Court of Appeals Decision Highlights the Challenges in Establishing a Successful Notice Defense

Although the Workers’ Compensation Act requires an injured employee to give his employer timely notice of his injury, mounting a successful defense based on the lack of notice is usually more difficult than it sounds. The courts typically construe the notice provisions in the employee’s favor, liberally defining what qualifies as notice and sometimes excusing the notice requirement altogether. A decision from the Court of Appeals just last week illustrates these issues and highlights the challenges employers face when relying on the lack of notice to defend a claim.

McAdoo v. MARTA involved an employee who had suffered from diabetes for several years. McAdoo’s condition regularly caused him to miss work, which was approved by MARTA under FMLA. In 2010, McAdoo began having back and leg pain. He sought treatment with his primary care doctor, who referred him to a neurologist. In October 2010, McAdoo ceased working because of his pain, submitting FMLA forms for his absences. These disability forms, completed by the primary care doctor and the neurologist, diagnosed McAdoo with peripheral neuropathy and lumbar radiculopathy, but both forms indicated that the disability was not work related. Six months later, a different physician determined that McAdoo’s worsening symptoms were caused, in part, by his work activities. McAdoo filed a workers’ compensation claim the very next day, asserting a gradual onset injury, with an accident date of October 2010.

Among the defenses raised by MARTA was the lack of timely notice. The Board rejected that defense, finding that MARTA had sufficient notice and that even if MARTA did not have notice, McAdoo had a reasonable excuse for not providing notice. The courts have long held that the notice given to an employer need not show that the injury arose out of employment or with a view toward claiming compensation. Notice is sufficient “if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so.” The Board found that MARTA had knowledge (presumably from the FMLA forms) that McAdoo was unable to work because of an inability to use his right leg, and it therefore had sufficient notice to conduct an investigation if it saw fit to do so.

The Court of Appeals side-stepped the issue of whether such notice was timely and sufficient, instead holding that there was sufficient evidence to support the Board’s decision that McAdoo had a reasonable excuse for not giving timely notice. Evidently, that determination was based on the fact that there had not been an affirmative diagnosis that the injury was work related until April 2011.

McAdoo demonstrates how difficult it is to establish a successful notice defense. If an employee gives notice of any injury or disabling condition, it is critical that the employer take affirmative steps to investigate and document the employee’s complaints in detail. Employers must, however, be cognizant of federal privacy laws when an employee indicates that a condition is not work related (something perhaps overlooked by the Board in McAdoo). Our attorneys are happy to assist you in navigating these muddy waters.

Written by: Brian Mallow, Esq.