Disability Law

Employer's "Constructive Knowledge" of Accident Insufficient for "Actual Knowledge"

By David A. McCranie, Esq.

Section 440.185(1) requires an employee to notify his employer of an on-the-job accident within 30 days of its occurrence.  The employee's failure to give timely notice will bar a subsequent petition for benefits unless he can establish that one the statute's four subsections applies.  Subsection (a) will excuse late notice of an injury if the employer had "actual knowledge" of the accident notwithstanding the employee's untimely notice, while subsection (d) will excuse late notice if there are other "exceptional circumstances" in the case.

In Marion County v. Futch, decided on 6/5/2008, the JCC had found that the claimant's late notice of his accident  should be excused because the employer had actual knowledge of its occurrence.  But the First DCA reversed, concluding that the JCC had erroneously applied a "constructive knowledge" analysis, i.e., whether the employer should have known of the occurrence, and that in fact there was no evidence to show that the employer had actual knowledge of the accident. 

The JCC had further found that "exceptional circumstances" existed to excuse the late notice under subsection (d) because there was no accusation that the claimant had lied about the circumstances of his accident.  But the First DCA concluded that just because a claimant is truthful about the circumstances of his accident does not justify a finding of "exceptional circumstances."

Full post as published by Florida Workers’ Compensation Law Blog on June 06, 2008 (boomark / email).