The employee claims an accidental injury and that he reported it to his supervisor. The supervisor denies or doesn’t recall having received the claimed report. The case is denied. The employee seeks his own medical care and is recommended to have surgery. The employee tells the employer of that recommendation and asks that the employer provide the recommended treatment. The employer declines to do so. The employee has the surgery and files an Application for Adjustment of Claim. The employee didn’t report the accidental injury and had unauthorized treatment, so why should the employer consider a settlement?
- Failure to Report:
Question of fact – The inconsistency between the employee and the supervisor creates a question of fact. The hearing judge will consider the facts and the credibility of the witnesses and will decide whether the accidental injury was reported. If the hearing judge believes the employee, then for the purposes of the case, the accidental injury was reported. And, absent evidence that the injury occurred elsewhere, the injury will be presumed to have occurred at work as reported.
- Unauthorized Treatment:
Statutory exception to authorization requirement – If the judge determines that the accidental injury was reported, then the employer failed to provide statutory medical treatment for a workplace injury. Such failure is an exception to the employer’s statutory right to authorize treatment.
Common law exception to authorization requirement – Indiana law (Daugherty v. Industrial Contracting) provides a common law exception to the requirement that treatment be authorized by the employer where the treatment provided by the employer was inadequate, where the unauthorized treatment was necessary and where the employee gave the employer good faith notice of the need for treatment.
There are usually several points in the course of a denied claim where questions of fact and provisions of Indiana statutory or common law may lead to an award for the employee. A settlement may be a reasonable option because of the uncertainty related to the determination of questions of fact and the application of Indiana law.