Protecting Your Business After a Workplace Injury: Guidance for Retail Employers
Working in the retail industry can involve serious workplace accidents, and employers everywhere are often left questioning the validity of a claim and the next steps to take when such incidents arise. The retail sector has one of the highest numbers of workplace accidents, with a reported 2.8 injury or illness cases per 100 full-time employees.[1] Employees holding retail jobs in New York – ranging from store associates, cashiers, and managers in grocery stores to employees in high-end luxury stores – are increasingly getting hurt on the job. It is, therefore, up to you, the employer, to follow the proper workers’ compensation protocol to ensure protection and prevent various penalties.
Common accidents occurring in the retail industry include:
- Slip-and-fall incidents involving objects or liquids on the floor
- Accidents involving damaged floors or stairways, including broken, cracked, or deteriorated flooring or stairs
- Incidents that involve unmarked hazards, including exposed wiring, open floor holes, uneven surfaces, etc.
- Strains or sprains from heavy lifting of merchandise, boxes, etc.
- Injuries from falling objects, including broken lights, ceiling tiles, etc.
- Lacerations or cuts
- Other types of incidents involving violent accidents, workplace illnesses, and occupational hazards, including hearing loss, facial disfigurement, respiratory conditions, etc.
If your employee alleges an injury, the following are steps you must take to help protect your business from fraudulent or unsupported claims.
What to Do When Your Employee Alleges an Accident
The best way to get ahead of a claim is to follow the proper procedure as soon as you are notified that an employee is alleging an accident or injury on the job. First, the employee must notify a supervisor of the specifics of the incident and proceed to obtain medical attention.[2] The medical provider must be authorized to practice by the Workers’ Compensation Board, except in emergency situations.[3] Next, the employee should submit written notice to you within 30 days. If the employee fails to do so, there may be grounds to deny the claim because a proper, contemporaneous investigation did not take place.
If your employee asks where they should seek medical attention, you cannot direct the employee to a particular health care provider, but you may advise them of their right to choose a provider and direct them to resources available through the Workers’ Compensation Board.[4] Exceptions may exist under the Preferred Provider Program or Alternative Dispute Resolution Program.[5]
As soon as you are notified of a potential claim, you must properly report and investigate the allegations, whether you are notified within the required 30 days or not. Part of this process includes notifying your insurance carrier and the Workers’ Compensation Board of the incident.[6] If the employee is represented by counsel, you must include their attorney or representative in all correspondence.[7] We recommend that you immediately complete a written report documenting the alleged accident history, including the date, time, location, detailed description of any injuries, names and statements of witnesses and the claimant’s supervisor(s), medical treatment sought, and photographs of the alleged incident location. Additionally, we recommend that all surveillance footage in the potential accident area be immediately identified, preserved, and reviewed. All documentation, photographs, and surveillance footage should then be provided to your insurance carrier and defense counsel to ensure proper preparation for any potential litigation.
After you have notified your insurance carrier and the Workers’ Compensation Board, defense counsel will be notified, engaged, and able to assume representation on your behalf. Critically, we stress the importance of a proper and timely investigation. This ensures defense counsel’s ability to advise on whether to accept the claim or proceed toward trial based on proper denials. We also recommend that witnesses be immediately identified, interviewed about the incident, and that all communications be documented as indicated above.
Steps Your Insurance Carrier and Defense Counsel Will Take
If the claim is controverted, there are several next steps that will be taken on your behalf by your insurance carrier and defense counsel. If a claim is controverted and proceeds toward trial, your insurance carrier will file a SROI-04 denying the claim with the proper defenses. Defense counsel will file a PH-16.2 and OC-400.5 on your behalf. The PH-16.2 is a legal document used to dispute the workers’ compensation claim with the proper defenses and includes all necessary witnesses, as well as the ability to cross-examine the claimant and any relevant medical professionals. This document must be filed with the Workers’ Compensation Board exactly 10 days before a scheduled pre-hearing conference. Failure to file this legal document can result in a waiver of defenses, cross-examination of witnesses, and your right to introduce all necessary witnesses.[8] The OC-400.5 certifies that the notice of controversy, or SROI-04, has been submitted to the Workers’ Compensation Board and that your asserted defenses have evidentiary support.[9] The pre-hearing conference will then take place, your defenses will be formally presented on the record, and a trial will be scheduled.
Proper Investigation and Reporting Are Essential to Success
It is crucial that you take the first steps in the reporting process to help ensure ultimate success, because this is how we verify whether an incident took place and whether there is evidentiary support to accept or deny the claim. With proper investigation and timely reporting, your chances of success improve significantly if the case is controverted and proceeds to trial. In our experience, employers that initially perform a proper investigation and provide all documentation, photographs, and surveillance footage in controverted matters are more likely to succeed and obtain a denial of the case in its entirety.
Ultimately, the retail industry continues to be one of New York’s largest sources of revenue, with employees alleging injuries daily. You deserve the fullest protection available under the Workers’ Compensation Law, and following the correct workers’ compensation protocol will help ensure your protection and overall success.
[1] U.S. Bureau of Labor Statistics, Employer-reported workplace injuries and illnesses in New York-2024.
[2] Workers’ Compensation Law §18.
[3] https://www.wcb.ny.gov/content/main/hcpp/who-can-treat.jsp.
[4] https://www.wcb.ny.gov/health-care-provider-search.
[5] https://www.wcb.ny.gov/content/main/Employers/when-injury-happens.jsp.
[6] Id.
[7] Id.