West Virginia law provides specific guidance regarding the reporting of workplace injuries by both employees and employers.

For their part, every employee who sustains a workplace injury is obligated to provide immediate – or as soon thereafter as practicable – written notice of the injury to the employer.  State regulations in West Virginia require this, and also provide that immediately after sustaining an occupational injury, the employee should seek necessary medical care and file a worker’s compensation claim.  Immediate notice is notice given within two (2) working days of the injury.

As an employer, it is important to remember that in order to properly manage a worker’s compensation claim, you should immediately start your investigation of the incident after you are told of the injury, especially if you have any reason to question whether a workplace injury actually occurred.  In addition, you should report the injury as soon as you are notified by your employee that an injury occurred.

Every employer in West Virginia must report every injury sustained by any employee on the appropriate forms (i.e., the employer’s report of injury).  This report of injury must be made within five (5) days of when the employer receives notice of the injury or within five (5) days of being notified by the carrier that a claim for benefits has been filed on account of such injury.  The employer’s report of injury should include a statement as to whether or not, on the basis of the information available, the employer disputes the compensability of the injury or objects to the payment of temporary total disability benefits in connection with the injury.  If the employer does, in fact, question whether an injury occurred, then the employer should attach any and all evidence or statements which support that position.

But what are the warning signs that an employee may not have actually suffered a workplace injury?  Consider the following list of issues which are often the most suspicious:

1.         Timing of the injury – The employer should examine whether there may be a coincidence between the employee’s injury and a need for that employee’s time off, or if the injury occurred on a Monday morning or after the employee engaged in strenuous activity over the past weekend;

2.         No witnesses to the injury – As indicated above, it is very important to immediately begin the investigation process once every workplace injury occurs.  Part of that investigation should include obtaining any and all eye witness statements from those who saw the incident.  If there were no witnesses to the injury, this could be a warning sign that the employee did not actually suffer a workplace injury;

3.         Inconsistent details regarding the injury/accident – Did the employee give sketchy or inconsistent descriptions of how the injury actually occurred or is the employee unwilling to provide information about how the accident happened?  The employee must complete a written report of injury and the employee’s written description should be compared to the details provided to the employer, treating physician, and/or co-workers;

4.         Unexplained or unreasonable delay in reporting the injury – If an employee waits a prolonged amount of time before coming forward about an injury, and/or cannot provide a supportable explanation as to why he or she took so long to make the report, it raises a red flag.  In that situation, the employer may want to focus its investigation in that area, especially if there were no witnesses to the incident.

Employers who properly report and investigate workplace injuries are often most successful in effectively managing the claim, if legitimate, or disputing whether an injury actually occurred, if illegitimate.

Alyssa Sloan focuses her practice in the defense of litigating claims involving workplace injuries and illnesses and related employment matters. She has represented employers in more than one thousand (1,000) protests before the Workers' Compensation Office of Judges and has extensive experience in the appellate practice of worker's compensation claims before both the West Virginia Workers' Compensation Board of Review and the West Virginia Supreme Court of Appeals.
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