“I did not notify my employer about my injury within three business days. Is my worker’s compensation claim now barred?”
Workers’ Compensation Series, No. 2
A great example of workers’ compensation rules being interpreted differently that their plain language is the Notice rule. This is the rule which requires injured employees to provide written notice to the employer describing the injury within three business days after its occurrence. SDCL 62-7-10. The problem injured employees are faced with, however, is that most of the time the employees do not want to complain unless the injury is serious. Then, two or three weeks later when the injury is getting worse and is serious, the employer or its insurer may deny the claim because the injured employee did not comply with the Notice statute.
These immediate denials may make sense to an injured employee, seem consistent with the Notice rule, and encourage employees not to proceed with their worker’s compensation claim. Instead, the employee may just rely on health insurance or not get treatment at all. This is a BIG mistake that may cost you and your family for years to come. Interpreting the Notice rule, the South Dakota Supreme Court has explained that “the time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury or disease.” McNeil v. Superior Siding, Inc., 2009 SD 68, 771 N.W.2d 345, 348, reh’g denied (Sept. 8, 2009). What this means is that if you did not think your injury was serious (i.e. strained or pulled muscle) until it did not go away for a month, then the Notice rule does not go into effect until you realized the injury was serious.
The safest route is to always notify your employer in writing of any injury you suffer while on the job. However, if you wait to notify your employer about the injury until after you think it is serious, do not give up when the claim is initially denied. If you find yourself in this situation, talk to a lawyer to protect yourself and your family. You will be glad you did.