Does Date Of Knowledge Matter?

Saturday, April 8, 2006 | 0

The following is an adaptation of an ongoing thread in the California Injured Workers Forum at www.workcompforums.com. The original has been edited for spelling and grammar.

Question: 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 was not served/filed until after applicant had quit or was terminated from his/her employment?

For Example, a claimant filed a CT claim after his employment was terminated for cause. In the deposition, the claimant states he was aware his employment was causing his injury, but never filed a claim before termination. No medical report/treatment was recorded prior to termination. So the question is, just how strong is the defense?

Answer: It can only be decided on a case by case basis, but it is a very defendable case. The claimant's attorney will need a thorough job description, or a J.A. It will all boil down to the length of the claimants employment, job duties, and reason for termination.

If the injured worker was a long time employee, and was typing 8 hours a day, then it will stand to reason that the injury probably did happen on the job. However, if the employee was only there a few weeks or months, and only performed limited typing, then the case is pretty well defendable.

It may depend on whether the employee stated why it wasn't reported? There are mandatory posters in the workplace and H.R. is supposed to review how to report an injury with all new hires. One should look for other claims via the Index Bureau or EDEX.

More often than not, such claims are retaliatory, based upon being terminated, and the denial stands.

L.C. Section 5412 states that from a legal standpoint, knowledge of an industrial injury occurs, not when the employee feels pain, but when the employee becomes disabled, and either knows or should know that the disability is related to his work. The real problem with post-termination claims of this type is that if the employee was able to do the work, and didn't need medical treatment while he was working, it's hard to understand how everything fell apart after he no longer had to do the work he claims had injured him. Otherwise, it doesn't matter how long he worked for that particular employer if he did the same type of work, or was exposed to the same harmful conditions in his previous jobs.

Question: The Employee could argue that the supervisor was advised of the "pain/injury", but no action was taken. Meaning no claim form was provided, and was not referred to a doctor, etc. The company will argue that the employee never complained. This factual issue will hinge on the witnesses' credibility... In effect its a case of "he said, she said". How will this effect the defense?

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

Answer: From a C/A point of view and the many post term claims, disability can only be determined by an M.D. If the case is 2005 or later, you will need to follow the PQME or AME process. Yes, it can be a crap shoot, but it is mandatory.

A perception of disability and a finding of disability are two different things. There has to be an injurious exposure.

Self-imposed work restrictions don't count. Again it's up to an M.D. "TPD" means "temporarily partially disabled", and thus a work restriction, and many injured worker's can work within the parameters of their restrictions, based upon what the M.D. opines, and the ability to accommodate from the employer.

Think of it in this light: If anyone feels too sick or injured to go to work, would EDD pick up a claim if it were not certified via a doctor's report?

However, if the client claims to have reported the injury, that's an exception to the post-termination exclusion, therefore one wont have to worry about disability and knowledge, unless he filed the claim form more than a year later. Though the type of injury he's claiming and the type of work he was doing may be relevant. Someone could have carpal tunnel syndrome and keep on working by typing for a while and then taking a break for a few minutes. On the other hand, if he's claiming a back injury and he went right on working as a warehousemen, lifting 100 lb. boxes all day long, that would be kind of unbelievable.

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."

If the claim is filed as a cumulative trauma, and has been denied on a post-termination basis, the denial is simply, legally, unsubstantiated because of sub-section (D). This is of course 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 (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, and lifting something heavy, etc. Additionally, often, if a person is "working hurt", they will continue because they need a paycheck coming 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."

Furthermore, knowledge is required, and "... 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 that suspicion. If that happens before termination, then the defense applies. If it happens after, as is usually the case, the defense does not apply. However should the physician document the patient's medical records with the fact that he sought medical advice for complaints involving the injured body part, it becomes a statutory exception to the post-termination exclusion. If the date of injury is before the termination, then there is also no post termination defense.

The following is from James 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

The requirement to put a patient on disability status doesnt only go to M.D.'s under the Labor Code. Certainly other professionals, such as, D.C., (Doctor of Chiropractic) Ph.D., (Psychologist) D.D.S.,(Dentist), D.P.M., (Doctor of Podiatric Medicine) etc, are also available to ascertain a disability status.

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