An IE, or a person acting on the IE’s behalf, must report a work-related injury to the employer within 30 days after the date of injury. TLC Section 409.001 and 28 Texas Administrative Code (TAC) Section 122.1. [Cross references: Date of Injury (C05); Compensability/Injury (C06)]. The purpose of the injury report is to allow the employer to notify the insurance carrier so the insurance carrier can immediately investigate the facts surrounding the injury. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980). The notice to the employer must be timely and adequate. Reporting the injury to the employer within the 30-day period is called “timely notice.” The IE has the burden to prove that timely notice of a work-related injury was given to the employer. APD 991691. Whether timely and adequate notice of a work-related injury was given to the employer present questions of fact for the ALJ to resolve. APD 012669. The Appeals Panel has held that where the 30th day after the date of injury was a Sunday, notice of injury was timely when given on the next working day. APD 230230.
Adequacy of the notice of injury
The IE has the burden to prove that adequate notice of a work-related injury was given to the employer. Whether an IE has presented sufficient credible evidence to establish that adequate notice was given is a question of fact for the ALJ to resolve. APD 041787. The notice must merely convey the general nature of the injury and the fact that it is work-related. The full extent of the injury does not need to be reported or described. Texas Indemnity Ins. Co. v. Bridges, 52 S.W.2d 1075 (Tex. Civ. App.—Eastland 1932, writ ref’d); APD 961033. The IE must establish that the notice was given:
(1) To the employer, a person designated by the employer as one who can receive notice of injury on the employer’s behalf, or to a person who can receive notice of injury on the employer’s behalf as a matter of law;
(2) Within 30 days of the date of injury, unless one of the exceptions apply; and
(3) The injury being reported is related to work.
Notice to employer/designee
TLC Section 409.001(b) and 28 TAC Section 122.1(c) require that the notice be given to the employer or an employee of the employer who holds a supervisory or management position. In order for a person to be considered as holding a supervisory position for purposes of receiving notice of an injury, it is not necessary for the person to have hiring, firing, and disciplinary authority. Rather, task-assigning authority may be sufficient to confer the status of a supervisor. Whether a person holds a supervisory position for purposes of receiving notice of an injury is a question of fact for the ALJ to resolve. APD 010226. This is so even in cases where the employer does not consider the person who received the notice to hold a supervisory position. APD 992797; APD 991635. The report may be made to any supervisor employed by the employer and does not have to be made to the IE’s immediate supervisor. APD 951457.
Proper notice given
The IE worked in the linen department of a hospital. The IE testified that she injured herself while repeatedly folding sheets. The IE reported the injury to a person the IE identified as the “substitute supervisor.” The employer presented evidence to establish that the person to whom the IE reported the injury to was a “lead linen aide” and her duties involved scheduling and organizing the tasks to be performed, but that she was not a supervisor. The actual supervisor of the department gave a statement in which she said that the “lead linen aide” was in charge when she wasn’t there. While an IE’s belief that the person to whom notice is given is a supervisor or manager does not establish this status, based on the evidence presented at the CCH, the ALJ weighed the conflicting evidence and determined that the IE gave notice to a person in a supervisory position. Whether the lead linen aide was a supervisor for purposes of receiving notice of an injury was a question of fact for the ALJ to resolve. APD 980628.
Proper notice not given
The IE asserted that he injured his neck and shoulders while straining to move a piece of equipment. The IE testified that he notified a person whom he considered to be his supervisor, Mr. D, about the injury on the date it occurred. Mr. D acknowledged that he was made aware of the injury. Mr. D stated that he did not hire, fire, promote, or discipline workers, although he directs and oversees the work done by the people in his group. Mr. D had been employed by the employer a little longer than the IE, he wasn’t a supervisor, and that, on occasion, the foreman would leave him in charge when the foreman was away from the job site. On the date of the injury, the foreman was present at the job site. The ALJ determined that the IE did not properly report the injury to a person in a supervisory capacity. The mere fact that a senior employee directs coworkers does not automatically mean that the senior employee is a supervisor for purposes of TLC Section 409.001. Whether Mr. D was a supervisor was a question of fact for the ALJ to resolve. APD 94381.
Notice within 30 days
When an IE presents evidence that a supervisor was timely notified of the claimed injury within 30 days after the date of the injury, but the supervisor offers testimony that the notice was not timely given, whether the notice was timely becomes a question of fact for the ALJ to resolve. St. Paul Fire & Marine Insurance Co. v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.—San Antonio 1964, writ ref’d n.r.e.); APD 94751.
Timely notice found
The IE testified that he sustained a work-related injury and reported the injury to his supervisor. The IE was not sure what date he went to the supervisor’s office to report the injury. The IE stated that his supervisor told him to see the secretary to set up a doctor’s appointment. An appointment was set, and the IE saw the company doctor within 30 days of the date of injury. The IE’s supervisor indicated that while he paid the bills for the IE’s medical treatment, he was unaware of what he was paying. The ALJ determined that the IE timely reported a work-related injury to his employer. Whether the IE timely reported the injury within 30 days was a question of fact for the ALJ to resolve. APD 990782.
Timely notice not found
The IE testified that she tripped and injured her knee at work in September. In a transcribed statement, the IE had said that the injury occurred in August. The IE stated that she informed her supervisor of a work-related injury on the day it occurred. In a second transcribed statement, the IE stated that the injury occurred “last year.” In a third transcribed statement, the IE stated that she reported a knee injury to her supervisor in August and when the supervisor asked her if it was related to a prior work-related knee injury from the year before, she agreed that it could be. The IE then said she didn’t believe she told the supervisor that she tripped at work in August. The supervisor testified that the IE did not report an injury to him on the date she alleged that it occurred in September, but she told him that her knee problems were related to an injury which occurred the previous year. The supervisor testified that he did not learn that the IE was claiming a new August or September injury until December of that year. The ALJ weighed the evidence and determined that the IE did not give timely notice. Whether the IE timely reported the injury within 30 days was a question of fact for the ALJ to resolve. APD 980979.
Notice that injury is work-related
No particular form or manner is required in giving notice of an injury to the employer. Notice of an injury to the employer is sufficient if it reasonably informs the employer of the general nature of the injury and that the injury claimed is work-related. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980); APD 041539.
Notice sufficient
The IE testified that she was injured when she slipped and fell at work. The IE testified that she reported the fall and an injury to her supervisor that same day. The supervisor stated that the IE reported that her back was hurting but didn’t mention a fall. The ALJ determined that the IE did report a work-related injury. Whether the IE reported a work-related injury was a question of fact for the ALJ to resolve. APD 981863.
Notice not sufficient
The IE went to a doctor in October for pain in his hands. The doctor told the IE that he had carpal tunnel syndrome (CTS) which was related to the IE’s employment. The IE returned to work and gave his supervisor “paperwork” from his doctor which placed him on light duty. The IE merely told his supervisor that his hands hurt, and there was no indication that the “paperwork” from the doctor linked the cause of the IE’s hand pain to his employment. The IE asserted that the employer knew his injury was work-related at that time. The insurance carrier presented evidence that the employer did not receive notice that the IE was claiming a work-related injury until the next April, on a date shortly after the IE’s termination. The ALJ determined that the IE failed to prove that he gave timely notice of a work-related injury. Whether the IE reported a work-related injury was a question of fact for the ALJ to resolve. APD 010084.
Exceptions to the 30-day notice requirement
If an IE fails to give the employer timely notice within 30 days of the date of the injury, the employer and the employer’s insurance carrier are relieved from liability to pay income and medical benefits for the claimed injury. TLC Section 409.002 and 28 TAC Section 122.1(d). TLC Section 409.002 and 28 TAC Section 122.1(d) provide for three exceptions to the 30-day reporting requirement:
(1) The employer, a person eligible to receive notice under TLC Section 409.001(b) and 28 TAC Section 122.1(c), or the employer’s insurance carrier has actual knowledge of the IE’s injury;
(2) DWC determines that good cause exists for failure to provide notice in a timely manner; or
(3) The employer or the employer’s insurance carrier does not contest the claim.
Actual knowledge
Actual knowledge of insurance carrier found
The IE asserted that he sustained a work-related injury on a particular date. The IE stated that he reported the injury to his supervisor several times and requested that he be allowed to see a doctor. The supervisor denied receiving any report of an injury from the IE. The IE’s attorney filed a notice of injury with the insurance carrier and DWC. The insurance carrier received it within 30 days of the date of injury. The ALJ determined that the insurance carrier had actual notice of the claimed injury when it received the notice from the IE’s attorney. Because this actual knowledge of a claimed injury came within 30 days of the date of injury, notice was proper and timely. Whether the insurance carrier had actual notice of the claimed injury was a question of fact for the ALJ to resolve. APD 92038.
Actual knowledge of insurance carrier not found
The IE did not report the claimed injury to the employer within 30 days after the date of the injury. The ALJ found that both the employer and the insurance carrier had actual notice of the claimed injury because they were provided a medical report from the date of injury. However, that medical report was for the IE’s prior unrelated compensable injury, and it stated the medical test was within normal limits. The employer and insurance carrier did not have actual knowledge based on the medical report, because it was unrelated to the claimed injury, and it indicated there was no injury. APD 941072.
Actual knowledge of employer found
The IE was the CEO of a computer consulting company. The IE was injured when the company plane which he was piloting crashed on the way back from a business trip. The insurance carrier received notice of the injury about three months after the date of the crash. The insurance carrier asserted that because the IE was both an employee and the employer at the time of the injury, he was required to report the injury to the insurance carrier within 30 days of the injury. The court held that because the IE was the CEO, the employer had notice of the injury immediately. The court further noted that the 1989 Act does not require the notice the insurance carrier argued for; the Legislature could have adopted such a policy but declined to do so; and the court declined to read such a policy into the 1989 Act. American Casualty Company of Reading, Pennsylvania v. Martin, 97 S.W.3d 679 (Tex. App.—Dallas 2003, no pet.); APD 992577.
Actual knowledge of employer not found
The IE was a mid-level manager for the employer. The IE sustained a work-related injury on a particular date but failed to timely report the injury to the employer. The IE testified that he did not report the injury to his supervisor because he feared losing his job. The IE asserted that since he himself was a supervisor, the employer had actual knowledge of the injury. In support of his position, the IE pointed to American Casualty Company of Reading, Pennsylvania v. Martin, 97 S.W.3d 679 (Tex. App.—Dallas 2003, no pet.) and APD 992577. The ALJ determined that the IE failed to give timely notice of the injury to his employer. In Martin, the IE was the CEO of the employer and had no supervisor above him. In this case, the IE acknowledged that he had a supervisor he could have reported the injury to. Whether the employer had actual notice of the claimed injury was a question of fact for the ALJ to resolve. APD 040802.
Good cause
The test for determining whether an IE had good cause for failing to timely report an injury is that of ordinary prudence, meaning whether the IE acted as an ordinarily prudent person would have under the same or similar circumstances. Hawkins v. Safety Casualty Company, 207 S.W.2d 370 (Tex. 1948). Good cause must continue up until the time notice of the injury is given, Continental Casualty Company v. Cook, 515 S.W.2d 261 (Tex. 1974); APD 950428, except that a reasonable time should be allowed for giving notice after the seriousness of the injury is suspected or determined. Hawkins, supra. The 30-day time period for reporting the injury does not “restart” on the date good cause ends. APD 93711.
Reasons or excuses commonly recognized as “good cause” include:
- The IE’s belief that the injury is trivial;
- Mistake as to the cause of the injury;
- Reliance on the representations of the employer or insurance carrier;
- Being underage; and
- Physical or mental incapacity.
Advice of third persons and ignorance of the law are frequently held not to constitute “good cause.” APD 010852. The determination as to whether good cause exists is a question of fact for the ALJ to resolve. APD 001376. An ALJ’s determination on whether good cause exists for failing to timely report an injury is reviewed under an abuse-of-discretion standard. APD 040218.
Good cause found
Mistake
The IE had sustained a work-related injury affecting her right arm and left shoulder. The IE returned to work with restrictions about two years later. The IE returned to her doctor about two months after returning to work when she developed hand and wrist pain and swelling. The IE testified that she felt this pain was new and different from what she had experienced previously, but that her doctor told her it was a flare up of reflex sympathetic dystrophy (RSD) from the prior injury. Due to her hand and wrist pain, the IE was again taken off work about two months after returning to her doctor. The IE’s doctor first noted carpal tunnel syndrome (CTS) three months later. An EMG two months later confirmed the diagnosis of CTS. The IE called the insurance carrier and reported the CTS to the adjuster who urged her to file it under the prior claim. After medical coverage for the CTS was denied under that claim, the IE filed a new claim of injury. The ALJ determined that the date of injury was the date on which the IE returned to her doctor about two months after returning to work following the prior injury and the IE had good cause for not timely reporting the injury. The IE’s doctor and the insurance carrier both believed her condition was related to the prior injury.
In addition, the employer had actual knowledge of the IE’s condition. Whether the IE had good cause for not timely reporting the injury based on a mistake was a question of fact for the ALJ to resolve. The ALJ did not abuse his discretion in determining that good cause existed for failing to timely report the injury. APD 981397 and 972387.
Prompt report after good cause ends
The IE sustained a work-related knee injury while attending a required training session. The IE continued to work and did not report the injury to her employer because she believed the knee injury was not serious and would gradually get better. Over a month after the injury event, the IE resigned. About three months after her resignation, the IE’s knee had steadily worsened to the point that it would sometimes buckle, so she went to a doctor for her knee. She was given medication and exercises. Within 10 days, the IE informed the doctor that her knee had not improved, and two days later, she reported the injury to the employer. The ALJ determined that the IE had good cause and acted as a reasonably prudent person because she had trivialized her injury and within 10 days of her first doctor’s visit and two days of her second discussion with him, she filed her notice of injury. Whether the IE promptly reported the injury after good cause ended was a question of fact for the ALJ to resolve. The ALJ did not abuse her discretion in determining that good cause existed for failing to timely report the injury and in determining the injury was promptly reported after good cause had ended. APD 93649.
Trivialization
The IE was employed as a teacher. She participated in a student/teacher volleyball game. During the game, the IE sustained an injury to her left thumb. The IE testified that the next day, her thumb was bruised and swollen and that when she attempted to play golf several days later, she had difficulty gripping the club. The IE believed it was just a sprain and that the injury would resolve within a few weeks without medical treatment. Within 30 days of the injury date, the IE commented to a co-worker that she may have to file a claim for her injury. Almost four weeks later, the injury had not gotten better so she reported the injury and sought medical treatment. The ALJ determined that the IE had good cause for not timely reporting her injury based on trivialization. Whether the IE had good cause for not timely reporting the injury because of trivialization was a question of fact for the ALJ to resolve. The ALJ did not abuse his discretion in determining that good cause existed for failing to timely report the injury due to trivialization. APD 001376.
Good cause not found
Mistake
The IE sustained a work-related injury when she raised from a bent over position and twisted. The IE stated that she did not realize she was injured until she got home and felt pain in her lower back and knee. The IE underwent lumbar surgery for a herniation over a month after the injury occurred. The IE conceded that she did not report an injury to her employer until after her surgery had taken place, but she stated this was because she didn’t realize she had sustained a work-related injury until she consulted a surgeon who told her she had. The ALJ determined that the IE did not have good cause for failing to timely report an injury because the evidence showed that the IE had some knowledge that her actions at work on the date of injury played a causative role in her injury and she gave that history to her doctors, including her family doctor the day after the injury occurred. Whether the IE had good cause for not timely reporting the injury based on a mistake was a question of fact for the ALJ to resolve. The ALJ did not abuse his discretion in determining that good cause did not exist for failing to timely report the injury. APD 000931.
Prompt report after good cause ends
The IE fell at work and injured her elbows when they struck a filing cabinet. The IE stated that her elbows were immediately discolored and she had pain, but she thought the injury was trivial until she saw her doctor about two months later. The IE admitted that she didn’t report the injury until almost a month after she saw her doctor. The ALJ determined that the IE knew the injury was no longer trivial the day she saw her doctor, and that she did not have good cause for delaying her report for almost another month. Whether the IE promptly reported the injury after good cause ended was a question of fact for the ALJ to resolve. The ALJ did not abuse her discretion in determining that good cause did not exist for the IE’s failure to timely report the injury and in determining the injury was not promptly reported after good cause had ended. APD 980122.
Trivialization
The IE was injured when he sustained a hernia while lifting material. The IE stated that he felt pain for five or 10 minutes, stopped working for five or 10 minutes, worked the rest of the day and continued to work until over two months later. The IE stated that he did not think the injury was serious until the pain forced him to go to the emergency room (ER) over two months after the injury date. The IE gave a history of his injury to the ER as lifting at work several months ago. A hernia was diagnosed. The ALJ determined that the IE did not have good cause based on trivialization for failing to timely report the injury. The ALJ noted that immediate pain on the date of injury was inconsistent with his over two-month delay in seeking medical treatment. Whether the IE had good cause for not timely reporting the injury because of trivialization was a question of fact for the ALJ to resolve. The ALJ did not abuse his discretion in determining that good cause did not exist for failing to timely report the injury due to trivialization. APD 980159.
No contest of compensability
An insurance carrier that has waived the right to contest the compensability of a claimed injury by failing to comply with TLC Section 409.021 also waives the right to raise the defense of untimely notice of injury. APD 022027-s.