[MCLE SELF-STUDY]

MCLE SELF-STUDY

Read this article and take the accompanying test to earn one hour of Minimum Continuing Legal Education credit. Follow instructions on answer form. This month's article and test provided by the State Bar's Workers' Compensation Section.


Running Your Office

Attorneys need to know some workers' compensation law
to handle injuries within the office

by CHRIS ELLEN WILLMON

You know just what to do when a workers' compensation case comes in the door. You refer it to another attorney. You know better than to dabble outside your field of practice. So why would you need to read an article about workers' compensation?

Ask yourself if you employ or supervise employees. Yes? Then you need to know some workers' compensation law after all, just to know what to do when an injury happens in your office.

An employer has one working day after notice of an injury in which to give a claim form (DWC-1) to the employee. But what is "notice?" For that matter, what is a qualifying "injury?"

"Notice" is (per Labor Code Section 5402): Knowledge of an injury, or of a claim of injury from any source to the employer, (including to a managing agent, a superintendent, a foreman or "other person in authority"). The employer may learn of the injury from many sources besides a report from the injured worker. A comment from co-employee or client, or a note from a doctor may be enough to give "notice."

The employer must give an employee a claim form if injury causes time off work beyond the date of injury or causes medical treatment beyond first aid. The definition of "first aid" has been expanded to cover any one-time treatment of minor scratches, cuts, burns, splinters, or "other minor industrial injury." (Labor Code Section 5401(a))

When in doubt, and especially when an injury is disputed, a claim form should be given to the employee. The fact that a claim form has been given, when, and by whom, should be documented.

Sending a claim form is not an admission of liability. It puts the burden on the employee to complete the form and file it by returning it to the employer, who then has 90 days in which to investigate the claim. Failing to give a claimant the claim form doesn't stop the clock, and may cost valuable time needed for investigation. An employer should never fail to give a claim form just because he does not believe the injury happened; such a tactic can jeopardize the employer's right to present winning evidence.

The claim form should be given to the employee in person or by first class mail. The employee is also given notice of procedures, the right to an attorney and that workers' compensation fraud is a felony. (Labor Code Section 5401(a))

The claim form is filed with the employer when personally delivered to the employer or received by first class or certified mail. Filing with an employer's agent, such as his carrier, will satisfy the requirement. (Labor Code Section 5401(b))

The employer should send copies of the completed claim form to the employee and to the adjuster within one working day of receipt. The claim form asks the employer for three important dates:

1. Date employer first knew of injury.

When did the employer get "notice" of the "injury?" Per the discussion above, this isn't always clear to employers. It would be important for the employer to document how this date was arrived at.

2. Date claim form was provided to the employee.

This may not always apply. The employer often hears of the injury for the first time when an employee files a claim form he got from a doctor or lawyer. Employers are also confused by the fact that they often give a claim form to an employee twice, once when giving a blank claim form and the second time when giving the employee his copy of the fully completed claim form. It appears that only the first date is called for, if it applies.

3. Date employer received claim form.

This date seems to be the date the employee "filed" the claim form with employer, having filled out the top portion. The date is critical since it is used to decide whether penalties may apply; when medical evaluations may be allowed; when the statute of limitations runs; when the 90-day presumption of compensability is triggered; when an inactive claim is eligible for a dismissal. Documen-tation by the employer to back up the receipt date could make a big difference in the defense of the claim. (Labor Code Sections 5401(c), 5402)

A claim which is not denied within 90 days of the date the employee files the claim form is presumed compensable. Failing to give the employee a blank claim form in a timely fashion may mean the 90 days will begin to run before the date the employee files, according to some WCAB rulings.

If the injury is presumed compensable, it can only be disputed by evidence discovered after the 90-day period.

Some decisions have interpreted this to allow only evidence which could not have been discovered within the 90 days.

The employer must tell the carrier in writing whenever there is "actual knowledge" of facts tending to disprove any part of the claim. The employer should not assume that the carrier will somehow have the same information. If, for example, the employer learns that an employee claiming temporary disability has returned to work elsewhere, it is the employer's job to get that evidence to the carrier, as soon as possible, in writing.

When the employer thinks that no compensation is payable, additional rights can be invoked by writing the WCAB and the carrier. The carrier would then have to notify the employer, not less than 15 days before WCAB action, of a hearing at which a Compromise & Release or stipulation is to be approved. Without notice of a hearing, the board can still approve the settlement, but can also order payment of reasonable expenses including attorneys fees, costs and other sanctions. (Labor Code Section 5813)

The board can later determine whether or not compensation was payable. If the judge decides that payment of compensation was not appropriate, the carrier would have to reimburse the employer for any premium paid solely because of the inclusion of the payments in calculation of the employer's experience modification.

If the claim has not been rejected, the injured worker cannot get a comprehensive medical/legal evaluation within the first 60 days of notifying the employer. A treating doctor's report is admissible on all issues. (Labor Code Sections 4621(b), 6409, 6412)

The employer must give his employees the chance to designate a treating physician by posting a notice and notifying all new employees of their rights. Without meeting the notice requirements, an employee is automatically permitted to be treated by his or her personal physician. (Labor Code Sections 3550, 3551)

After the injury, the employer takes control of treatment by making a timely offer of treatment (if the employee has not pre-designated a doctor). (Labor Code Section 4600)

Medical control remains with the employer 30 days after the date of the injury, a period extended up to 365 days depending on the provision of group health care. (Labor CodeSection 4600.3)

Once the employer takes medical control, it is important to place that responsibility in the hands of a top-flight physician. Treatment that is medically sound and caring satisfies the employee's need, minimizes disability and expense, and is likely to have greater influence as evidence.


Chris Ellen Willmon is a partner with Hanna, Brophy, MacLean, McAleer & Jensen in San Bernardino and a certified specialist in workers' compensation law.

[CALBAR JOURNAL]