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Understanding the 'Notice' Defense

New Jersey
September 12, 2019
June 6, 2019
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The lack of timely notice is a defense to traumatic injury claims.  A claimant must provide notice of the accident within 90 days, as required by Section 17 (N.J.S.A. 34:15-17), if not, there is a valid defense to the claim.  There is no requirement that the notice be written, thus verbal notice is also acceptable.  Formal notice is also not required and actual notice will be sufficient, meaning if an employer becomes aware of the accident within the 90 days this will suffice.

If an employer knows of facts that should make them think that there is a possibility of a work-related injury, that could also be found to satisfy the notice requirement -  such as was an employee suddenly seen limping around at work and did the employer inquire as to why.  

What is important is what a reasonable employer would have grounds to suspect, in terms of whether there was possibly a potential accident or injury.  Thus, what is significant is not solely to establish whether formal notice was given by the employee, but rather what the employer knew and when.  If the employer was aware of the accident within the 90 days that will typically be enough to establish proper notice.

Technically speaking, however, Section 17 breaks the notice requirement down even more specifically.   This section indicates that if notice is not given within 30 days from the occurrence of the injury, the employer still has a defense but only to the extent that it can show that it was prejudiced by the lack of notice or a defect or inaccuracy in same.  Further, if notice is given within 90 days and the employee can show that the failure to give prior notice was due to a mistake, inadvertence, ignorance of fact or law, inability, or fraud, misrepresentation or deceit of another person, or some other reasonable cause or excuse, then compensation may be allowed, unless the employer can prove it was prejudiced.  Practically speaking, as long as notice is given within the 90 days and there is no prejudice to the employer, it will most likely be deemed sufficient.  The courts tend to view the notice provision rather liberally and favor finding notice whenever possible.

Some useful questions to be asked when determining whether sufficient notice was given of a traumatic accident are: how much time has elapsed since the alleged accident, was the employer made aware of the accident, or was there a situation where the employer should have inquired as to whether a work-related injury occurred.

A common issue that arises in this area relates to claims where the alleged injury is a traumatic hernia.  It is important that those involved with claims understand that there is a different and more limited notice requirement that pertains to hernias. Under N.J.S.A. 34:15-12(c)(23) notice of a traumatic hernia must be given to the employer within 48 hours of the occurrence.  This 48 hour time period excludes Saturdays, Sundays and holidays.  There are often cases involving an alleged traumatic hernia, where notice was not properly given within 48 hours, yet treatment and indemnity benefits have already been provided when the case could have properly been denied for lack of notice.  This traumatic hernia notice provision applies only to inguinal hernias pursuant to case law.  Again the courts usually will liberally construe this and try to find notice.  

It is also noteworthy that there is no such notice defense to occupational claims.