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Why Prompt Reporting Policies Are Crucial Even If New Jersey’s Notice Statute Remains Weak

By on May 25, 2018 in Claims with 0 Comments

The failure to report a claim in a timely manner generally leads to powerful defenses that help employers prevail in workers’ compensation court.  But lack of timely notice is seldom one of those defenses in New Jersey.  That sounds like a conundrum.  Shouldn’t lack of timely notice be the first defense that jumps to one’s mind when a claim is not reported within 30 or 60 days?  It should, but unfortunately the way the New Jersey notice statute is written, employers almost never win on that limited defense.  Employers do often win cases that are not timely reported for completely different reasons discussed below.

Think of lack of timely notice under N.J.S.A. 34:15-17 as an ironclad rule.   A worker could legitimately have a work injury on January 1, 2018, but if that employee for whatever reason fails to report the work injury within a certain period of time the employer automatically wins.  Here’s the rub:  the New Jersey statute allows so many extensions on reporting that the notice defense is generally toothless.

The statute begins by stating that an employee must report a work injury within 14 days, and no compensation is due until the employer becomes aware of the injury.  That sounds good until you read the rest of the provision.  If the employee reports the claim after 14 days but before 30 days, the employer only wins on notice if it can show it suffered prejudice due to the late reporting.  But wait – the statute next proceeds to water down the previous language even further.  If the employer becomes aware of the injury within 90 days and there is no prejudice to the employer caused by the late notice, the employer cannot win on the notice defense.

In effect this notice provision has two meaningless stages:  14 days and 30 days.  Proving prejudice to the employer is not easy, so employers are effectively left with a 90-day notice rule.  Further, the statute does not define what the word “prejudice” means, and there are really no cases on it.  Frankly, it is unfair to employers that the statute allows up to 90 days to report a claim.  How can an employer investigate any claim that is reported one month or even several months late?  Memories fade, and potential witnesses forget.  This practitioner recalls only one trial in decades where the employee actually testified to not reporting the injury to her employer or anyone in supervision for more than 90 days and therefore lost her case.

Yet failure to report a claim in a timely manner should raise red flags and almost always leads to powerful defenses.  The two main defenses that should leap to an employer’s mind when a claim is not reported timely are first, that there is no evidence that an accident happened, and second that even if an accident did take place, it was not significant enough to account for the present pathology.  Most employers train their employees over and over to report work injuries within 24 hours.  So when an employee reports a work injury 35 or 40 days after it happened, it seldom makes any sense.  An employer will deny such a claim on the basis that there was no accident.  If it did happen, why would the employee who has been trained to report claims within 24 hours wait so long to notify the supervisor or HR representative? Often that same employee has promptly reported other work injuries that have occurred over the years, so the employee clearly knows the reporting procedures.

Suppose an employee says that he bumped his knee at work on July 1, 2017 and felt pain in his knee right away but it quickly diminished. He never treats in July or August. He does not lose any time at all from work.  In mid-September, he reports for the first time to his employer that he bumped his knee at work 75 days ago and needs to see a doctor.  The employer asks why the employee waited so long. The employee says he thought it was nothing at all, so he never mentioned it to anyone.  The pain went away and was barely noticeable for months.  But in the past week the knee has become very painful.   An MRI shows a medial meniscal tear that needs surgery.  The employer probably will not win on the technical notice defense because the notification came within 90 days and the employee will argue that there was no prejudice to his employer by the delay.  Yet this claim should be denied, and the employer may very well prevail.  Here is the issue:  how could the bumping incident on July 1st that caused no lost time and led to no treatment for months be responsible for a meniscal tear that manifests in mid September?

Causation is often the dominant issue in delayed reporting cases. The employer will want to look into past medical treatment to see if the employee has a history of knee problems.  Perhaps this is a recurring issue with the employee.  The employer will look into activities between July 1st and September which the employee engaged in as possible causes for the tear.  What sports or activities did the employee engage in during that bridging period?  Does the employee jog or work out at a gym?  A medical expert will be asked to give an opinion whether bumping the knee in July which led to no treatment for months was the likely cause of a meniscal tear that shows up in mid-September.  Was the mechanism of injury (bumping the knee) consistent with a torn medial meniscus?  Is it likely that a tear occurred on July 1st with no need for initial treatment and caused minimal pain for months only to become very painful in mid-September?  These are valid questions for the expert.

This sort of fact pattern happens quite frequently.  Employers should not be dismayed when they learn that New Jersey allows notice sometimes up to 90 days. That does not mean delayed reporting cases are compensable.  It just means that the employer will not win on the defense of notice.  The stronger defense is not lack of timely notice but whether there is any causal relationship between the alleged injury and the present knee pathology.  Good discovery and investigation may also lead the judge to conclude that there is insufficient evidence of any work accident at all.

In short, employers should continue to stress the need to report injuries within 24 hours.  It doesn’t matter that the New Jersey notice statute is exceptionally weak.   A timely reporting policy is very important and helpful to both employers and defense counsel.  Such a policy helps win cases because when an employee waits 15, 30, or even 60 days to provide notice in the face of a prompt reporting policy, it often suggests that the incident may never have happened or that the incident was simply inconsequential.

Thanks to our friend, Scott Tennant, of Arthur J. Gallagher for bringing this topic to our attention.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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