Article provided by the Eley Law Firm. Please visit our Web site at www.eleylawfirm.com.
To receive workers' compensation benefits, injured workers are required to report the injury to their employers. Under Colorado law, workers must give this notice in writing and within four days of the injury.
But what happens if workers do not provide notice to their employers within this timeframe? Do they lose the right to receive workers' compensation benefits?
The short answer is no. Some employers will suggest or outright misinform their employees about their ability to receive benefits should they not provide proper notice. While workers may be penalized if they do not give this notice, they do not waive their rights to workers' compensation benefits.
Generally, workers who fail to give proper notice to their employers within the four- day period may be penalized by up to one day's compensation for each day thereafter that they do not provide written notice. For example, if a worker did not give notice to the employer until six days after the injury, the worker may be penalized up to two days' worth of compensation. Administrative judges are given the authority to determine the actual amount a worker will be penalized. The burden falls to the employer to prove it did not receive proper notice of the injury.
In certain circumstances, however, workers do not have to provide written notice to their employers.
- Posted Notice. Workers are only required to give written notice if their employers have posted the notice requirement in the workplace.
- Parties Who Can Provide Notice. Other parties besides the injured worker may provide notice to the employer. For example, if the worker is injured so severely that he or she is unable to provide notice, a supervisor or other manager with knowledge of the injury may do so on his or her behalf. Also, other parties who witnessed the injury may notify the employer, such as a superintendent, foreman, manager or even other workers. Written notice from any of these parties will fulfill the legal requirement.
Workers must provide notice of injury not only to their employers, but also to the Division of Workers' Compensation. In Colorado, injured workers have up to two years to file a claim for workers' compensation benefits with the Division of Workers' Compensation. Generally, this duty falls to the employer. Once the injured worker provides notice to the employer, the employer has 10 days to notify the Division of Workers' Compensation of the injury. The employer also must notify its insurance company. If the employer fails to do so, the two year statute of limitations on filing a claim may be tolled (i.e. the employee may receive additional time to file a claim for workers' compensation). However, if the employee does not miss three days or more, the employer is not required to notify the Division of Workers Compensation. Unless the insurance carrier has filed a general admission of liability — which admits the carrier's liability on the claim — the best practice is for the employee to file his or her own claim for compensation.
Workers also may receive an extension of one year to file a claim if they have a "reasonable excuse" for the untimely filing. This could include situations where the worker relied on the employer's statements that his or her injury did not qualify for benefits or the employer promised to pay lost wages for the injury but never did so. What constitutes a reasonable excuse is up to a judge's discretion.
While it is important for workers to understand that they do not lose their rights to workers' compensation just because they provided late notice of the injury to their employers, it is still necessary for workers to file their claims as soon as possible after an injury. The longer workers wait to file for benefits, the more likely it is that important evidence to support their claims will be lost or no longer available. This means injured workers run the risk of losing the benefits to which they are entitled to cover medical expenses and lost wages — compensation that may be indispensible to the workers and their families during a difficult time.
The bottom line is that just because a worker does not provide notice of an injury to the employer within four days does not mean the worker loses his or her rights to workers' compensation — no matter what the employer says. While the worker may be penalized for late notice, the worker does not waive his or her rights to these benefits.