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June 13, 2012
Workers' Compensation Notice of Injury: What Are Employee, Employer Responsibilities?

In a BLR webinar titled "HR’s Workers’ Comp Management Update: New Laws, Rules, and Ways to Reduce Risk," Susan Fahey Desmond outlined one of the basic obligations of employees to ensure they’re doing their part in order to receive the workers’ compensation benefits they’re entitled to: giving notice of a work-related injury.

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Workers’ Compensation Employee Obligation: Notice of Injury

When it comes to employee obligations under workers’ compensation, the first and foremost is that employees must report all work-related injuries to the employer. However, an employer’s mere knowledge of an employee’s sickness or that he is suffering from symptoms of an injury is not enough to meet workers’ compensation notice requirements unless it is accompanied with facts concerning the specific work-related injury or illness. In other words, Desmond clarified, "just because you know an employee is ill, doesn’t mean you know it came from the job site." However, you can’t use this excuse when you do have sufficient facts to determine that an illness or injury is work-related.

That said, be careful with this. An employee’s failure to provide timely notice of injury is generally not a defense unless the employer’s accident investigation was harmed as a result of the late notice or the condition "was made worse by your inability to provide an early diagnosis and treatment to the employee", since you weren't aware of the injury, Desmond explained.

The employee bears the burden of proof in all workers’ compensation proceedings. Desmond told us that this means "they must establish by a preponderance of the evidence" that an injury/illness occurred or that the injury aggravated a pre-existing condition.

Occupational diseases are also covered under workers’ compensation proceedings. "If that employee has suffered harm, damage, or death due to some type of exposure in the workplace, and it can be established by objective medical findings, and (again) it arose out of or was contracted in the course and scope of employment, and/or even occurred on more than a single day or work shift," then these can be covered by workers’ compensation as well.

In some cases, it can be more difficult to prove that the cause was found in the workplace, however. Some are straightforward, as with the case of exposure to a chemical only found in the workplace. Others, such as a repetitive motion injury like carpal tunnel, may or may not be work-related. These are more difficult to pinpoint whether or not workers’ compensation would cover these injuries.

For more information on workers’ compensation, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Susan Fahey Desmond is a Partner in the New Orleans, Louisiana, office of Jackson Lewis LLP. (www. jacksonlewis.com) Desmond, who maintains an active practice in both Louisiana and Mississippi, specializes in the areas of labor and employment and civil litigation, including representing employers in Family and Medical Leave cases, discrimination claims relative to age, sex, disability, race, religion, and sexual harassment, and handling EEOC charges and other administrative complaints through the administrative and judicial process.

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