An IW, or a person acting on the IW's behalf, must report a work related injury to the employer within 30 days after the date of injury. Sections 409.001 and 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 carrier so the 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 IW 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 HO to resolve. APD 012669.

(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 work related.

Adequacy of the Notice of Injury.

The IW has the burden to prove that adequate notice of a work related injury was given to the employer. Whether an IW has presented sufficient credible evidence to establish that adequate notice was given is a question of fact for the HO 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 need not 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 IW must establish that the notice was given:

Notice to Employer/Designee.

Sections 409.001(b)and 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 HO 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 IW's immediate supervisor. Dallas Independent School District v. Foley, 1999 Tex. App. LEXIS 4417 (unpublished); APD 951457.

Proper Notice Given.

The IW worked in the linen department of a hospital. The IW testified that she injured herself while repeatedly folding sheets. The IW reported the injury to a person the IW identified as the "substitute supervisor." The employer presented evidence to establish that the person whom the IW 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 IW's belief that the person to whom notice is given is a supervisor or manager does not establish this status, based upon the evidence presented at the CCH, the HO weighed the conflicting evidence and determined that the IW 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 HO to resolve. APD 980628.

Proper Notice Not Given.

The IW asserted that he injured his neck and shoulders while straining to move a piece of equipment. The IW testified that he notified a person whom he considered to be his supervisor, Mr.D, of 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 did direct and oversee the work done by the people in his group. Mr. D had been employed by the employer a little longer than the IW, 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 HO determined that the IW 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 such person is a supervisor for purposes of Section 409.001. Whether Mr. D was a supervisor was a question of fact for the HO to resolve. APD 94381.

Notice Within 30 Days.

When an IW 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 HO 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 IW testified that he sustained a work related injury and that he reported the injury to his supervisor. The IW was not sure what date he went to the supervisor's office to report the injury. The IW stated that his supervisor told him to see the secretary to set up a doctor's appointment. An appointment was set, and the IW saw the company doctor within 30 days of the date of injury. The IW's supervisor indicated that while he paid the bills for the IW's medical treatment, he was unaware of what he was paying. The HO determined that the IW timely reported a work related injury to his employer. Whether the IW timely reported the injury within 30 days was a question of fact for the HO to resolve. APD 990782.

Timely Notice Not Found.

The IW testified that she tripped and injured her knee at work on September 1. In a transcribed statement, the IW had said that the injury occurred in late August. The IW stated that she informed her supervisor of a work related injury on the day it occurred. In a second transcribed statement, the IW stated that the injury occurred in March or April of "last year." In a third transcribed statement, the IW stated that she reported a knee injury to her supervisor in late August and that when he asked her if it was related to a prior work related knee injury from the year prior, she agreed that it could be. The IW then said that she didn't believe she told the supervisor that she tripped at work in August. The supervisor testified that the IW did not report an injury to him on September 1, but that 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 IW was claiming a new August or September injury until December of that year. The HO weighed the evidence and determined that the IW did not give timely notice. Whether the IW timely reported the injury within 30 days was a question of fact for the HO 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 IW testified that she was injured when she slipped and fell at work. The IW testified that she reported the fall and an injury to her supervisor that same day. The supervisor stated that the IW reported that her back was hurting, but didn't mention a fall. The HO determined that the IW did report a work related injury. Whether the IW reported a work related injury was a question of fact for the HO to resolve. APD 981863.

Notice Not Sufficient.

The IW went to a doctor in October 1999 regarding pain in his hands. The doctor told the IW that he had CTS which was related to the IW's employment. The IW returned to work and gave his supervisor "paperwork" from his doctor which placed him on light duty. The IW merely told his supervisor that his hands hurt, and there was no indication that the "paperwork" from the doctor linked the cause of the IW's hand pain to his employment. The IW asserted that the employer knew his injury was work related at that time. The carrier presented evidence that the employer did not receive notice that the IW was claiming a work related injury until April 2000, a date shortly after the IW's termination. The HO determined that the IW failed to prove that he gave timely notice of a work related injury. Whether the IW reported a work related injury was a question of fact for the HO to resolve. APD 010084.

Exceptions to the 30 Day Rule.

If an IW fails to give the employer timely notice within 30 days of the date of the injury, the employer and the employer's carrier are relieved from liability to pay income and medical benefits for the claimed injury. Sections 409.002 and 122.1(d). Sections 409.002 and 122.1(d) provide for three exceptions to the 30 day reporting requirement. They are:

(1) the employer, a person eligible to receive notice pursuant to Sections 409.001(b) and 122.1(c), or the employer's carrier has actual knowledge of the IW's injury;

(2) the commission 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 Carrier Found.

The IW asserted that he sustained a work related injury on May 31. The IW 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 IW. The IW's attorney filed a notice of injury with the carrier and the Commission with the carrier receiving it on June 28. The HO determined that the carrier had actual notice of the claimed injury when it received the notice from the IW's attorney. Because this was actual knowledge of a claimed injury came within 30 days of the date of injury, notice was proper and timely. Whether the carrier had actual notice of the claimed injury was a question of fact for the HO to resolve. APD 92038.

Actual Knowledge of Carrier Not Found.

IW did not report the claimed June 5, 1992, injury to the employer within 30 days after the date of the injury. The HO found that both the employer and the carrier had actual notice of the claimed injury because they were provided a June 5, 1992, medical report. However, that medical report was for the IW's prior unrelated 1991 compensable injury and it stated the medical test was within normal limits. The employer and 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 971072.

Actual Knowledge of Employer Found.

The IW was the CEO of a computer consulting company. The IW was injured when the company plane which he was piloting crashed on the way back from a business trip. The carrier received notice of the injury approximately three months after the date of the crash. The carrier asserted that because the IW was both an employee and the employer at the time of the injury, he was required to report the injury to the carrier within 30 days of the injury. The court held that because the IW was the CEO, the employer had notice of the injury immediately. The court further noted that the 1989 Act does not require the notice argued for by the carrier; that the legislature could have adopted such a policy but declined to do so; and that 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 IW was a mid-level manager for the employer. The IW sustained a work related injury on October 20, but failed to timely report the injury to the employer. The IW testified that he did not report the injury to his supervisor because he feared losing his job. The IW asserted that since he himself was a supervisor, the employer had actual knowledge of the injury. In support of his position, the IW 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 HO determined that the IW failed to give timely notice of the injury to his employer. In Martin, the IW was the CEO of the employer and had no supervisor above him. In this case, the IW acknowledged that he had a supervisor to whom he could have reported the injury. Whether the employer had actual notice of the claimed injury was a question of fact for the HO to resolve. APD 040802.

Good Cause.

The test for determining whether or not an IW had good cause for failing to timely report an injury is that of ordinary prudence; that is, whether the IW 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 IW's belief that the injury is trivial, mistake as to the cause of the injury, reliance on the representations of the employer or carrier, being under age, 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 or not good cause exists is a question of fact for the HO to resolve. APD 001376. A HO's determination as to whether or not 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 IW had sustained a work related injury affecting her right arm and left shoulder in March of 1994. The IW returned to work with restrictions in April of 1996. The IW returned to her doctor in June 1996 when she developed hand and wrist pain and swelling. The IW 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 RSD from the 1994 injury. Due to the hand and wrist pain, the IW was again taken off work in August 1996. The IW's doctor first noted carpal tunnel syndrome (CTS) in November 1996. A January 1997 EMG confirmed the diagnosis of CTS. The IW called the carrier and reported the CTS to the adjuster who urged her to file it under the 1994 claim. After medical coverage for the CTS was denied under the 1994 claim, the IW filed a new claim of injury in March 1997. The HO determined that the date of injury was June 1996, and that the IW had good cause for not timely reporting the injury. The IW's doctor and the carrier both believed her condition was related to the prior injury. Additionally, the employer had actual knowledge of the IW's condition. Whether the IW had good cause for not timely reporting the injury based upon mistake was a question of fact for the HO to resolve. The HO 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 IW sustained a work related knee injury on May 6 while attending a required training session. The IW 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. On June 9 the IW resigned. By late September the IW's knee had steadily worsened to the point that it would sometimes buckle. On September 24, the IW went to a doctor for her knee. She was given medication and exercises. On October 2, the IW informed the doctor that her knee had not improved. On October 4, the IW reported the injury. The HO determined that the IW 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 within two days of her second discussion with him, she filed her notice of injury. Whether the IW promptly reported the injury after good cause ended was a question of fact for the HO to resolve. The HO did not abuse her discretion in determining that good cause existed for failing to timely report the injury and that the injury was promptly reported after good cause had ended. APD 93649.

Trivialization.

The IW was employed as a teacher and on December 17, she participated in a student/teacher volleyball game. During the game, the IW sustained an injury to her left thumb. The IW testified that the next day, her thumb was bruised and swollen and that when she attempted to play golf on December 21, she had difficulty gripping the club. The IW believed it was just a sprain and that the injury would resolve within a few weeks without medical treatment. On January 4, the IW commented to a co-worker that she may have to file a claim for her injury. On January 31, the injury had not gotten better so the IW reported the injury and sought medical treatment. The HO determined that the IW had good cause for not timely reporting her injury based upon trivialization. Whether the IW had good cause for not timely reporting the injury because of trivialization was a question of fact for the HO to resolve. The HO 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 IW sustained a work related injury on August 19, when she raised from a bent over position and twisted. The IW stated that she did not realize she was injured until she got home and felt pain in her low back and knee. The IW underwent lumbar surgery for a herniation on October 8. The IW conceded that she did not report an injury to her employer until October 18, but 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 HO determined that the IW did not have good cause for failing to timely report an injury because the evidence showed that the IW had some knowledge that her actions at work on August 19 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 IW had good cause for not timely reporting the injury based upon mistake was a question of fact for the HO to resolve. The HO 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 IW fell at work on May 1, injuring her elbows when they struck a filing cabinet. The IW stated that her elbows were immediately discolored and she had pain, but that she thought the injury was trivial until she saw her doctor on July 3. The IW admitted that she didn't report the injury until July 31. The HO determined that the IW knew the injury was no longer trivial on July 3, and that she did not have good cause for delaying her report until July 31. Whether the IW promptly reported the injury after good cause ended was a question of fact for the HO to resolve. The HO did not abuse her discretion in determining that good cause did not exist for failing to timely report the injury and that the injury was not promptly reported after good cause had ended. APD 980122.

Trivialization.

The IW was injured on June 5 when he sustained a hernia while lifting material. The IW 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 August 25. The IW stated that he did not think the injury was serious until the pain forced him to go to the ER on August 25. The IW gave a history of injury to the ER as being lifting at work several months ago. A hernia was diagnosed. The HO determined that the IW did not have good cause based upon trivialization for failing to timely report the injury. The HO noted that immediate pain on June 5 was inconsistent with his two and a half month delay in seeking medical treatment. Whether the IW had good cause for not timely reporting the injury because of trivialization was a question of fact for the HO to resolve. The HO 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.

A carrier that has waived the right to contest the compensability of a claimed injury by failing to comply with Section 409.021 also waives the right to raise the defense of untimely notice of injury. APD 022027-s.