A worker has an accident on 5/8/07. The employer, in the C-2, reports not receiving notice of the accident until 9/12/07. Section 18 of the WCL states an injured worker must report an accident to the employer, in writing, within 30 days of date of occurrence. However, at the first hearing 6/4/08 when the worker testified, the carrier’s representative failed to raise the issue of late notice.
Eventually, after litigation, an appeal (when the claim was disallowed for late notice, and a request for full board review, the full board decided late notice was no longer an issue since it was not raised by the carrier or the employer at the first hearing in which all parties were present and the worker testified. Section 18 also provides late notice be waived if the carrier or employer does not raise it at the first hearing where all parties are present and the worker (claimant) testifies.
Each year dozens, if not hundreds, of claims that should properly be disallowed for late notice, are allowed for failure of the carrier to properly raise the issue. At the new rates, hundreds of thousands of dollars could be involved in a single such claim.
WHY, when the employer properly notified the carrier of the late notice did the carrier's rep not raise the issue in time? Comp claims are highly repetitive in many respects and a lawyer for a carrier might be handling more than 10 files on a single afternoon or morning. A note on a file to raise an issue may be overlooked or forgotten. (workersxzcompxzkit)
The employer might have a lawsuit against the carrier but there are better practices to employ to prevent the defense from being lost.
Tip from Ted: When an employer identifies a defense, especially late notice, it should call the carrier and make sure it knows of the defense. Then, the employer makes every effort to be present at the first few hearings (workers are not always present at the first hearing, nor do they always testify). The employer’s presence ensures that closer attention is paid to the file and that defenses are not lost.
Source: Citywide Central Insurance Program. New York WCB: 0074-9236.Full Board decision filed 2/25/10.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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