Legal Frequently Asked Questions (FAQs): Get Your Injury, Accident, And Insurance Questions Answered By Attorneys Who Know The Law
- Page 1
I was hurt two months ago and just reported the accident. The work comp carrier said they are denying my claim, as I didn't give notice within 30 days of the injury. Is that really true?
Missouri's Workers' Compensation Law does contain a notice requirement. Section 287.420 RSMo. states:
"No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice."
So, the lack of written notice within 30 days can be a defense to any claim. However, a claimant can defeat this defense if he or she can prove that the employer was not prejudiced by lack of written notice. First, if the claimant can prove that the employer had "actual knowledge" of the injury, there is no need for written notice, because the employer could not have been prejudiced. Aramark v. Faulkner, 408 S.W.3d 271, 275 (Mo. App. ED 2013). Second, if the employer does not admit actual knowledge or the claimant doesn’t prove actual knowledge of the injury, the claimant must produce evidence of lack of prejudice." Id.
Lack of prejudice is determined on a case-by-case basis. “The purpose of the notice requirement is (1) to enable the employer to minimize the injury by providing medical diagnosis and treatment, and (2) to facilitate a timely investigation of the facts surrounding the injury.” Hannick v. Kelly Temporary Servs., 855 S.W.2d 497, 499 (Mo.Ct. App. 1993), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).
I am out of work and don't have the money to hire a workers' compensation lawyer in Missouri. What should I do?
No worries. In Missouri, lawyers are only allowed to charge you on a contingent fee basis. They can charge up to 25% of the amounts they recover on your behalf. If you have received a settlement offer in writing before you hire a lawyer, the lawyer is then limited to a fee of 25% of only the amount that exceeds the offer. Here is an example:
If you hired a lawyer early on in the process of your case (ie. when you are still receiving medical treatment), and the lawyer eventually got your case settled for $10,000, then the lawyers' fee would be $2,500 (25% of $10,000).
If, on the other hand, you decided to hire a laywer because you thought that the settlement offer the insurance company sent to you in writing of $5,000 is unfair, and that lawyer gets you another $5000 for a total of $10,000, then you only pay a fee of $1,250 (25% of the extra $5000 your lawyer obtained for you above what you were already offered).
We at Bollwerk & Tatlow offer a free initial consultation to determine whether we can help you and to let you decide if we are the attorneys who are right for you.