When it comes to workplace injuries, many states provide specific guidance for reporting injuries by both employees and employers. As an employer, you must remember that to properly manage a workers’ compensation claim, you should report the injury as soon as your employee notifies you that it occurred and immediately start your investigation, especially if you have any reason to question whether a workplace injury actually occurred.
Duty to Report by Employer and Employee
Under West Virginia law, for example, every employee who sustains a workplace injury must immediately, or as soon as practicable, notify her employer of her injury. State regulations also provide that immediately after sustaining an occupational injury, an employee should:
- Seek any necessary medical care;
- Provide her employer written notice of the injury’s occurrence; and
- File a workers’ comp claim.
To be considered “immediate,” notice must be given within 2 working days of the injury. An employee’s failure to immediately give his employer notice of the injury will weigh against a finding of compensability based on the “preponderance of the evidence” standard and will dilute the employee’s credibility and reliability. You can implement a personnel policy requiring employees to immediately report any workplace injury.
It’s also the duty of every employer to report every injury sustained by anyone in its employ on the appropriate forms provided by its private workers’ comp carrier or claims manager (i.e., the employer’s report of injury).
The report of injury must be made within 5 days of the employer’s receipt of the notice of injury from the employee or within 5 days of being notified by its insurance carrier that a claim for workers’ comp benefits has been filed.
The employer’s report of injury should include a statement about whether, based on the information available, it disputes the compensability of the injury or objects to the payment of temporary total disability benefits in connection with the injury. If the employer does question whether an injury occurred, its representative should indicate that and attach any evidence or statements supporting the fact that the employer is questioning the injury.
Warning Signs That Injury May Not Be Legitimate
Most seasoned employers understand there are certain warning signs that an employee may not have actually suffered a workplace injury. Here are some examples of issues you should consider when you complete a report of injury:
- Timing of the injury. You should determine if there is a coincidence in timing between the employee’s injury and her need for time off, if the injury occurred around a time she wasn’t scheduled to work, or if the injury occurred on a Monday morning or after she engaged in strenuous activity over the weekend.
- No witnesses to the injury. As we noted above, it’s very important to immediately begin the investigation process once a workplace injury occurs, especially if you have reason to question the injury. Part of that investigation should include obtaining witness statements from anyone who saw the incident. If there were no witnesses to the injury, it could be a warning sign that the employee didn’t actually suffer a workplace injury.
- Inconsistent details about the injury or accident. Did the employee give sketchy or inconsistent descriptions of how the injury actually occurred, or is he unwilling to provide information about how the accident happened? The employee must complete a written report of injury. His written description should be compared to the details provided to your organization, his treating physician, and his coworkers.
- Unexplained or unreasonable delay in reporting the injury. You should investigate the reason for an employee’s unexplained or unreasonable delay in reporting the injury, especially if there were no witnesses.
Bottom Line
Employers that properly report and investigate workplace injuries are often successful in effectively managing a legitimate workers’ comp claim or disputing whether an injury actually occurred, if that’s appropriate.
Alyssa Sloan is an attorney with Steptoe & Johnson PLLC and can be contacted at alyssa.sloan@steptoe-johnson.com.