As we all know, an employer must provide a claim form (DWC-1) within 24 hours of receiving knowledge of injury. The employer can gain knowledge of injury from any source and if liability is not rejected within 90 days after the date the claim form is filed, the claim is presumed compensable. One consequence of failing to provide a claim form is that the one year limitations period for filing an Application for Adjudication of Claim is tolled. If the employer satisfies its duties under the law by providing a claim form, then the one year clock starts ticking against the employee. In most cases, it is in the employer’s best interest to provide the claim form every time knowledge of an injury is gained.

However, it is very important for employers to distinguish between knowledge of an injury versus knowledge of an incident. Here is an example.

An employee is involved in a workplace accident and following the incident an investigation report and claim form is filled out by the employer and employee. The employee denied being injured and did not specify any body parts within the claim form. Over the course of the next few weeks the employee continued to deny injury and did not miss any time from work. The employee was then terminated for repeated safety violations. During the termination meeting the employee asked to see a doctor to be checked out but did not notify the employer of any injured body parts. Despite being advised of which clinic to visit, the employee did not seek any treatment until several months had passed.

Almost two years later a claim form was filed alleging various body parts and immediately denied by the employer due, in part, to expiration of the statute of limitations. At trial, the employee confirmed the denial of injury at the time the first claim form was completed. In fact, the employee confirmed there was no notice of injury to any body part provided to the employer up to and including the date employment was terminated. The employee also confirmed there was no medical treatment and no lost time from work. However, the facts also demonstrated the employee did request medical treatment at the time of termination. The trial judge found that, despite these facts, the statute of limitations was tolled on the grounds that the original claim form was never addressed and the claim was never denied.

On Reconsideration, the employer argued that the 90 day period within which to accept/delay/deny the claim was never triggered as there was never a claim of injury, only a claim of an incident. Labor Code section 5401(a) sets forth the two triggering events when an employer is required to provide a claim form:

“(a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, …, a claim form….” (Emphasis added)

Commissioners Sweeney, Brass, and Lowe upheld the trial decision. The most significant fact on which this opinion was based was that the claim form was, in fact, provided despite there being no requirement. After the claim form was provided Labor Code section 5401(c) required a copy to be provided to the employer’s insurer along with the notice of potential benefits, which was not done given the representations made by the employee of no injury. Additionally, the Commissioners noted that the employee’s request for medical treatment was sufficient notice of an “injury” pursuant to Labor Code section 5402 such that the 90 investigation period began. Since there was no denial, the claim was presumed compensable and the matter was remanded for further discovery on nature and extent.

This example is very narrow in scope. However, it also is great example that an employer should not rely upon the representations made by an employee that no injury occurred and no claim is being pursued. Even under such facts, if the claim form is provided as a matter of internal policy or routine, then employer must treat the incident as a claim of injury and timely deny it.