To be eligible for workers’
North Carolina courts have spelled out why this requirement is important: “It allows the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and it facilitates the earliest possible investigation of the circumstances surrounding the injury.”
Section 97-22 of the Workers’ Compensation Act places two distinct obligations on injured employees.
1. An employee must give written notice of an injury. An injured employee isn’t entitled to workers’ comp coverage for any medical expenses until that written notice is submitted. That’s why it’s important to demand notice before the employee seeks treatment.
There are exceptions to this rule. For example, written notice is unnecessary to trigger coverage when the employer already has knowledge of the on-the-job accident.
2. The employee has 30 days from the date of the injury to give written notice, or else he or she won’t be entitled to any compensation. The exception discussed above does not apply to this obligation. If an employee fails to comply, workers’ comp coverage is completely barred unless the employee can provide some reasonable excuse and the employer has not been harmed by the delay.
Even if the employee missed out on some coverage by seeking treatment before providing notice, he or she can get coverage for subsequent treatment by providing notice within the 30-day period.
First notice, but not second
The language of section 97-22 is straightforward. Nevertheless, it has been the subject of many recent court decisions.
In December 2008, the North Carolina Supreme Court addressed section 97-22 in Richardson v. Maxim Healthcare. In that case, it was undisputed that the employer had notice of the employee’s accident. Penny Richardson telephoned her supervisor at Maxim Healthcare within half an hour of a job-related automobile accident. Therefore, she was excused from giving immediate written notice, her first obligation.
But Richardson didn’t give written notice to Maxim within 30 days, her second obligation.
Still, the North Carolina Supreme Court found that the oral notice given to the employer, satisfying the employee’s first obligation of immediate notification, was sufficient enough to excuse her second obligation to give written notice within 30 days.
The court found that Maxim could not have been harmed by any delay in written notification in light of its knowledge of the accident. Following notification, the employer “could have acted to minimize the seriousness of plaintiff’s injury by providing immediate medical care and to conduct the earliest possible investigation….”
Similar case, different outcome
In January 2010, the court again addressed section 97-22 in Gregory v. W.A. Brown & Sons.
In that case, the injured employee, Andrea Gregory, didn’t give written notice of her injury for four months. The Industrial Commission found that her employer did have oral notice of the injury, satisfying the employee’s first obligation.
But considering the obligation to provide notice within 30 days, the Industrial Commission made no findings whether the employer was harmed by the lack of written notice.
Application of the earlier Richardson case would suggest that the Industrial Commission acted correctly, and that express findings of harm (“prejudice” in legal parlance) were unnecessary in light of the employer’s prior knowledge.
Nevertheless, the court applied a more careful and strict reading of the statute this time around. Distinguishing Richardson because the notice issue was not in dispute in that case, the court held that, where an employee does not give written notice within 30 days of an injury, the employee must prove (and the Industrial Commission must address) separately each obligation. That is, immediate written notice (or an excuse for lack of notice) and written notice within 30 days, or proof that the employer was not harmed.
Whether you’re notified or not
According to the court, “Not every instance of actual notice will satisfy the statutory requirements of reasonable excuse and lack of prejudice.” The court also reiterated past precedent that these notice obligations remain at all times on the employee and may not be shifted to the employer.
For the time being, employers should insist that employees who are injured on the job follow the workers’ comp notice rules. Don’t take a “head in the sand” approach. If you learn of a workplace injury—whether through employee notice or not—take steps to address and investigate the situation.
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