On August 7, 2019 the Massachusetts DIA Reviewing Board vacated the hearing decision of an Administrative Judge that had awarded Temporary Total (§ 34) followed by Permanent and Total (§ 34A) on the grounds that “the judge failed to address [the insurer’s] § 41 defense insofar as it requires that the employee give notice “to the insurer or insured as soon as practicable.”
In this case the employee had waited three years and nine months before filing her claim. Notice and Claim are two separate requirements. “While an employee has four years from the date she becomes aware of the causal relationship between her injury and disability to file her claim, she must give the employer or insurer notice of an injury “as soon as practicable after the happening thereof.”
If it is shown that the employee did not give proper notice, then the judge “must go on to determine whether lack of notice is excused because the insurer or employer had knowledge of the repetitive back injury, or because the insurer was not prejudiced by the lack of such notice. G. L. c. 152, § 44.” The employee is barred from receiving workers’ compensation benefits if the insurer, the insured and their agent had no knowledge of the injury and the insurer was prejudiced by the absence of notice.
Furthermore, the hearing judge relied upon an inaccurate history and adopted the only medical report that did not mention that employee had suffered an injury from a fall at home while trimming a tree just days before going out of work.
Notice of an injury is the primary trigger for an insurer’s response. The proper reporting of an injury should never be overlooked or dismissed, especially when the history of what occurred and when is critical to the issue of compensability.
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