Notice and Limitations

• Jurisdiction: Maryland

XIII. NOTICE AND LIMITATIONS

A. Notice Requirements

The time limitations for notifying an employer of an accidental injury, death, or occupational disease are as follows:

1. Accidental injury or death

Notice, in writing or orally, within 10 days after the accidental injury and 30 days after death.³⁸⁸

2. Occupational disease

Unless the employer or the employer's supervisor has actual knowledge, written notice within one year after the employee knows or has reason to believe he or she is suffering from an occupational disease and within one year after death resulting from such disease.³⁸⁹

3. Failure to give notice

Failure to give the required notice bars a claim for compensation unless the Commission excuses the failure on the ground that notice for some sufficient reason could not have been given or that the employer-insurer was not prejudiced by the lack of notice.³⁹⁰ The burden of proving prejudice is upon the employer-insurer to show by specific evidence that the failure to give timely notice actually harmed its ability to defend the claim.³⁹¹

There is a statutory presumption that absent substantial evidence to the contrary, sufficient notice was given to the employer.³⁹²

4. Hernia claims

An employee is required to report the development of a hernia within 45 days after its occurrence. LAB. & EMPL. § 9-504(a)(2).

B. Limitations on Filing Claims

1. Method of filing claims

Commission Rule 14.09.02.02A(8) and (9) provides that a claim is considered filed only when a completed and signed claim form, including the signed medical authorization, is received by the Commission and date stamped; and an electronic submission of a claim form is not considered a filing and does not prevent the running of the limitations period.³⁹³

2. Time limits—accidental injuries

A claim for compensation in accidental injury cases must be filed at the Commission within 60 days after the date of the accident, but failure to file the claim may be excused by the Commission on the ground that the employer-insurer has not been prejudiced thereby or for some other sufficient reason.³⁹⁴ Absent substantial evidence to the contrary, it is presumed that the employer or insurer was not prejudiced by the failure to file the claim within the 60-day period.³⁹⁵

However, failure to file the claim within two years after the date of the accident constitutes a complete bar.³⁹⁶ This two-year deadline is a condition precedent to the claim and may not be waived.³⁹⁷

The fact that the worker was unaware that he or she sustained a compensable disability does not extend this period of limitations.³⁹⁸

An application for death benefits resulting from an accidental injury must be filed at the Commission within 18 months from the date of death.³⁹⁹

3. Time limits—occupational diseases

A claim for disability from an occupational disease must be filed within two years (or in the case of pulmonary dust disease within three years) from the date of disablement or the date when the worker or dependents of the worker first had actual knowledge that the disablement was caused by the employment.⁴⁰⁰ "Actual knowledge" means real knowledge and not constructive knowledge.⁴⁰¹

A claim for death from an occupational disease must be filed within two years (or in the case of pulmonary dust disease within three years) of the date of death, regardless of whether the employee's dependents were aware that the death was caused by the employment.⁴⁰²

A claim for occupational deafness must be filed within two years from the time when the hearing loss is sufficient to become compensable and the worker has actual knowledge that the hearing loss was caused by his or her employment.⁴⁰³

4. Extending time limits—failure to file employer's report

a. Accidental injuries

LABOR AND EMPLOYMENT § 9-707(a) requires that an employer (including a statutory employer) must file a report with the Commission within 10 days after he or she has notice or knowledge of an accident causing disability for more than three days during the two-year period following the accidental injury.⁴⁰⁴

The three days of disability need not occur within the 10-day period during which the claimant must give notice of the accident. It is an open question as to whether the three days of disability must be consecutive in order to require the employer to file a report.⁴⁰⁵

If the employer fails to file a report as required by LAB. & EMPL. § 9-707(a), limitations on filing a claim for accidental injury or death shall not begin to run until the employer's report is filed.⁴⁰⁶

? Employers should be advised that the best practice is to file a report for every injury occurring on the job, even if the injury does not immediately result in three days of disability.

b. Occupational diseases

Whenever a disability from an occupational disease occurs, it shall be the duty of the employer promptly upon obtaining knowledge or notice thereof to report such disability to the Commission.⁴⁰⁷ However, the employer's failure to do so does not extend the limitations period.⁴⁰⁸

5. Extending time limits—fraud or estoppel

When the employer, by some unconscientious, inequitable, or fraudulent act, induces the failure of a worker or his or her dependents to file a claim resulting from an accidental injury, limitations are extended for one year from the time of discovery of the fraud or one year from the time when the facts and circumstances amounting to an estoppel cease to operate.⁴⁰⁹

As to occupational diseases, the defense of notice or limitations is waived where the employer makes compensation payments, or by affirmative conduct leads the employee or his or her dependents reasonably to believe that notice or claim has been waived, or where the employer fails to raise the defense at a hearing before the Commission makes an award or a decision.⁴¹⁰

The employer's failure to post notices, its payment of medical expenses, or treatment by the employer's physician do not amount to an estoppel.⁴¹¹

If the employer misleads the worker as to the necessity for filing a claim for compensation or promises to file the claim for the worker, this may constitute an estoppel.⁴¹² However, the worker must show that he or she actually and reasonably relied upon the employer's representation.⁴¹³

The employer is not bound by any representation made by his or her agent unless the agent was operating within the scope of authority in making the representation.⁴¹⁴

Mere silence will generally not raise an estoppel against an employer.⁴¹⁵

6. Limitations after voluntary dismissal or withdrawal of claim

If the worker withdraws or voluntarily dismisses a claim, the Commission may not reopen it; however, the worker may file a new claim as long as the period of limitations for filing a claim has not expired.⁴¹⁶

C. Limitations on Reopening Claims

1. Reopening for additional compensation

An application for the Commission to change or modify a previous award must be made within five years from the date...