Q: I cannot provide an incident date for a work related injury. Can I file a claim still?
I'm a stocker at a local grocery store and I'm on short term disability due to herniated disk in my lower back. I'm also in need of back surgery. I cannot provide an exact date of the incident because it was a gradual increase of back pain over the course of a week or so. I did inform my team leader of my back pain on multiple occasions. However, we figured it would go away like it usually did after working for an hour or so into my shift. This time it didn't go away. So far I have had 2 neurosurgeons a chiropractor and physical therapist tell me that my injury is due to my job. I was also told that not all people will have a defining moment of when the disk actually herniated and sometimes it can be gradual. So far I have had no luck in finding an attorney to take my case because I don't have an incident date for my injury. I don't have any past medical records of back pain prior to working here either.
A:
Hi, you laid out your question in a clear concise manner so I hope I can provide the same type of answer for you. The type of injury you apparently have is called a repetitive trauma or occupational disease type injury. These type of injuries are notorious for having a date of injury that can be very difficult to pin point. However I will give you some tips that will hopefully give you an advantage. ( I was a judge with the DWC appeals panel and I wrote more than one decision reversing hearing officers at DWC when they got the date of injury (DOI) wrong.) Is the DOI the date the injury first manifests? Probably not. Is the DOI the first day you are unable to perform work as you did before? Again, not likely. How about the first day you miss work? Again, not probable. SO you can see why insurance carriers will claim you did not give notice of your injury w/i 30 days. Just as you have described such injuries occur in increments, over time so it is hard to discern the DOI. The Appeals Panel has most often ruled the DOI is the date you sought medical attention and the medical provider links your condition to your employment. So that is your best DOI. If the injury is not reported w/i 30 days of the DOI you can establish "good cause" because of trivialization or minimization; you did not think it was more than soreness until it became so bad you had to seek medical help. But to establish good cause you must show that you had "good cause for each day thereafter that it was not reported. I understand you reported to your employer but it has been my experience employers seldom remember such reports. Also if the employer does not report a claimed injury to the IC in a timely manner the employer may have to pay out of pocket for the claim so they have an interest in not remembering.
If you speak with the right lawyer familiar with WC you will know because they will be familiar with the lingo; such as BRO, HO, CCH, MMI/IR, TIBS, IIBS, SIBS, LIB, IRO; AND ON AND ON. Best of luck to you.
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