10-31-11; AN Employers’ Scariest Nightmare!!!—Late Accident Reporting. In this Federal Ruling, the Court Ruled Late Reporting Justified Termination. Should you consider ramping...

One tough concept for all U.S. employers to consider is heightened accident reporting rules. What may be mildly misleading is Illinois and many states have wildly lax reporting rules when it comes to the time an employee can report an accidental injury and still be entitled to workers’ compensation benefits. In Illinois, that period is 45 days which means one of your workers could be injured today and keep it a secret from you until the middle of December and then let you know. The monster problem that causes is your ability to investigate and learn from what happened to him/her is just about negated. It is also a Nightmare to set reserves accurately. Accident investigation has to be conducted within 24-48 hours to have a ghost of a chance at effectiveness.

The Ghoulish question risk managers and HR folks have to ask is whether an employer require employees to report their workers compensation injuries more quickly than required under state workers’ comp laws? Please note late or delayed reporting may be a new and Scary Illinois WC phenomenon as injured workers seek to sidestep the impact of the new Amendments to the IL WC Act which makes refusal to take a blood test into a Frightful presumption the employee was intoxicated. No one knows if intentionally late accident reporting will be treated as a refusal to test.

We are certain the most aggressive accident reporting model is “end-of-shift” reporting—we have one client who will terminate a worker if they aren’t told about the “accidental injury” or claim of repetitive trauma during the shift where it happens or appears. What is Shocking is their union supports this aggressive approach. We are happy to consult with any of our readers on how to put more aggressive accident reporting models into place.

A ruling from the U.S. Court of Appeals for the Sixth Circuit may be illustrative on the law. Please note this is the federal level just under the U.S. Supreme Court and is therefore a pretty strong statement by our judiciary in relation to U.S. law on the issue. The time period for the U.S. Supreme Court to consider the claim is still pending.

In Geronimo v. Caterpillar, (No. 09-6401, Opinion issued September 7, 2011 and we didn’t make the name up!!!) claimant was a female employee who worked for a large corporation as an at-will employee for approximately seven years. In June 2007, the company transferred the employee from her position as a machinist to an assembler position. The employee alleged she began to experience pain in her hands while completing the tasks required in her new position. The employee explained she experienced pain akin to “a muscle strain” in her palms, upper arms, and fingers each time she pressed down on the clutch plates on the assembly machine. She noted after she let go of the machine pain would stop. The employee claimed she experienced tightness in her muscles at end of her first day and stiffness in her muscles when she awoke the next morning. These pains continued over the next two weeks. After approximately four weeks on the job, the employee began experiencing numbness and tingling while performing everyday non-work tasks with her hands and arms which she attributed to her tasks at work.

By Aug. 1, 2007, the employee began to suspect she had carpal tunnel syndrome she related to work. After doing some internet research, the employee spoke with a company nurse for the first time about her pain on Aug. 14, 2007. By this time, the employee stated pain had become almost unbearable and was causing the employee to lose sleep. When the nurse asked why the employee had not reported her pain earlier, the employee explained she wanted to “try to work through it” because she was afraid she had no “other options than to do the job.” She also stated she didn’t tell her supervisor because “she didn’t want him to think she couldn’t do the job.”

The nurse informed the employee she would try to set up an appointment for the employee to see a doctor. The next day, the company fired the employee for “not meeting expectations” because of her “failure to communicate an injury in a timely manner.” Specifically, the employee was cited for failing to abide by the company’s stated policy requiring employees to report the occurrence of injuries immediately or, if the injury was gradually occurring, to report it as soon as an employee realized they are injured and suspects it is work-related.

The employee filed a complaint alleging the company unlawfully terminated her in direct retaliation for making a claim for benefits and/or asserting her right to benefits under the applicable state workers’ compensation act. The Federal District Court dismissed the employee’s claim finding the company’s policy did not violate state workers’ compensation law, and the employee appealed.

In affirming the dismissal of the employee’s claim, the Sixth Circuit noted although the employee was correct state WC law allowed employees a lengthy period in which to report a gradually occurring injury for the purpose of filing a claim of workers’ compensation, the statute does not expressly prohibit or establish a public policy prohibiting an employer from imposing a separate notice requirement for workplace injuries. In our opinion, the IL WC Act also provides 45 days for reporting an event but it does not prohibit an employer creating a shorter requirement for accident reporting and investigation.

It is also vitally important to note this Federal Appellate Court noted the employer had not disputed the employee’s workers’ compensation claim filed after her termination. We feel this decision effectively stripped out any monetary damages in the termination dispute--the employer and/or its TPA already paid for the employee’s surgery to correct a carpal tunnel problem. Thus, the court felt it was clear the company was not retaliating against the employee for having a medical problem or reporting her injury, but rather the employer was enforcing its own well-promulgated safety and accident reporting policy. Accordingly, the Sixth Circuit dismissed the employee’s claim.

We appreciate your Conjuring-up thoughts and comments. Please feel free to post them on our Eeeerie award-winning blog. If you want the web cite to the ruling above, send a reply.