Nottice of Repetitive Injuries: How to Kill Your Claim in Kansas

Nottice of Repetitive Injuries: How to Kill Your Claim in Kansas

Posted By Kansas City Workers Compensation Attorney || 11-Jun-2012

Common sense says that you tell somebody about something after it happens. You can't tell you friend the score of the ballgame until it's been played, right? You can't give notice of a workers compensation accident until it's happened, right? Wrong!

I am going to tell you in advance that this article is going to defy logic and likely result in some significant eye rolling, so bear with me. Let's start with the basic premise that you have to give notice of an accident after you have the accident. In Kansas, the law allows you 30 days from the accident to give notice to the employer. This means that if you have what you believe is a minor tweak to your shoulder that you initially think is insignificant, you have 30 days to tell the boss about the accident if it later becomes clear it is significant (By the way, WE ALWAYS recommend you tell the boss immediately – there are circumstances where your 30 days could be reduced to as few as 10 days, so telling them early just cuts down on the problems later). The downside to the 30-day limit is that if you miss it, it can be fatal to your claim. Seems, reasonable, right?

Stay with me. If you have an anvil fall on your head or fall into a tiger trap, it's pretty easy to determine the date of accident and then, using simple math, determine how much time you have before your claim is denied due to failure of notice (Again, tell them on Day 1 – you do NOT want to be the person who has the notice requirement reduced to 10 days). However, what do we do about repetitive accidents? What is the accident date for those? Glad you asked. The Kansas legislature has determined that your date of accident in a repetitive injury is the earliest of 4 possible dates: 1) the date you are taken off work by a physician due to the diagnosed repetitive injury; 2) the date you are put on modified or restricted duty by a physician due to the diagnosed repetitive injury; 3) the date you are advised by a physician that the condition is work related; or 4) the last day you worked for the employer if you are no longer employed by this employer.

The date of accident for repetitive injuries is important for reasons other than notice. It will tell us which insurance company is responsible if the employer changes carriers during a series of repetitive accidents. It will also tell us from where we start using your wage information to determine average weekly wage. The one glaring thing that you should notice about the above criteria for determining accident dates in repetitive injuries is that, with the exception of Number 4, all of them require a doctor to have diagnosed the condition. This, of course, makes sense. How can you give notice of a work related injury if you don't know that it is work related?

That, dear reader, is the problem. One would expect that once you have established an accident date resulting from a repetitive injury, you would now have, from that date, 30 days (or 20, or 10 – Remember: Report early!) to report it to the employer. Wrong! Why? Because while the statute requires you to have been told by a doctor that your repetitive injury is "work related" in order to determine your "accident date", the statute does NOT require a doctor's opinion from when the 30 days (or 20, or…well, you get it by now!) notice must be given to the employer.

Confusing? You bet! This is confusing even to seasoned professionals and the reason we know this is that a case recently came down from the Appeals Board for the Kansas Division of Workers Compensation that interpreted both of these statutory sections. This has s now resulted in one of the craziest decisions I have ever seen and the entire reason for it was because a truck driver decided to be a doctor on the stand.

In Ray v. Goodyear Tire & Rubber Co., Docket No. 1,057,893 (April 2012), the claimant was a truck driver who began having problems in his left shoulder in March or April 2011. He did not report the initial onset of symptoms. He saw his family doctor on June 13, 2011 who sent him to a specialist on July 20, 2011. The record does not indicate that any discussion of what caused the injury took place at that time. Ultimately, he was sent out for an MRI on August 20, 2011which showed a tear in his shoulder and he was set for surgery on September 12, 2011. The claimant testified that during a conversation with the surgeon about a week prior to surgery, he was told this was a work injury and so he decided to file a workers compensation claim on September 20, 2011. Because he did not lose any time or get put on restrictions up until the surgery date, the accident date was some time during the week before September 12, 2011, his surgery date.

Here is the problem: The notice statute, K.S.A. 2011 Supp. 44-520(a)(1) states, in part, the deadline to give notice is:

(A) 30 calendar days from the date of accident OR the date of injury by repetitive trauma;

(B) if the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for ANY injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought… (emphasis added)

Does anyone see a requirement that a doctor make the call that the injury is work related anywhere in there? No. It just says "the date of injury by repetitive trauma" and " any injury by accident or repetitive trauma". If this section of the statute had used words like "doctor" or "diagnosis" it would be a different ball game. But, as has been said by kings and queens, if "If's" and "But's" were fruits and nuts, we'd all have a better Christmas.

In Mr. Ray's case, the lawyer for the insurance company asked him a very simple question, which completely sunk the case for Mr. Ray:

"Q. (by insurance company lawyer regarding the time when Mr. Ray first saw his family doctor, Dr. Thomas) Okay. And, and you felt like your work was hurting your shoulder; would that be fair?

A. (by Mr. Ray) After, after I seen Doctor Thomas and it got worse, and then I knew it was work related but I couldn't prove it, so I didn't turn it in."

Two things here that Mr. Ray did wrong. First, when he first started having a symptom of pain or discomfort, he should have reported it immediately. At that point it becomes the employers problem to try to disprove the existence of a work injury. If they do, then he is always able to hire a lawyer to try to develop a counter argument. Second, and most importantly, he should have NEVER, NEVER, NEVER made a causation opinion at the hearing. He is not a doctor and is in no way qualified to suggest what did or did not cause his discomfort in the early days of his injury. Because he admitted that he KNEW his injury was work related early on, the Board determined that the notice statute (he was limited to 20 days because he saw a doctor BEFORE reporting it –See?) applied back in June and as such, he had 20 days from that point to report the accident.

But wait! His accident date wasn't determined to have occurred until September. This doesn't make sense! Welcome to Kansas Workers Compensation. This case is illustrative of the fact that because there are so many pitfalls in workers comp today, it is impossible for lay people to keep up. Always consult a lawyer at Haight Stang LLC before you say something that could destroy an otherwise compensable case. And ALWAYS report an injury or accident immediately. They don't get better on their own and if you miss a deadline, they can get MUCH, MUCH worse.

Categories: Workers' Compensation