. The employer cannot win in this stage, only delay payment until notice is provided.
The second stage says that if notice to the employer is given within 30 days, then the employee’s claim cannot be defeated unless the employer can show it was prejudiced by the delay. Finally, the statute provides that if notice is given within 90 days, AND, if the employee can show that the failure to provide notice was due to mistake, inadvertence, ignorance of fact or law, or fraud, then compensation shall be allowed, unless the employer can prove that it was prejudiced by the failure to provide prompt notice. An employee automatically loses if the first notice occurs after 90 days.
Many practitioners tell clients that an employee only has to give notice within 90 days, but that is not entirely correct. The employee must give notice within 30 days, and if the employer can show that lack of notice prejudiced the employer, the employer wins the case! This practitioner calls it a 30-day rule.
Notice issues come into play more often than one would imagine even though most large employers have training sessions on the importance of providing notice of injury with 24 or 48 hours. The statute does make clear that if the employer has actual knowledge of the injury, then the requirement of prompt notice is not applicable. But a surprisingly high percentage of workers’ compensation claims involve situations where an employee has not reported a work injury for over 30 days.
Why is the notice defense important? For one thing, there are many unwitnessed accidents and it makes very little sense that an employee who is injured seriously enough to require treatment or file a claim would wait 30 days to report the injury. If the injury were serious enough, there would usually be medical treatment shortly after the incident, and if medical treatment did occur, there should be statements to the physician about a work-related injury. When an employee waits weeks to report an alleged work injury, red flags should be flying.
Three defenses come to mind when an employee claims to have suffered a serious injury but does not report the injury promptly. First is the notice defense as outlined above, and the employer should argue that the delay in reporting prejudiced the employer. Second is the defense that no accident ever took place, and efforts should be made to investigate the allegations to see if the accident can be disproved. Third is more of a medical defense, namely that if something did happen 30 days ago but was never reported within 30 days, then that event was almost certainly insignificant. Respondent should engage a medical expert to make this argument. Bear in mind that most of us have had those days where we slip or fall without suffering any real injury beyond embarrassment.
Think about this: if you were ever seriously hurt at work, why would you wait a month or even a week to report the injury? What would be the advantage in NOT reporting it right away? It may make sense to wait a couple of days to see if the body recoveres, but 30 days? That hardly seems plausible. If the employee admits to treating outside workers’ compensation close in time to the alleged injury, the employer must obtain those records (often they are family doctor records) to see what history the employee provided to the unauthorized physician. Frequently there is no mention of any work injury at all. On the other hand, if the employee has not treated within 30 days, how significant could the event have been?
Winning notice defenses at 30 days comes down to proving that the employer was prejudiced by the delay. Consider this: if you rode a bike to the town library and then found an hour later that the bike was stolen, what are the chances that the police could help you if you waited 30 days to notify them? The fact of the matter is that people do report those kinds of incidents right away. It’s common sense, but common sense often does not prevail in workers’ compensation. If a claim is reported 30 days late, supervisors and witnesses may not remember the details of events 30 days ago, store security tapes may have been erased or played over, and physical conditions that may have caused the alleged accident will have changed. Employers are almost always prejudiced by reporting delays of 30 or more days. These reporting delays make no sense when one considers that most employers train employees about prompt reporting and include this in their employee manuals.
The only conclusion for employers is that these kinds of cases should be denied, and lack of timely notice should be aggressively pursued with the argument that the failure to timely report the injury has indeed prejudiced the employer.
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