Safety and OSHA News

Worker delayed injury report, says it happened right before vacation

comp-costs

When workers don’t report injuries right away and then apply for workers’ comp benefits, it often raises a red flag. With conflicting testimony, these cases often come down to which side the court finds more believable.

Rodney Harris claimed he injured his back at work on July 6, 2007, while lifting a drain from a machine. He says it happened 15 minutes before the end of his shift, the day before he was scheduled to begin a one-week vacation.

He didn’t report his injury that day, and even admitted, when the case went to court, that he knew about the company’s policy that injuries must be reported to a supervisor immediately.

Harris said one reason he didn’t report the injury was because he’d suffered from pulled muscles in his back before, and that’s all he thought it was.

Over the weekend, his back pain increased. The following Monday, while on vacation, he saw a doctor.

Harris was diagnosed with a large disk herniation and severe degenerative disk disease in his lower back.

He eventually applied for workers’ comp benefits. The company didn’t think Harris had been injured at work, and the case eventually went to trial.

Among the facts recorded by the court:

  • The medical records from his first two doctor visits don’t indicate that Harris’ injury was work-related.
  • Harris’ wife claims, on the day her husband was to return to work after vacation, she called his employer, Keystone Foods, to say he suffered a work-related back injury before vacation. However, Harris’ supervisor says there was no mention of the injury being work-related during the call.
  • A neurosurgeon that Harris saw after his first two doctor visits also has no record that the injury was work-related in his documents.
  • Harris is legally deaf. His wife and mother both said communication problems with the doctors were the reasons there were no mentions of the injury being work-related in their medical records.
  • Harris’ doctors said they weren’t comfortable saying that his back injury was work-related because they had no documentation of a workplace accident.

Taking all these statements into consideration, both a trial court and appeals court found Harris’ testimony, along with that of his wife and mother, to be credible. It found that it was likely that communication problems Harris had with his doctors contributed to the fact that the injury happened at work was missing from their records.

The court upheld Harris’ workers’ comp benefits with one exception. Alabama law says if notice of a workplace injury isn’t given within five days, an employee won’t be entitled to medical benefits that may have accrued before the date of notice.

So the court said his initial doctors’ visits before he notified the company about the injury would not be covered.

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

Cite: Keystone Foods v. Harris, Court of Civil Appeals of Alabama, 6/4/10.

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  • http://safetynewsalert.com Ken Williams

    Of course I am going to say the courts were wrong. I do not like “Monday morning” injuries and sure don’t care for vacation injuries. He knew about company policy and still did not report it. Why did he have his wife call in for him? That always makes me suspicious.
    His back did not hurt him so bad he could not start his vacation. I know that sometimes injuries take time to hurt, that’s why we stress to report even the slightest injury, at least that way it’s recorded.
    Doc

  • Jan

    This is the very reason companies are losing millions of dollars.How is any company supposed to argue these claims when the courts almost always steer to the employee. When workers’ comp first began it was just that “to compensate an injured worker”, now it is the employers bank account the employee dips into when ever they decide they need the cash. How many times have I heard, oh, I injured myself three weeks ago Thurs and now it hurts so much I have to report it. Yes, we also have a policy on reporting injuries but that has nothing to do with the claim being accepted. Very seldom can I take a claim to trial because out chances of prevailing are usually below 30% because the courts side with the employee. So companies weight out the cost of settlement vs trial and it is usually cheeper to settle. Not to mention if we lose some states will award medical for life. It all is so frustrating.

  • Chuck C

    Apparently the company does not have a system that an injury is reported or it would have been presented in the company’s defense. This could be used against them. However, the treating physicians’ reports should carry a lot of weight. Furthermore, there were no witnesses stated in the facts presented.

    It really sucks that the injured worker was able to play the ADA Card on this one. For some reason we think that because a person is disabled that they are more honest that someone who has no disabilities.

    I think they should water board this sorry butt head and find out how he really got injured.

  • Jen

    It sounds like a good compromise.

  • http://www.jmeagle.com Safety John

    I’m missing some info…how much indemnity did he receive? That would be a tough one to draw conclusion to without that info. Good point to the story, but I didn’t receive the whole story. I do think that it’s entirely possible for something like this to happen…it always does, and they always get an award. This is common in our company because a great deal of positions offered by us are for lack of a better phrase)…offered to the no-skill, uneducated sector. One can ram home the point that injuries must be reported immediately, but with their scant paychecks (and a vacation looming in the next day or so) they will neglect to do so. It’s entirely possible that it was work related. I hope he feels better and can get back to full duty soon. And Kudos to the company for hiring a disabled person!

  • Wayne

    I am a safety coordinator in Alabama. I do not like the ruling for this reason: the employee admitted he knew he was supposed to report all accidents, no matter how minor. Employees have to take responsibility for workplace safety after they become knowledgable through training. After the employer provides training it is up to the employee to do everything according to safety teachings and the safety policy; just as they would for the general workplace policy. If the company has a no smoking policy – you don’t smoke on the job. We know the possible consequences for improper actions in the workplace; so, it should be no exception for reporting injuries.

    One doctor’s findings was that Harris had severe degenerative disk disease in his lower back. Now, you tell me; the company should be responsible for his disk disease? In this case, it sounds to me like that is what is about to happen. The guy could have discovered the weakness in his back at the slightest thing, like loading luggage into his car. He gets a free ride for all future expenses now. When the disk degeneration becomes so severe that Harris can’t work anymore, all the lawyers have to say is that his back problems are a result of his injury, when most likely, his problems are because of the degenerative disease. That is an issue he would have discovered sooner or later, even if he didn’t have a job.

    I just hate to see the freeloaders win again.

    Wayne

  • Jan

    I am sure aggravation of a pre-existing condition was also added. Here in IL a good portion of my claim are just that.

  • SafetyMan

    The above case indicates to me that the courts will look for ways to side with the employee. Three doctor visits and there was no discussion of the injury being work-related. Yet the courts assume that the employee’s hearing impairment prevented such discussion? Bull! The employee had ample opportunity to communicate the injury was work-related, but didn’t do it. How did he communicate with his doctors about his symptoms? Or treatment plan? Or follow-up visits? Or referrals? It’s all very suspicious but yet another way the employer gets screwed.

    We have a company policy that EVERY injury in the workplace must be reported. Some may be minor and don’t result in a comp claim, but it gets the incident on record in case the injury worsens over time. If an employee claims an injury happened “a couple weeks ago” but didn’t report it because they “thought the pain would go away” we write them up for policy violation. We may still have to file a comp claim, but it gets on the record that the employee didn’t follow policy, which can serve to diminish their credibility as to the circumstances surrounding the injury.

  • http://www.portofmontana.org Mark Darlow

    If the man was truely lying about the injury, why go to the doctor on the first day of vacation? I’m not suggesting he was totally honest about this but in the past when I hurt my back, the pain didn’t appear until the following day. Thank someone that I was at work then but it could happen.

    His witnesses were also credible so it was probably the right decision in this case.

  • Deborah

    This is such a common issue and frustrates me to know end. Sure it could have happened just the way it was reported but most likely there was some embellishment on the part of the claimant and his wife. First, it is amazing to me the whether it is a lanuage issue or disability, communications only become a problem when it comes to reporting and communication the facts of a work related injury. Second, somewhere his preexisting condition was lost. The company gets stuck with a lifetime of treatment for a condition that is just a likely the natural progression of a person condition. This is what health insurance is for. Finally, when the claimant admits he did not follow the rules, the doctor (against usual practice) had a problem with declaring the injury work related, the court rules in favor of the claimant anyway. Under what grounds does the company win?

    So insurance companies get rich, employers pursue locations where workers compensation is not a problem, and employees lose benefits (rising cost of workers compensation cost) and jobs.

  • Dave

    I agree with Wayne, they have to report any injury is the policy. Now if you are speeding in a no speed zone is the cop going to let you go? No he is going to write you a ticket. Using the poor communication story is poor. I’m sure he knows when it’s time to go home and lunch or when he has nothing to do at work. Put him on light duty and see what happens.

  • SafetyGoon

    Without all of the facts of the case in front of me, I won’t go so far as some have to call him a freeloader. However, what frustrates me to no end is when there is a perfectly good rule in place that in the end does not matter. What’s the point of requiring all employees to report injuries immediately when A) a portion of them won’t do it anyway and B) you can’t discipline them for failing to follow the rule and/or deny a claim for the same reason? If you fire them for not following the rule it will get twisted in court to the point of you having somehow fired them for wanting to report an injury (retaliation), when in fact you fired them for FAILING to report an injury. Damned if you do, damned if you don’t. This is the exact reason that it’s so much cheaper to just settle.

  • Tony

    1) EE apparently is able to communicate with supervisors in order to perform his daily duties and never made complaint of injury or pain:
    2) Doctors apparently were not able to communicate sufficiently with EE to determine where the injury occurred, but were able to figure out what his complaints were….so their lack of communication skills resulted in the injury not being noted in the records as work related…..Right!!
    3) I agree, I think the courts missed this one…..!!

  • Safety Barry

    If his wife was so concerned then why did she wait until a week later to call the office. She should have called that evening when her husband arrived at home if his being deaf was such an issue. Further more with him being legally deaf why did the wife or mother not attend the doctor’s visits to assist with communications. I’d like to know what Harris did during his vacation time as far as physical activities. Employees now a day are better skilled and versed in manipulating the workers compensation system then they are in high school education. With him having a hernianated disk his pain should have been very noticible as he left work that afternoon. It is hard to disguise that type of injury and level of pain.

  • Safety George

    I to am a safety officer for a small construction company in Alabama. Also the husband of a wife that has been in a workmans comp. claim for 3 years now and still not settled. The workmans comp. is set up for the employer, there is no huge settlements in Alabama. If you ever get to court, the judge has a chart to go buy for any injury to the body, he can only award you what is on the chart, and it is not much. The worst part about the whole thing is the way you are treated when you are hurt. The workmans comp. ins. automatically assumes you are out to beat them out of money and they aren’t the least bit concerned about correcting your problem, its like you committed murder and you are fighting for you life to prove your innocent. There are a lot of people out there trying to scew the system I understand, I just hate the way you are treated. On my wife, the workmans comp. doctor did a total knee replacement on her, then a month later when she couldn’t get out of pain we found the glue he used had come undone, and he admittedly told us that the glue didn’t do right in surgery. I’ll spare you what we had to go through to convince WC to allow another surgery to replace it again. He replaced it again and after it still didn’t do right we found out from another doctor that this time the doctor used to large of a prosthesis, and has it to high, only allowing her to bend it 70 degrees. They can’t go back in there again, and she is crippled for life, and in constant pain.

  • Paul Rotkis

    Another poor employee taking advantage of the system…and yes, freeloading as well. The fact that he is disabled is totally irrelevant; deaf people can communicate effectively in society.

    He knew what he was supposed to do; he was REQUIRED to report it ASAP. He failed to do what was required and therefore he should get zero! Too bad.

  • http://www.jmeagle.com Safety John

    I had to go back and look at the case file…wow. I’m glad I didn’t live through that one. From a Director’s point of view, I still say that I don’t have enough of what I need to say that we won or we lost, because I don’t know how much indemnity was awarded. Treatment is often a miniscule dollar amount compared to paying someone to watch television all day. That is where OUR biggest losses occur; your’s may be different.

    Yes, over the years I have seen abuse by employees…less often I see employees being abused. We can’t stop all cases of employee abuse of the WC System. It places us all in the precarious position of viewing all injuries as if they were suspect. I prefer the approach of cautious empathy, a trait which has had to develop over a long period of time and experience. When I entered this profession I was; as many of you may have been…overly sympathetic. That quickly changed into suspicious and cynical dogmatic pre-judgement in which every case was viewed as fraudulent. I’ve since found a balance which has led us to the lowest cost per claims in our company’s history.

    There will always be questionable cases. There will always be the doubt that an employee is actually striving towards MMI and is coasting along on the small dollar amounts that they receive from WC. Rest assured that a WC award is not considered “head-of household” wage…nobody gets rich from such claims. More often than not, collection companies will attach an award (we scour for such action prior to awards being decreed – spiteful aren’t we!). Always lean in the direction of VOC rehab…expensive, but effective!

  • Rocky

    So the alleged (I hate that word!) injured is legally deaf. Like mom would say: “Is your arm broke, too?”

    Most work related injury reporting policies require a form to be filled in by the injured party. Does his deafness also prevent him from writing? I think not.

    Doe’s the fact that he’s 15 minutes from a one week vacation keep him from reporting and writing. Yes, I think so! Too much trouble. Don’t want to interfere with vacation. The employer might request that he see a physician as soon as possible. That will cut into vacation time.

    So he goes to the doctor on his own when the pain gets worse but doesn’t mention that the injury occured at work? Come on now! Did he not tell anyone at the doctor’s office, like the lady who filled out the admissions papers, the nurse that took his vitals, or the doctor himself? At either medical facility?

    I know that it is not up to the employer to determine if a work related medical claim is valid. We have a duty and responsibility to report all injuries, no matter how dubious by nature. We then leave it up to the doctors and the insurance company to determine it’s validity. The doctors were treating this as a non-work related injury because they were not informed that it was work related! Proof enough, that at the time of the treatment, it wasn’t!!

  • Chris

    Ken, Jan and Chuck – Wow, glad I don’t work for you! Just the comment from Ken “Wht did he have his wife call in?”, an incedible lack of awareness. The man is deaf, think about it. I’m sure the courts have way more information than was presented here. I also wonder how many of the hard core folks with the anti-employee attitudes actually have done any manual labor in their life. I’ve met a few employee who aren’t really injured and are in fact scamming the system. These folks should be more aggressively investigated and prosecuted for fraud, in my mind.

    Most employees reporting are indeed injured and I’ve never met anyone with an injury who wouldn’t trade their health for the relative small amout they are paid on industrial insurance. You can argue wheter the injury was work related in some instances but to blame the employee for using a benefit when it is allowed is ridiculous.

    That being said, I agree with Wayne to the extent that I do wonder why hearings boards and courts make hereditary and age related diseases the responsibility of an employer. That is the trouble with a completely “no-fault” system. If it manifests on the job – the employer buys it. Of course, if we had a truly functional medical/insurance system so people could get the care they need regardless of how or where their medical issue occurred, we could all concentrate on preventing injuries and disease and not concern ourselve over which pot of money pays for medical care. I know – I’m just a left wing dreamer.

  • Jeanne

    Well, another one for the Worker and degenerative disc disease. I can’t tell you how many of my company’s claims have that as a “portion” of the diagnosis. Maybe if we all did back physicals on new hires, and had them sign that the pre-existing condition will NOT be considered in the event of a work related injury, it would save the companies/states billions of dollars in claims. My state program tells us to be more proactive in keeping the claims and costs down, yet when I try to fight a claim, the employee wins 99% of the time. And this is without even going to court. If they want to keep the costs down, they need to tighten the regulations in allowing certain costs. I could go on and on….

  • Jan

    Chris – how long have you been doing WC. I have seen hundreds of employees scaming the system. I am in IL but have 52 locations all over the US, any state that has settlements has a scam problem. I have several locations in TX and they are a no settlement state and “surprise” my claims are low there. Here in IL it seems when ever I settle a claim, the employee shares his success with others and boom 14 new claims for bogus injuries. You can say I am anti-employee but you hand over a 100,000 settlement for an injury that wasn’t reported but the courts awarded anyway. I am not saying all claims are bogus but I think at least 60% of our claims are fabricated and due to pre-existing conditions. I am also in agreement with Rocky

  • Keith

    Wayne is dead on with his comments…..there is absolutely no way any employer, anywhere, will win a claim. This one is so blatantly obvious to anyone reading it that it was NOT work related.
    When will the courts and judges wake up and see that they are continuing to encourage this kind of, well for lack of a better term – insurance fraud.
    Keith

  • Gary

    As always, it’s hard to get people to take the rules seriously when you cant enforce them. If the courts would say ” you didn’t report it as per policy, you don’t get the benifits” this problem would almost go away. Employees would report it on time faced with the fact that they would have to pay for it themselves or use their insurance and pay the deductable.

  • Wow

    You are supposed to keep claims costs down by protecting workers from exposure to hazards, not by refusing to pay for their legitemate claims. Worker’s Comp is supposed to cover all on the job injuires and was deisgned to be a no-fault insurance for employees hurt on the job. Employees traded the right to sue employers (like you) for damages, pain and suffering, and future earnings so that time loss and medical costs would be covered by no-fault on the job medical coverage. In our litigious society, think about the possibilities if employees could still sue you for exposing them to hazards and for injuries they recieved while on the job…

  • Tammy

    This kind of thing happens all the time and the employee side is usually taken. We had a case where weeks after an employee quit a job he claimed an injury stating he had received a small nick in his skin from a piece of plastic. He didn’t report it to anyone but when the arm got infected and he still didn’t say anything until his arm had gangrene (sp?). I believe in this case it was the hospital looking for someone to pay the bill and they came after us. His statement of how the injury happened was proven to be inprobable if not impossible by the industrial comission yet they still sided for the employee. It was a huge claim where he also received lost time benefits. So clearly wrong. I do think if he had his own medical insurance he wouldn’t have gone this route. I also take issue with paying claims and time lost for people who test positive on post-accident drug tests.

  • http://safetynewsalert.com Gerty

    I knew the outcome of this case before I reached the bottom of the article. It’s a down-right shame that the system can be so biased toward the injured worker. As a work comp specialist, I deal with these same situations every day. The employer CANNOT win, 90% of the time. It basically comes down to how much is this gonna cost me to settle. Fighting the claim has almost become a non-issue for me and I’ve been doing this for 25 years. It is the dirty little secret that I hope my employees never find out about, because if they only knew how easy it is to get compensation, I’m afraid they would all eventually try! Especially in this economy! I know that once I file a claim with my carrier, it’s just a matter of time before I pay out a hefty settlement, and my only hope is to keep it as low as possible. The whole system needs to be overhauled. Where to begin?

  • LAHog

    I lean towards agreeing with most comments made, and that the employer sits behind the eight ball in most cases. Most every part of this case sounds questionable at best. But the truth is no one here can make a judgement based on a few paragraphs in a new article. We need to know more – how much of an issue is the hearing problem? What did the worker do all week while on vacation? My father is legally deaf also, but with the hearing aids he has he can communicate just as good as anyone else. If it was that big of a problem, don’t you think someone would have gone to all the doctor visits with him? All the different doctors visits and not once did it come up that this stemmed from a work related issue…..come on, man, really. Some that have posted on here that lean towards agreeing with the worker in this case and wonder why the others have the view they do – well you obviously haven’t had to deal with workers comp issues before. I have been on the hourly labor side for 10 years and also been in management for 8 years, and some people will work harder trying to find a way to use the system than they work at their normal job duties.

  • Jan

    I agree with Gerty, its not a matter of can we win, it is how much is this going to cost us.I had a guy who landed in the hosp with a staph infection. He said he got it from a metal sliver in his hand at work. Not only was there no point of entry anywhere on his hand but him MD said he could have gotten it anywhere. Not only did the courts accept it they gave him a 60,000 settlement. I had another guy who claimed his back was so severely injured at work he couldn’t walk. I put some surveillance on him and we caught him downtown auditioning for American idol. I have been doing this over 25 years and that was the only claim I have ever won. We were just in the right place at the right time.

  • nomi

    Three physicians testified that there was no report of a workplace injury and the court believed the testimony of the employee, his wife, and his mother were more credible. I find that amazing, maddening, and disgusting. After reading the case file, I believe the man fell on the stairs at home and decided to make up a story about being injured at work.

  • Halftime

    Well, we know he was legally deaf (very vague condition, as indicated by LAHog’s post) and that might explain why his wife called the injury in but my question is – was he also illiterate? When is the last time any of us went to the doctor and didn’t have to complete a volume of paperwork related to our current and previous maladies? Why wouldn’t he indicate on the paperwork that it was a work-related injury? Relating the communication problems to his deafness and giving him a complete pass on it is ridiculous. I am sure he had plenty of opportunity to indicate in the medical paperwork that his injury was work-related. IMO what happened is exactly what I see happen almost everyday as someone responsible for Safety & WC for a workforce of 5,000+ employees – he was already dealing with a degenerative back problem and, with the court’s help, found a way to make it work-related. I would hope that the company disciplined him for a violation of policy as I have found that is about all that you can do in these type cases. Write him up, swallow hard and get ready to write a lot of big checks.

  • http://lexmac.com Blackgold

    Having just waded through the court record it is apparent to me that Keystone Foods “won a few, lost a few and some got rained out”. Amazing to me was the revelation that two of Mr. Harris’ supervisors could not remember whether or not they were at work at the time the claimed incident occurred. Well, if they couldn’t remember if they were at work – clearly Mr. Harris could claim that there was no one to whom to report an incident (even if he were so inclined).

    As for the allegation by Mr. Harris that he could not communicate with his doctor – again, amazingly enough, both his wife and mother who were/are his usual ‘interpreters’ claimed that the doctor ‘walked around, did paperwork, and did not look Mr. Harris in the face so that Mr. Harris could read his lips’. This sounds like normal doctor practice to me – that’s what generally happens to overworked medical staff – there are usually a large number of things to do with a patient – and so many patients ‘stacked up’ in the waiting room. Mr. Harris’ usual ‘interpreters’ surely could have been more diligent in their tasks – unless, of course, they were all in on the ‘fix’.

    All in all, I think that Mr. Harris got away with a big one. But Keystone Food didn’t exactly cover themselves with glory, either. How does a company win in such cases – probably rarely completely – the most a company can do is ‘damage control’ up front. And for goodness sake, the company should be sure that their supervisors know when they are at work.

  • Jan

    I have run into things like that with our supervisors too. They don’t remember if the employee told them or not, or I didn’t wittness anything when they previously stated they did. Once it is time to go to the hearing they no longer want to be involved. I am sure it is a problem in other companies too.

  • http://safetynewsalert.com Lori

    When is the last time anyone went to the doctor and the receptionist did NOT ask if your reason for today’s visit is due to an injury at work? This is as standard as confirming my billing address before being allowed into the waiting room. I am appalled to see someone using his disability as a free pass to avoid taking responsibility for his own actions. What a user! Such a sad commentary on the moral fiber of today’s workforce.

  • New Safety Girl

    Is it possible that he injured himself at work? Yes.
    Is it possible that he injured himself on vacation? Yes.

    Is it possible that he broke both hands and arms and wasn’t able to write “I hurt my back” on a scratch piece of paper and give it to his supervisor????

    I know if that had happened to me 15 minutes before the end of my shift and I was in immense pain, I’d be telling, signing, or writing to everybody around me that I had hurt my back and was leaving 15 minutes early to go to the doctor.

  • Chuck C

    Chris-have you ever gone to a hearing? I’ve been there many times and I’m still astonished when I watch the “injured workers” get out of their car and catch themselves walking or standing like they are not in pain then suddenly start walking with a limp or stooped over. I’m amazed how the “injured workers” put on a show on how bad they are hurt in the waiting room. I’m amazed how many lawyers are fishing for clients in the waiting areas. It’s like watching “My cousin Vinnie”. Several years ago a bunch of lawyers were kicked off the Texas Bar because they were coaching “injured workers” on how to present themselves to get a better claim.

    Oh I still believe and always will believe that if we break them we fix them but I get totally ticked off when someone learns how to or is taught how to work the system. I am for having a form of Workers’ Compensation but that system has to be governed and held accountable for their actions.

  • Paul Rotkis

    LORI…..

    BINGO! You hit the nail right on the head ma’am! I have NEVER been to a doctor’s office visit and him not ask me if the injury occured at work!

    Excellent point Lori!

    Paul

  • SD-CM

    If you have been involved in the safety or workers’ comp field any length of time at all, you expect that some employees will try to game the system, and you know the companies will try to protect themselves; both sides should be taken to task when they don’t follow the rules. In this case, the employee appears to be guilty of (successfully) gaming the system and it appears the company did a poor job of defending themselves. But, what I have not read about in any of the comments related to this case is just how totally incompetent those on the court were (and I assume still are)! How could any competent person reach the conclusion they did based on the factual evidence before them? That is what so totally frustrates me–it just doesn’t matter about what is right and wrong, the decisions are made based on something other than facts!