In Texas Workers’ Compensation Law, an employee or a person acting on the employee’s behalf must notify the employer of an injury not later than the 30th day after the date on which the injury occurs. This is commonly referred to as the 30 Day Notice Rule. If an injury is an occupational disease, the employee or person acting on the employee’s behalf must notify the employer of the injury no later than the 30th day after the date on which the employee knew or should have known that the injury might be related to the employment.
The requirements of notice of injury to employer are spelled out in § 409.001 as follows:
“Sec. 409.001. NOTICE OF INJURY TO EMPLOYER.
(a) An employee or person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which:
(1) the injury occurs; or
(2) if the injury is an occupational disease, the employee knew or should have known that the injury may be related to the employment.
(b) The notice required under Subsection (a) may be given to:
(1) the employer; or
(2) an employee of the employer who holds a supervisory or management position.
(c) If the injury is an occupational disease, for purposes of this section, the employer is the person who employed the employee on the date of last injurious exposure to the hazards of the disease.
The requirement that an employee give notice to the employer does not mean that the employee can simply give notice of the condition itself. Section 409.001 has been interpreted to require an employee to also give notice of the fact that the condition is or may be work related.
Under section 409.002 if an employee fails to notify his or her employer as required by section 409.001, then the employer and the carrier are relieved of liability unless one of the following three exceptions applies: 1) if the employer, a person eligible to receive notice, or the employer’s carrier has actual knowledge of the employee’s injury; 2) if the Commission determines that good cause exists for failure to provide notice; or 3) if the employer or the employer’s insurance carrier does not contest the claim.
Under Texas Workers’ Compensation Appeals Decision No. 961562, the good cause standard for an employee is whether the employee prosecutes his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.
Good cause is something of a subjective area that lends itself to a fair amount of dispute and litigation. These often become very fact specific cases where the fact findings of hearing officers are not disturbed by the Appeals Panel.
Whether good cause exists is a question of fact to be determined by the hearing officer. Good cause must exist continuously up to the time the otherwise untimely report of injury is made. This does not mean that a report of injury must be made immediately upon determination of good cause. The hearing officer must consider the totality of claimant’s conduct in determining ordinary prudence. Texas Workers’ Compensation Commission Appeals Panel Decision No. 93815. The question is whether a reasonable person would recognize the nature and seriousness of the injury and that it may be work related. Texas Workers’ Compensation Appeals Panel Decision No. 94894.
Although ignorance of the law in and of itself is not good cause for failure to file a claim, reliance on representations by the employer that it has indeed filed a claim, along with furnishing of medical and income benefits, may be possibly considered good cause. Texas Workers’ Compensation Appeals Panel Decision No. 94274.
A belief that an injury was trivial can constitute good cause for failure to timely notify an employer. Texas Workers’ Compensation Appeals Panel Decision No. 91123.
There is no requirement in the Workers’ Compensation Act that an individual receiving the report of an injury be a supervisor over the claimant. The only requirement is that the person be in a supervisory capacity. Texas Workers Compensation Appeals Panel Decision No. 92271.
The purpose of the notice requirement has historically been to give the insurance carrier an opportunity to timely investigate the facts surrounding an injury. This is why the Appeals Panel has required that the employer must receive notice, not only of the condition, but also of the fact that there is an allegation that the injury is work related. This was demonstrated in Appeals Panel Decision No. 92357, where the claimant complained of back pain similar to complaints she had in the past to her employer, but did not provide her employer with notice that she had sustained a work related back injury. This was held to be insufficient notice of a new injury .
In Appeals Panel Decision No. 002549, the Appeals Panel reiterated that the 30 day notice period can be extended by the weekend. If the 30th day after the date of injury is a Sunday, Rule 102.3(a)(3) provides that the period in which to report an injury is extended to the next day that is not a Saturday, Sunday, or legal holiday.
To be effective, notice of injury needs to inform the employer of the general nature of the injury and the fact that it is job related. Texas Workers’ Compensation Appeals Panel Decision No. 001479, citing DeAnda v. Home Insurance Company, 618 S.W.2d 529 (Tex. 1980).
It has also been held and reiterated by the Appeals Panel in Decision No. 00283 that the carrier is not relieved of liability for a so called “follow on injury” based on the claimant’s failure to give timely notice to the employer. In that decision the Appeals Panel affirmed and cited Appeals Panel Decision No. 971706 and DeAnda v. Home Insurance Company, supra, as stating that the employer need only know the general nature of the injury and the fact that it is work related. The claimant had no duty, in that case, to advise her employer of complications arising out of the original injury that she had already timely reported.
In the case of Safford v. Cigna Insurance Company of Texas, 983 S.W.2d 317 (Tex. App. – Fort Worth 1998, pet. denied), the thirty day notice provision in a “latent” disease or injury situation, was interpreted to mean that thirty day notice begins to run when an employee’s symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury and knows, or in the exercise of reasonable diligence should have known, that the injury is likely work related.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.