« When Must an Employee Give Notice of a Work Injury? |
Main Blog Page
| New Amendments to the Medicare Secondary Payer Statute May Impact Iowa Work Comp Claims »
As I noted in a prior article, employees in Iowa have 90 days from the date of sustaining an injury to report that injury to their employer. If the employee fails to report the injury and the employer does not have actual knowledge of the injury, the employee is barred from pursuing otherwise available remedies under the Iowa Workers’ Compensation Act. Is this really fair? Could the notice defense be modified to eliminate some of the more common legal disputes that arise because of this statutory notice requirement?
Employers contend that the notice defense is appropriate and fair because they should be entitled to investigate a work injury claim close in time to its occurrence. In some situations, early investigation is the only means that will generate evidence necessary to refute an alleged injury claim. For instance, early interviews of witnesses, inspection of work machinery, evaluation of time cards that are otherwise destroyed, or a myriad of other facts could be “lost” if an employee does not timely report a work injury and permit an investigation.
On the other hand, in many instances, the injury will be clearly work related. There may be no dispute that the injury resulted from work activities. In those circumstances, injured workers would contend that it is inherently unfair to deny any and all compensation simply because the employee did not report the injury within 90 days of its occurrence. Similarly, an employee may sustain a relatively minor injury, which could fester and ultimately turn into a larger claim. Given that the employee did not know or foresee that the injury would result in significant disability, is it really fair to deny coverage under Iowa’s worker’s compensation scheme because the worker failed to report the injury within 90 days?
As drafted, Iowa notice statue does not provide significant guidance in dealing with cumulative injuries and when those must be reported to preserve a claim. Nor does the statute “fit” all circumstances or effectuate justice in some circumstances.
My query is: could this notice provision be revised in some manner to make it more fair and workable for all parties? At the present time, the notice provision is an affirmative defense. The employer must prove that it did not have actual knowledge of the injury and that it was not provided timely notice of the injury. Given the harsh results of the notice defense, this is probably a reasonable burden shifting provision of the Code.
I do not propose to shift the burden to the employee. Instead, I believe that the 90 day notice provision should be “tailored” and perhaps “softened” to prevent injustice to either the employer or the employee.
I believe that most employers, carriers, and defense attorneys believe that, as the notice provision is currently applied, it has little or no detrimental effect on late reporting of injuries. Proving a notice defense seems to be very difficult in the State of Iowa. While it is not impossible, the Commissioner appears to disfavor this defense, probably for some of the reasons outlined above. Therefore, from a practical standpoint, denial on a notice defense is generally considered a relatively weak defense that is not likely to prevail in most litigation unless the facts are egregious.
Given the lack of application of the notice defense and the fact that the Commission tends to disfavor this defense, I ponder whether the notice provision has much effect on when or how employees report injuries. I tend to favor removal or amendment of statutory provisions that really have little or no application or that are perhaps “ignored” by enforcement agencies or personnel. I believe that any law on the books probably should be enforced and that if a bad law is on the books, it should be removed or amended to fit the practical side of life.
Because employers have legitimate reasons to want prompt notice of work injuries and because there are legitimate reasons that society should encourage prompt reporting and intervention to promote effective medical intervention, I do not advocate complete removal of the notice statute. Nor do I think it would be entirely fair to remove the notice statute.
However, I do think that the burden of proof and the basis for assertion of the notice defense could be amended to permit a more fair application of the statutory notice defense. For instance, I advocate amendment to deny compensation only if the employer can prove that it was prejudiced in some manner by the delay beyond 90 days. Simply because the injury was not reported for 91 days does not mean that there was any prejudice to the employer during the last 24 hour period.
Instead, if the employer could prove that it was unable to designate medical care, it should not owe for care sought by the employee. If the condition worsened because of the lack of care, the employer ought not be liable for the effects of delay in reporting the injury. Similarly, if the employer is prejudiced because evidence has been destroyed, is no longer available, or the investigation has been hampered in some manner that could have generated a viable alternative defense, then the notice provision should deny coverage.
I advocate for a standard 90 day reporting period. However, even if that 90 day reporting period is violated, the employer should be required to prove some prejudice has occurred before the harsh effects of the 90 day notice provision are used to deny all compensation. I will leave the necessary statutory language for others, smarter than I, to draft. My interest is to encourage fairness within the system and to avoid harsh, unnecessary, and sometimes unfair results. Under my proposal, the notice defense may bear more teeth for an employer when they can actually prove prejudice while eliminate the potential harsh denial of a claim and benefits simply because of an injured worker waited more than 90 days to report an injury.
Posted by William H. Grell on January 15, 2008 6:54 AM
|
Permalink
