If you’ve been injured in the workplace, you are obligated to provide notice of the injury and notice of a claim within the statutory time limits. Massachusetts General Laws, c. 152, § 41 requires notice of an injury to the insurer or insured as soon as practicable within four years of the date the injured worker is able to connect the cause of her disability to her employment. While an injured person must provide notice, the insurer must also act if it perceives timing to be a problem. A recent decision asserts it is the insurer’s responsibility to properly raise this affirmative defense of improper notice at the time of the hearing, rather than on appeal.
This decision originates from ongoing injuries suffered by a registered nurse. The nurse injured her neck at work in January 2007 and sought treatment at the time of the injury. She kept working but suffered increasing pain until a surgery two months later on her C5-C6 vertebrae.
Two years after this procedure, the nurse began experiencing and treating neck pain again, but she remained on the job for another three years. She eventually sought physical therapy and received corticosteroid injections. The nurse managed to return to full-duty work but left in April 2014, due to exacerbated neck pain. This resulted in another surgery on her spine the following year. She has not returned to work since the operation in July 2015.
The workers’ compensation claim was filed in October 2015, which listed her last day of work as the date of the injury. The claim form alleged a cumulative injury from years of lifting and moving patients. The insurer issued a denial, stating there was no personal injury or injury in the course of employment, and there was no causal relationship shown. It also raised a §1(7A) defense, claiming prejudice as a result of late notice.
At the hearing, the injured nurse claimed temporary total incapacity from April 2014. The insurer argued there was no liability for the injuries because there was no connection, or causal relationship, between the injury and the workplace. The nurse was seen by an orthopedic surgeon, who testified she suffered a herniated disc from injuries in 2007; a cervical disc disease due to the work activities in 2015; and chronic myofascial pain as a result of the cervical disc surgery. The surgeon opined these were all related to her work activities between 2007 and 2012, and these activities combined with ones from 2012-2014 to result in her disability and need for treatment.
In his findings, the administrative judge credited the injured woman’s testimony, parting from the insurer’s assertion that the submitted records going back to 2007 should not be considered, due to the timing of the injured woman’s claim. The judge adopted the opinions of the orthopedic surgeon and found the employee’s work activities were a major, but not necessarily predominant, cause of her disability and need for treatment. He determined the neck injuries stemming from the 2007 incident to be compensable, and he awarded the requested benefits. The insurer appealed.
The insurer argued to the Reviewing Board that the employee should not have been awarded benefits because her claim was barred by the four-year statute of limitations. The Reviewing Board pointed out this is an affirmative defense, which must be formally raised before the burden shifts to the employee to show she complied with the notice and claim requirements. Failing to do so means the issue is waived. The Reviewing Board held that merely listing “late claim” on its initial denial did not meet the requirements for providing notice of an affirmative defense.
The Reviewing Board determined the administrative judge’s findings sufficiently addressed his conclusion that the 2007 injury arose out of the course of her employment and was compensable. The Board also found the award was adequately supported by the adopted opinion of the orthopedic surgeon, which connected all of the injuries to the injured nurse’s performance of her workplace duties over the course of seven years. The award of temporary total disability benefits was upheld.
This board decision shows the need to act as quickly as possible in notifying the insurer and filing a workers’ compensation claim to make sure you obtain the benefits you need. The experienced Massachusetts workers’ compensation attorneys at Karsner & Meehan can assist you with your workplace accident claim. Call our office today at 508.822.6600.
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