Does Date of Knowledge Matter?

Saturday, June 17, 2006 | 0

The following is an adaptation from a thread post in the California Forums edited for grammar, spelling and clarity.

Does the date an applicant suspects his/her pain is as a result of daily work related activities important on a denied claim based upon the fact the claim form/application were not served/filed until after applicant quit or was terminated from his/her employment?

An EE filed a wc ct claim after his employment was terminated for cause. In the deposition EE claims he was aware his employment was causing injury but never filed a claim before termination. No medical report/treatment prior to termination.

EE will argue the supervisor was advised of the "pain"/ "injury" but no action was taken. i.e., no claim form provided, not referred to a doctor, etc. Company will argue EE never complained. This factual issue will hinge on the witnesses' credibility, "he said, she said". How will this effect the defense?

I read the relevant code section and notice the two elements "disabled" and knowledge. But how is "disabled" defined. Can someone be "disabled" and continue to work? Or does "disability" require time off from employment? Can self-imposed work restriction and no time off from work constitute "disabled"?

How strong is the defense?

L.C. 3600(a)(10), the "post-termination" defense section has a sub-section (D) which seems to usually be ignored by claims adjusters. This sub-section creates an exception to the general rule allowing a denial for claims presented after termination of the employee if, "The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff."

L.C. Section 5412 provides that knowledge of an industrial injury occurs, not when the employee feels pain, but when he becomes disabled and either knows or should know that the disability is related to his work.

If the claim is filed as a cumulative trauma and you have denied on a post-termination basis, your denial is simply, legally, unsubstantiated because of sub-section (D). I am assuming there was no medical opinion prior to termination saying the employee's injury was work related and that that same opinion was communicated to the employee. If there was, then the defense should stand. If there was not, the exception in 3600 sub-section (D) negates the defense...i.e., it simply does not apply and is not a valid reason to deny a claim.

Most injured workers are not aware of CT claims. They think in terms of specific incidents like slip and falls, lifting something heavy, etc.

Additionally, often a person is "working hurt." They continue because they need a paycheck comming in to pay the rent and put food on the table for their families. After they get fired or laid off they will often seek legal advice and only then are told they may have a CT claim. Denying such a claim on a "post-termination" basis is simply, legally, unsubstantiated and is not a legal basis to deny a claim.

If there is found to be "injurious exposure," during employment causing a CT injury, and the injured worker does not learn of the CT injury until after termination, then the post-termination denial is worthless and will earn the defendant an audit penalty if discovered on review. In short, it is simply not "legal."

Knowledge is required, and as previously posted, "Disability can only be determined by an M.D." It is not enough for an employee to think their work caused their problem...a physician needs to confirm their suspicion. If that happens before termination, then the defense applies. If it happens after, as is usually the case, the defense does not apply.

The following is from James T. Stewart's Work Comp Index, 6th edition under "Cumulative Trauma, Date of Injury,"

* Disability to determine D/A may be TD, PD, or "an impairment of bodily... function that impairs earning capacity": CHAVIRA 19 CWCR 302, 56 CCC... 631 as cited in HORTON 23 CWCR 285 @ p286 discussing post termination... claim where disability occurred only after layoff and exclusion under L.C.... 3600(a)(10) not a bar; see additional discussion infra "* Disability requirement... in L.C. 5412," p160; post termination injuries generally, CEB 2.31+; Hampton... 5.21; Hanna 21.03[2][a]; Herlick 8.17; O'Brien 4.7.1; St.Clair 8:158

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