I've written about the notice requirement in the New Mexico Workers' Compensation Act. I wanted to update my past post because the notice requirement has come up in recent cases.

Before I start on this new update on notice for a work injury, I want to recap what I've recommended in the past:

IN GENERAL IF YOU THINK YOU'VE BEEN HURT WORK, FILL OUT AN ACCIDENT REPORT IMMEDIATELY. IF THE INJURY MINOR LIKE A PAPER CUT, FILL OUT AN ACCIDENT REPORT!!!! Written notice, such as filling out an accident report, is the best form of notice and a report should be filled out whenever possible. However, verbal notice is also acceptable. So, at a minimum, an injured worker must tell a supervisor or some other manager of the work accident or work injury within 15 days.

Workers' compensation insurers look for any excuse to deny a claim. Filling out an accident report prevents the insurer from using a notice violation as justification for denying a claim.

To summarize the notice requirement in the New Mexico Workers' Compensation Act, an injured worker MUST give notice to the employer of a work injury within 15 days of when the worker knew or should have known that he or she was injured at work. If a worker violates the notice requirement, the injured worker's ENTIRE case can be thrown out resulting in NO workers' compensation money benefits or medical benefits.

It's a very harsh rule.

Usually, it's pretty clear when a worker is injured because there's a specific work accident like a fall from a ladder, a car accident, a cut on an arm, etc. and notice is notice a disputed issue.

As a side note, if the work accident or work injury was clearly apparent to the employer (a supervisor witnesses the work accident), then the New Mexico Workers' Compensation Act provides that the employer has received "actual notice" of the work accident or work injury. In the case of "actual notice", written notice is not required. However, If at all possible, an injured worker should fill out an accident report right after the work accident.

The problem is when a worker suffers a "repetitive stress injury" and there is no specific work accident. The classic case is an arm injury from lots of typing. Usually, the worker begins to experience minor symptoms which may come and go over a long period of time, usually longer than 15 days after the minor symptoms started. Then the "repetitive stress injury" symptoms become so bad and painful that the worker can no longer do his or her work. It is at this point when the injured worker gives notice of a work accident.

Unfortunately, in "repetitive stress injury" cases, employers and workers' compensation insurers will often argue that the injured worker violated the notice requirement and deny the complete workers' compensation claim.

Fortunately, the workers' compensation cases in New Mexico say that the time to give notice for a "repetitive stress injury" begins to run when the injury becomes disabling which in layperson's terms means when the injury prevents the worker from doing all or part of his or her job.

Unfortunately, the issue of when an injured worker became disabled from the "repetitive stress injury" is litigated by the employer and/or the workers' compensation insurer which will significantly expand the time it takes to resolve the workers' compensation claim.

To avoid losing your case and to avoid unnecessary litigation from a notice issue fill out a written accident report immediately after the work accident. If you can't do it immediately, then do it as soon as you can after the work injury.

Also, an injured worker should contact a workers' compensation lawyer soon after a work accident or work injury just to make sure his or her rights under the New Mexico Workers' Compensation Act are protected.