The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.
Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.
Other takeaways from Bauer
Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
Ideally, if you are hurt on the job, workers’ compensation should pay your medical bills and for any lost time because of that injury. If you are hurt bad enough, workers’ compensation should also pay your permanent disability, for future medical care and even for re-training.
In reality, sometimes this doesn’t happen. This post will attempt to explain the reasons why a workers’ compensation claim will be denied or delayed and what injured employees need to do preserve their rights.
Lack of information: In order for a claims administrator or insurance company to pay a claim, they need to determine if it is covered by workers’ compensation. At a minimum, this means that they need some medical records documenting the injury. This can take time. If a doctor has given work restrictions, this means that the claims adjuster needs to contact the employer to find out if those restrictions can be accommodated. Even assuming everyone is being honest and diligent, this process may take a few weeks. The general standard is to give an insurer three to four weeks to investigate a claim. I would advise that injured employees be civil with employers and insurance adjusters. This can be difficult if you are like many Americans who live paycheck to paycheck, but a loss of temper can compromise your case. It’s difficult to be patient, but the fair employers and/or insurers will make up lost time pay and will pay you a reasonable amount of benefits without dispute and without the involvement of a lawyer.
You aggravated an old injury or chronic condition: To be clear, if you make an old injury or chronic condition worse, that is covered by workers’ compensation in Nebraska. However, this may not be understood by a claims person in a state where there is a different standard of causation. This fact is also not widely understood by most employees or managers, which can lead employers to deny coverage and discourage employees from reporting such injuries.
Your injury came on from overuse or repetitive use rather than from a one-time incident: Arm, hand and even back injuries are very common from repetitive activity. These symptoms usually come on over time, and employees can’t pinpoint an exact injury date to employers or doctors. Under Nebraska law, such injuries are covered by workers’ compensation. But again an unscrupulous insurer and/or employer can use these facts to argue to you that your injury is not covered by workers’ compensation.
You delayed seeking medical treatment: Delaying going to the doctor canhurt your workers’ compensation case, because it raises the suspicion that you hurt yourself outside of work. The delay doesn’t even need to be all that long. It’s a red flag if you claim you were hurt on a Friday then seek treatment on a Monday. There are all sorts of legitimate reasons for some delay, such as the inability to make an appointment, wrongfully thinking you need to ask permission to see a doctor from your employer, seeking treatment with company nurses first, or even thinking an injury will improve on its own. A lawyer can make those arguments with some success, and you should contact one if this is an issue in your case. But the longer you wait to see a doctor, the more likely it is your claim will be denied.
You didn’t tell your supervisor you were hurt, or you didn’t fill out an accident report: If you are hurt at work, your employer has a duty to report to the state of Nebraska and the Occupational Safety and Health Administration (OSHA) that you were hurt. You also have a duty to inform your employer as soon as practicable. Cover yourself, and report the injury. Even if your employer doesn’t have a form or a formal human resources department, send a text or e-mail to your boss telling that person what happened and what kind of injuries you have.
You initially denied you had a work injury: Some employers will tell you that they will take care of the injury themselves and not turn it in to workers’ compensation. In some cases, employees are afraid to turn in injuries. In other cases, an employee has been led to believe that an injury isn’t covered because of the factors listed in points 2-5, so that worker turns the claim over to private insurance. The problem with this outcome is that for a serious injury you can get stuck with paying a lot of money out of pocket, which can be almost impossible to pay if you aren’t working and not receiving workers’ compensation benefits. Even worse, some health insurers will reverse payment if they get an indication your bills should have been covered by workers’ compensation. Some companies have private disability policies that might allow you to collect some benefits, but those policies will also deny benefits if they have some indication that there was a workers’ compensation claim.If you are in this situation, you need a lawyer for your workers’ compensation claim. You also need a lawyer who knows creative ways to turn the tables on employers and insurers who completely deny benefits to their employees. Some of my most professionally satisfying cases have come from turning the tables on employers who, for lack of a better word, jack around employees who make some mistakes in how they handled their workers’ compensation claims.
Even if you have done several things to hurt your workers’ compensation claim, a good lawyer can take actions to get justice on your claim.
Your employer didn’t fill out an accident report or filled it out wrong: Not all denials or delays are due to mistakes made by employees. Employers drop the ball as well. That’s why you want to cover yourself with your own written report as well as see a doctor as soon as you can and be sure to tell that doctor how you were hurt.
You were treated by a physician assistant or nurse practitioner: Some insurers and/or employers believe that physician assistants and nurse practitioners cannot testify in a workers’ compensation case in Nebraska. I strongly disagree, but the issue has never been definitively decided by an appellate court. An aggressive employer and/or insurer will use this as an excuse to not pay benefits. A lawyer can help fix this issue by asking a supervising physician or D.O. to give an opinion in your case.
You went to see your own doctor rather than the employers’ doctor: Unless your employer gives you notice AFTER your work injury, you have the right to be treated by your doctor. You don’t have to see the doctor at the clinic where your employer sends you to be drug tested after an injury.
I despise few phrases more than “workers’ compensation doctor.” Any doctor can treat you for a workers’ compensation injury. A “workers’ compensation doctor” or an “occupational medicine doctor” is just a doctor who is happy to fill out the extra paper work required in a workers’ compensation claim. Usually these doctors work hand in glove with employers and insurers. Sometimes this works out for employees, but many times it doesn’t. Unscrupulous or unknowledgeable insurers and/or employers will deny care to employees who pick their own doctors. Sometimes employers will take action against employees as well. In cases like this, you need a workers’ compensation and employment lawyer.
Your employer blames you for your injury: Unless you were intoxicated when you were injured, the issue of fault is irrelevant in a workers’ compensation claim. If your employer is denying your claim based on you being at fault, you need a lawyer for your workers’ compensation claim and one that can evaluate a potential employment-law claim.
You are being denied benefits because you were fired or quit: Like the issue of fault for your injury, the fact you were fired or quit post-accident should have little impact on your workers’ compensation claim, but you should contact a lawyer who can advise you on workers’ compensation and employment law.
Nebraska is a state that has a “prompt payment rule” for medical expenses in workers’ compensation cases. This means that so long as your employer has sufficient knowledge that your medical care is necessary because of the injury, your bills should be paid. This is a huge plus because even a minor workers’ compensation injury can cause an employee to rack up thousands of dollars in medical bills.
In Nebraska, delay of medical payment is treated as a denial of a claim. That is why a delay in paying for medical bills from a work injury gives the employee the right to pick their own doctor for a work injury.
The issue of doctor choice brings up a couple of the hidden dangers of the prompt payment rule. Many times, employers will promptly pay medical expenses for doctors who will oftentimes release employees before they are done healing and return employees back to work before they are ready. Employees need to be able to know their doctor-choice rights before they agree to an employer/insurer-oriented clinic or doctor – especially if that doctor is not their family doctor.
Secondly, employees can get lulled into contentment when an employer pays their medical bills. Medical benefits are one aspect of workers’ compensation benefits; the other is loss of income benefits. An employer/insurer may use their leverage with a doctor to minimize loss of income benefits. Also, when employees get into litigation, they are oftentimes confused by the fact that an employer will pay for medical benefits, but not loss of income benefits, or will deny that the injury is even work related. This is related to the prompt payment rule. Just because an employer pays medical bills, that doesn’t necessarily mean that they or a workers’ compensation judge will believe those medical bills are related to the work accident.