Safety and OSHA News

When does worker have to give notice about ergonomic injury to get comp?

Some state workers’ compensation laws require employees to give notice of a workplace injury within a certain time period to get benefits. How does that work when the injury is ergonomic? 

Robert Bennett worked as a custodian for the Putnam Northern Westchester school district for about 15 years.

In March 2008, Bennett sought treatment for elbow and knee pain. He had surgeries to his:

  • right elbow in July 2008
  • left elbow in June 2009
  • left knee in August 2009, and
  • right knee in May 2010.

In September 2009, after three surgeries had been performed, Bennett filed a claim for workers’ comp benefits. He attributed his injuries to repetitive use on his arms and legs: going up and down stairs, lifting heavy boxes, and shoveling snow.

At issue: What was the “date of disablement?” That’s because New York’s workers’ comp law requires employees to provide their employer with notice of the claim within 30 days of suffering a compensable injury.

Bennett’s injuries occurred over the course of many years and weren’t the result of a single event.

A workers’ comp judge set Jan. 19, 2009 as the date of disablement. On appeal, the Workers’ Compensation Board set the date as March 13, 2008 … the first time Bennett saw his doctor for elbow and knee pain. That meant Bennett didn’t fulfill the requirement to notify his employer within 30 days. Bennett appealed.

An appeals court upheld the Board’s decision, noting:

“Although he knew his problems were related to the type of work he performed, he did not inform his employer that his injuries were work related while he was undergoing treatment.”

So Bennett’s request for workers’ comp benefits was denied.

New York isn’t alone in having a requirement that workers inform their employers about a work injury within a certain time frame. North Carolina, Missouri and Washington, DC, have the 30-day requirement. In Illinois it’s 45 days. Kentucky requires the worker to give notice about an injury “as soon as practicable.”

What do you think about the court’s decision? Let us know in the comments.

(Robert Bennett v. Putnam Northern Westchester BOCES, New York Appellate Division, Third Department, 2014 NY slip Op. 09077, Dec. 31, 2014)

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