Safety and OSHA News

She didn’t report injury for 5 days: Does she get workers’ comp?

Back injuries can be tricky. Pain doesn’t always show up right away. Does an employee have to report a suspected injury right away to get workers’ comp? 

Barbara Whipple worked for Elkins Mountain Schools in West Virginia. On April 6, 2016, she attended a conference for work.

After getting her luggage out of a car in a hotel parking garage, Whipple began to pull it up a ramp when she felt “a sharp shift in her body.” She didn’t experience immediate pain, but felt like her gait was off.

Whipple attended the conference for three days without a problem.

During a meeting on April 11, 2016, Whipple’s supervisor commented on her uneven gait. Whipple said she hurt her back on April 6 while attending the conference. An injury report was filled out.

On April 12, 2016, Whipple sought medical treatment after feeling pain in her back. An x-ray showed multi-level lumbar spine degenerative changes – Whipple had suffered a lumbar injury.

A claim administrator rejected Whipple’s request for workers’ comp benefits on the grounds that she didn’t suffer an injury in the course and scope of her employment.

The Office of Judges reversed the claims administrator’s decision. Among the findings: Whipple gave timely notice of her injury, even though it was five days after it happened.

The Workers’ Compensation Board of Review found the Office of Judges’ conclusions to be wrong. The Board noted Whipple didn’t report her injury on the day it happened. Rather, she waited until a meeting with her supervisor and others regarding the possibility of her leaving her position. The Board said Whipple failed to show she sustained a workplace injury. Whipple appealed to a state court.

The state appeals court said the Office of Judges’ reasoning was supported by evidence in the record and ruled Whipple should receive workers’ comp benefits. It found Whipple’s testimony to be persuasive. Her testimony, combined with medical evidence, proved she suffered a work-related injury, the court said.

Two out of five judges on the appeals court disagreed and wrote a dissenting opinion. The two dissenting judges noted the timeline in the case – that Whipple didn’t report her injury for five days – in their reasoning why they thought she shouldn’t receive workers’ comp.

(Barbara Whipple v. EMS Inc., West Virginia Supreme Court of Appeals, No. 17-0516, 1/25/18)

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Comments

  1. Tom Rezner, Ph.D.,SPHR, CSM says:

    Work travel is work related unless you are doing personal things on the side. Checking into the motel for the conference is work related. Reporting the accident after returning back to work is not like claiming a friday accident happened at work and not reporting it until Monday. She was out of town and therefore couldn’t fill the forms out until she got back from the Work Conference.

  2. Christine Tedder says:

    This is ridiculous, the employee should not of overloaded her suitcase, with personal items and she would not have been injured. It makes employers not want to send employees to any travel for business

  3. Sue Houser says:

    I think a phone call, email, some kind of notice to her employer should have been done that she had an injury while out of town. I tell all my employees “notification” is the key.

  4. patrick britton says:

    Patrick believes this injury should not be work related: “When a traveling employee checks into a hotel, motel, or into an other temporary residence, he or she establishes a “home away from home.” You must evaluate the employee’s activities after he or she checks into the hotel, motel, or other temporary residence for their work-relatedness in the same manner as you evaluate the activities of a non-traveling employee. When the employee checks into the temporary residence, he or she is considered to have left the work environment. When the employee begins work each day, he or she re-enters the work environment. If the employee has established a “home away from home” and is reporting to a fixed worksite each day, you also do not consider injuries or illnesses work-related if they occur while the employee is commuting between the temporary residence and the job location

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