Managing Employee Injuries and Disability and Occupational Safety

An employer’s first report of work injury is not admissible in a workers’ compensation proceeding as evidence that the employer is liable for the industrial injury. Labor Code Section 6412.

2. N OTICE R EQUIREMENTS UNDER THE W ORKERS ’ C OMPENSATION R EFORM A CT Effective January 1, 1990, certain major changes were made in California Workers’ Compensation law. These changes include new notice and claim procedures which are designed to reduce the number of formal filings before the WCAB. An employer must provide an employee with a claim form within one day after the employer has knowledge of the injury. The employee must also receive a written notice of his rights, and be apprised of his rights to obtain assistance from the Office of Benefit Assistance and Enforcement (OBAE) of the Division of Workers’ Compensation and of his right to consult an attorney. The application is then filed by the employee with his employer. A dated copy of the form must be sent to the employer’s insurance carrier and to the worker. Filing of the form has several consequences. It begins the running of the period upon which penalties may be based, is considered the commencement of a proceeding for statute of limitations purposes, permits discovery to be conducted, and invokes the formal medical dispute resolution procedures. Labor Code Section 5401. If the employer does not reject liability within 90 days after receiving the written claim, the injury is presumed to be compensable. This presumption can only be rebutted by evidence discovered subsequent to this 90-day period. COMMENT: The effect of a presumption is to place the burden of proof on the party against whom the presumption operates. Thus, if proper notice is not given to the employee within the 90-day period, the employer will then have the burden of proving that the injury was not compensable. And, the employer could only prove its case by evidence discovered after that 90- day period. Note also that the term “knowledge” is broadly defined and includes information obtained from any source by a managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation. Labor Code Section 5402. Because the Code speaks of the “assertion of a claim,” and not the “filing of a claim,” an employer is well advised to promptly investigate any industrial injury, whenever it acquires knowledge from whatever source. Note: A copy of the state-mandated Employee’s Claim Form Workers’ Compensation Benefits appears at the end of this chapter of the handbook.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 57