As a rule of thumb, an injury that happens at work needs to be reported to a supervisor as soon as possible following the accident. If an injury cannot be promptly reported, the second best thing to do is immediately seek medical treatment for the injury.
In some situations, however, an injury sustained a work cannot promptly be reported. Sometimes people get hurt working offsite while driving to/from a work event or while outside of the office or facility. In other cases, someone may leave work with soreness that is expected to subside, only to worsen overnight and cause increasing pain and discomfort into the next day. Generally speaking, both types of injuries may be related to work and can lead to a valid workers’ compensation claim.
A couple things to keep in mind about timely reporting an injury
If for some reason sufficient time goes by and an employee reports an injury when they are no longer working for the same employer, the employer can deny responsibility under a post-termination defense. The law allows employers to deny claims made after someone has been laid off or terminated without prior knowledge of the injury or accident. The theory behind such a policy is to reduce unwarranted, vengeful claims brought by an aggrieved former worker. It is important to notify an employer of an injury ASAP as a post-termination defense can bar all available workers’ compensation benefits.
Preserve the accident site after an injury
It is also good to preserve evidence when there is an accident at the job site. Should someone who gets hurt at work leave the premises, the condition that caused the injury may not be the same the following day and it could prove difficult to recreate the injurious exposure. This is especially important where the injury happened without witnesses or video footage of the accident. If you’ve sought treatment, a doctor report is highly regarded as taking an accurate history of the accident that caused the need for treatment and thus documenting the injury.
What to do if fired or terminated before reporting an injury?
So, with that in mind, what does one do when they have been laid off or fired and have yet to report an injury? The answer really depends on whether the injury sustained was specific or cumulative in nature.
If you’ve been hurt on the job due to a specific incident, like a slip and fall or some other ascertainable event, and do not report it to your employer in a timely fashion you face a difficult task in proving your claim. This is the case whether you have been terminated or not.
Unfortunately, the law does not look favorably on individuals who go a long period of time following an injury at work without providing information about the accident to the employer. The law also discounts those claims made where no medical attention has been received following an alleged accident. As unfair as it may sound, keep in mind that an employer has a right to defend against a claim of injury just as much as an injured worker has a right to make a claim for benefits regarding that same injury. Waiting to report an injury until after you’ve been terminated or laid off only sets up the employer’s post-termination defense and what will likely end up being a denial of workers’ compensation benefits.
When a post-termination defense is used by the employer, the burden is on the injured worker to prove either the employer knew or should have known of the injury before the termination or medical records exist to show evidence of the injury prior to the termination. So, if the accident was witnessed keep track of the people who saw the event and ask for their statement. Try to document any communications reporting the injury to supervisors in writing so it can be documented, if necessary. If the employer is not sending you for medical attention, seek medical attention on your own to document the account and need for treatment.
A cumulative trauma claim on-the-other-hand may not present itself until well after an individual has left a particular employment. A cumulative trauma injury would be something like lung cancer that develops over years of exposure to a toxic work environment but does not present itself until long after the work was completed. In this scenario, knowledge of the injury usually does not exist until a medical opinion has been provided linking an injury to the individual’s exposure to work. This type of claim is seldom barred by the post-termination defense because knowledge of the injury did not exist at the time of the layoff/termination.
But I didn’t report the injury because I was afraid that I’d lose my job if I asked for workers’ compensation!
Finally, it’s important to know that as an injured worker, you are a protected category of individual in California. It is the declared policy of this state that there should be no discrimination against workers pursuing benefits available to them under the law for an injury that happened while at work.
When you’ve been terminated from your job, one of your first calls should always be to an attorney. You need to know what your rights and responsibilities are. This is especially the case where you have also been hurt at work and your employment has ended due to lay-off or termination. When this situation arises, an injured worker is charged with a formidable task of finding a new job while also needing medical treatment for an injury at work. If this predicament describes something you or someone you know is going through, please contact our office so we may discuss your options and provide the legal recourse you are entitled to. Give us a call at (619) 528-9800