Q&A – California Worker’ Compensation Case Dismissal Questions Revisited

Q: After filing a claim form can an employee withdraw the claim?

A: Yes. A petition to dismiss may be required, certainly a written request by the employee at a bare minimum. The former DIA WCAB FORM 43 may be of assistance if formatting questions arise.

Q: If an employee can withdraw the claim after filing, does this still require the insurance adjuster to deny or reject the claim?

A: Yes, in an over-abundance of caution I recommend denial as there are separate “notice” requirements which still obligate issuance of certain notices, including denial. Further it is best an employer deny such a claim to ensure 90 plus days later an attorney does not take over and allege presumed injuries pursuant to Labor Code section 5402 based solely on passage of time without written employer denial.

Q. What are the employer’s record retention requirements for a claim that is withdrawn?

A: Title 8 California Code of Regulations § 15400.2 reads as follows:

§15400.2. Maintenance of Records.

(a) All claim files shall be kept and maintained for a period of five years from the date of injury or from the date on which the last provision of compensation benefits occurred as defined in Labor Code Section 3207, whichever is later. Claim files with awards for future benefits shall not be destroyed, but two years after the date of the last provision of workers’ compensation benefits as defined in Labor Code Section 3207, they may be converted to an inactive or closed status by the administrator, but only if there is no reasonable expectation that future benefits will be claimed or provided.

(b) Inactive and closed claim files may be microfilmed or electronically stored for storage. However, if the file is not microfilmed or electronically stored the original paper files shall be maintained for at least two years after the claim has been closed or become inactive. Such microfilmed or electronically stored files must be readily reproducible into legible paper form if requested by the Manager for an audit.

(c) All claim files and the claim logs shall be kept and maintained in California unless the Manager has given written approval to a self-insurer or former self insurer to administer its workers’ compensation self-insurance plan from a location outside of California.

(d) All claim files and claim logs, together with records of all compensation benefit payments, shall be readily available for inspection by the Manager or his representative.

I recommend the above a bare minimum for workers’ compensation cases but “as long as you can afford it” to my workers’ compensation and employer clients. I typically qualify that with “those records might prove inexpensive insurance for you some day.”

Q: If an employee cannot withdraw a claim, but does not want to proceed further, what is the appropriate next step? (I am assuming the insurance adjuster would deny/reject the claim and then seek a dismissal. However, I understand that dismissal can only be sought after 180 days of inactivity).

A: We recommend denial, file closure for 1 year, then reopening if desired to see dismissal for lack of prosecution. Here is a PKNW Newsletter Link regarding dismissal which may assist:

https://dclbv.com/newsletters/2014/q1/resolution-option-dismissal-for-lack-of-prosecution/