We are cautiously optimistic that the title of today’s blog caught your attention in that most claims professionals have been trained that Labor Code §5401 requires an employer to present a DWC-1 claim form to an employee within one business day upon receipt of knowledge from any source of an industrial injury beyond first aid. With that said, we ask, “What would an employer do if a very irate spouse phoned the HR department and complained that her husband (the employee) was hospitalized the previous evening after suffering a devastating heart attack, which the spouse attributed to the extraordinary stress and high physical demands of the job?” Would the employer be legally obligated to send out a DWC-1 claim form?
Surprisingly, the answer is “No.” A claim form is not required.
The controlling legal authority as to when a DWC-1 claim form must be served is set forth in the California Supreme Court decision of Honeywell v. WCAB, (2005) 35 Cal. 4th 24, where the court identified two situations when a claim form must be served:
- when an employer is notified in writing by the employee or has knowledge of industrial injury or claim from another source.
- when the employer has actual knowledge of industrial injury or of a claim being filed.
In our example above, a claim form is not required because the irate spouse never mentioned filing a claim, nor did her statement about the heart attack being attributed to job stress and physical demands of work constitute “actual knowledge” of industrial injury, as opposed to “speculation.” The Supreme Court made it quite clear that the test used to trigger a duty to provide a claim form is when the employer is “actually aware of an industrial injury” and not when they “should have known” of its existence.
For our readers who are still skeptical, here are the exact words of the Board when addressing this issue on remand:
“The employer’s duty under section 5401 arises when it has been notified in writing of an injury by the employee (§ 5400) or has “knowledge” of the injury or claim from another source (§5402, subd. (a)); it does not arise whenever the employer learns of facts that would ‘lead a reasonable person to conclude with some certainty that an industrial injury . . . has occurred or is being asserted’ (Wagner v. Allied Signal Aerospace, (2001) 66 CCC 483, p. 489).”
In another case the Board wrote: “. . . mere supposition or possibility of such knowledge (of industrial injury) is not sufficient to trigger a duty to provide a claims form” (Scott v. Workers’ Comp. Appeals Bd. (2000) 65 CCC 1340 (writ denied).
With that said, it is vital that employers realize not every incident is a claim, nor does every incident trigger a duty to provide a claim form. What an incident may do however, is trigger a duty to conduct an investigation, the results of which may or may not require the eventual service of a claim form. We wish to emphasize that both the Supreme Court and WCAB have said there is no need to send out a DWC-1 Claim Form based on speculation that an industrial injury probably occurred. Unless there is actual knowledge of industrial injury, “don’t send out a claim form.”
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