Today’s post comes from our colleague Tom Domer of Wisconsin.
A U. S. Court of Appeals has ruled that an employer can require an employee to report their worker’s compensation injury even more quickly than required under Worker’s Compensation Law.
A Tennessee machinist experienced pain in her hands when she was transferred to a new position that was “like a muscle strain” when she pressed down on her machine and the pain stopped when she let go. The pain continued over the next two weeks, progressing to numbness and tingling, which forced her to see the Company Nurse. The nurse asked her why she had not reported her pain earlier and she said she wanted to “try to work through it” because she needed the job and did not want to tell her employer she could not do the job.
The next day the company fired her for failing to communicate an injury in a timely manner. She filed a claim with the Tennessee Worker’s Compensation Department and the District Court, which dismissed the claim. On appeal, the 6th Circuit noted that even though State law allowed employees 30 days in which to report a gradually occurring injury, the employer had the right to terminate based on its own policy of not reporting.
Don’t Be A “Tough Guy”
I see these claims often in my practice; claims in which the individual sustains an injury and wants to work through the pain or otherwise see if the pain will go away. Under these circumstances the worker does not report the injury. Since all injuries in worker’s compensation are based on a date of injury, this heroic “non-reporting” ends up biting the worker in the rear. For many employers, no report means no injury.
Gradual Occupational Claims
This “I’ll work through the pain” motive is especially damaging in occupational injury claims, which arise from repetitive motion and not the result of a single trauma. While it is understandable that an employee not be characterized as a “whiner” or “complainer” in the worker’s compensation setting, those who do not report do not benefit.
<em>With over 30 years of experience representing injured workers in Wisconsin, <a href=”http://www.domerlaw.com/Attorneys/Tom-Domer.shtml”>Tom Domer</a> was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the workers’ compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, <a href=”http://west.thomson.com/wisconsin-workers-compensation-law-2010-2011-vol-17-practice-series/172530/40638030/productdetail?”>West’s Wisconsin Workers’ Compensation Law</a>. Tom earned all his degrees in Wisconsin.</em>