After incurring an industrial accident most employers are usually very busy investigating the incident and reporting the injury to their workers’ compensation insurer or administrator. Employers also interview witnesses, obtain statements, fill out internal accident reports, present a DWC-1 Claim Form to the injured worker and arrange for medical care. All the foregoing are necessary and important actions to be taken. However, some employers then take an extra step which is unnecessary and can be detrimental to them. They require the injured worker to immediately fill out and file the Claim Form. This is probably the last thing an employer should do. We can only surmise that employers are confused about the law. Although an employer must present a Claim Form to an injured worker, there is no legal requirement that the employer cause the worker to fill out and file the form. Below we explain the advantages and disadvantages arising from whether the Claim Form is filled out and filed. As you will read, it is to the employer’s advantage when a Claim Form is not filed.
The benefits to employees who fill out and file a Claim Form are:
- They receive up to $10,000 worth of medical care while the claim is under investigation.
- The employer has 90 days to issue a decision on compensability. Failure to do so results in the claimed being presumed compensable.
- Any evidence gathered by the employer beyond 90 days from the date of submission of the claim form is inadmissible if it could have been obtained within those 90 days.
- Any late payment of periodic temporary and/or permanent disability compensation benefits is subject to an automatic 10% increase.
The benefits to an employer when a Claim Form is not filed are:
- The workers are not entitled to payment up to $10,000 worth of medical care while the claim is under investigation.
- The employer has unlimited time to issue a compensability decision without forfeiture, even if beyond 90 days.
- Admissible evidence may continue to be gathered regardless of when obtained, up until the date of any Mandatory Settlement Conference before the WCAB.
- An automatic 10% increase for late payment of periodic temporary and/or permanent disability does not apply.
Once again, we reiterate and advise employers that under Labor Code 5401(a) they are only required to present a Claim Form to an injured worker within one business day of knowledge from any source of an industrial injury beyond first aid. The law does not require the employer to cause the injured worker to fill out and file the form afterwards. Therefore, do not insist that injured workers file the form. By way of caution, note that the DWC audit unit will require proof that a Claim Form was timely presented to the injured worker. Thus, it is essential that an employer keep a written log as to the tender of the Claim Form, or a copy of any cover letter that may have accompanied the Claim Form when presented to the worker.