By William R. Cahill, Jr.
Often we protect ourselves in the workplace against disciplinary, wage or seniority related problems by looking at our contract or Collective Bargaining Agreement. However, if you or another employee is hurt on the job, these documents may not fully address the issue.
More specifically:
- Who has the burden of proof regarding an injury alleged to have incurred at work?
- Who must establish what other factors are involved in whether the employer/insurer accepts the injury as compensable?
This article is not all inclusive and is not state specific. However, it will guide you past some potential pitfalls in the workers' compensation matrix.
It's Your Responsibility to Make a Timely Report
First of all, let us be clear that the burden of proof is generally going to fall on the individual who is attempting to receive benefits as a result of an injury arising out of and in the course of his or her employment.
Some of the most common injuries occur to the shoulder, lower back, and knees of an employee. If you suffer an injury while working, notify your supervisor as soon as possible. Obviously, if the injury is serious and you are incapacitated, you will be en route to a medical facility and someone else will most likely make the notification.
Unfortunately, in most cases, the system only protects those who protect themselves. I respectfully suggest, as a former principal officer of a Teamster Local and now as an attorney who has the privilege of working with the Teamsters, that you report, report, report.
Timely reporting of industrial accidents will reduce the ability of the employer/insurer to offer other theories regarding how you injured yourself. Timely reporting also assists your legal representative to persuasively argue your case if the employer denies your claim for other reasons.
If you run into the occasional supervisor who will not allow you to report an injury regardless of the alleged timeliness, contact your steward or business agent immediately. Make a written record of the name of the supervisor who prevented you from reporting the claim along with the date, time, and place.
Don't Wait
I know this sounds simple, but one of the most common reasons for denial is that the employee is alleged to have not notified the employer and the causal relationship is called into question.
You're sitting there saying what the heck is he talking about, right? For example:
Employee Heavylifter is delivering packages on Friday afternoon when he turns to grab a package off the top shelf and feels a sharp pain in his left lower back. Heavylifter only has four more stops and figures he can take a few Tylenol and rest his back over the weekend. The injury is not mentioned to anyone nor was it witnessed by anyone. His back is extremely tight on Friday night but a good night's sleep will take care of that…maybe.
Heavylifter attempts to get out of bed the next day and the pain has not resolved and is now radiating down his leg. He calls his primary care physician and makes an appointment for the following week. On Monday the employee calls work to report that he will not be in because he hurt his back on Friday.
Claim denied: No causal relationship to work is the reason given.
If you think this sounds unusual, you are mistaken. The number of workers who attempt to “work through the pain” and then try to initiate a claim later is substantial.
Reasons stated for not immediately reporting an injury range from, "It was difficult/uncomfortable to report an injury," to "Management gets mad or upset when I do," to, "I thought it would just go away and I did not want to be a baby."
How an Attorney Can Help
Another question that generally comes up at Union meetings that I attend is, "Do I need an attorney?" My opinion on this matter is pretty clear and based on my practice and experience in Massachusetts and New Hampshire: Yes.
Why? It is like insurance. If you report your injury and contact an attorney and forward the incident report along with the medical documentation, a folder is then opened and you are guided through the process.
If the insurer accepts the claim and pays you the compensation you are entitled to under the appropriate statute, then your cost for legal representation is zero ($0.00). If you return to work after a period of receiving indemnity benefits, the same thing applies…zero cost. If you have suffered a permanent impairment, you may be entitled to compensation according to the percentage of loss.
(Depending on the state in which you live or where the injury took place, the attorney may be entitled to a percentage of the permanent impairment award, but this should be discussed with your attorney.)
Give Yourself the Best Protection
In closing, this is the first of several articles covering workers' compensation issues. I cannot stress the importance of timely reporting of any injury to your employer. A family may find themselves without any income coming in while a claim is being processed.
You have to take an active role in protecting yourself and your family by reaching out to those individuals who can assist you: stewards, business agents and attorneys. Knowledge is power.
This article was submitted by William R. Cahill, Jr., of Dumont, Morris, and Burke, PC., 14 Beacon St., Ste 300, Boston, MA. Attorney Cahill was formerly a principal officer of a Teamster Local and has been practicing law in MA and NH since 1996/1997 respectively. He received an Honorable Discharge from the Massachusetts State Police after 26 years of service to the Commonwealth.