When Must a Claim Form Be Provided?
From Navigating COVID-19
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It's difficult for employers to decide whether and when to provide an employee who contracts COVID-19 with a claim form. They know that if they provide such a form, there is a strong likelihood that a workers' compensation claim will be filed. When does the law demand that a claim form be provided to an employee? When is it prudent to do so? Are there ethical considerations? What might the implications be for other employee relationships?
Each claim filed potentially increases the employer's workers' compensation costs and premiums. If the claim is accepted, the employer would be liable for all workers' compensation benefits related to the coronavirus exposure, including potential death benefits. Even if the claim is denied, the filing of the form requires the employer to provide as much as $10,000 in medical treatment until a claim is denied. (Labor Code § 5402(c).) The filing also allows an employee to request a panel of qualified medical evaluators (LC 5401(d)), and could result in expensive discovery and litigation costs to defend the denial.
But employers should not deny employees who contracted the coronavirus at work the information necessary to file a workers' compensation claim. If the employer fails to provide the worker with a claim form and the resulting treatment, the infected employee could suffer the worst health outcome, prompting greater exposure for the employer. Furthermore, a failure to provide a claim form probably would toll the statute of limitations for any claim related to COVID-19.
The simple truth is that there is no easy way to know when an employer should provide an employee who contracts COVID-19 with a claim form. Different employees have different levels of exposure to the coronavirus, and it's difficult to determine whether an employee's COVID-19 is related to the employment. So the decision to provide a claim form depends on the facts of the case. In this chapter, we discuss when the legal duty to provide a claim form arises, and the possible consequences for failing to provide it.
Duty to Provide a Claim Form
Labor Code § 5401(a) requires an employer to provide a claim form "[w]ithin one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid ... " So employer knowledge is key.
LC 5402(b) clarifies that an injury is presumed to be compensable "[i]f liability is not rejected within 90 days after the claim form is filed under Section 5401, ... " So within 90 days of receiving the claim form, the claim must be denied or there are serious legal penalties. (This rule, and the associated presumption and penalties, are discussed in-depth in "Sullivan on Comp" Section 5.16 Presumption of Injury –– 90-Day Rule.) Note that, as discussed in COVID-19 Presumptions, under the current executive order issued by the governor, in some cases the 90-day period is only 30 days.
LC 5400 requires an employee to serve an employer with notice of an injury in writing, but § 5402 states, "Knowledge of an injury, obtained from any source on the part of an employer ... or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400." So is employer knowledge the same as service of the claim form, and does it start the 90-day clock ticking?
The case law has established that under these statutes, the requisite knowledge required for an employer to provide a claim form is high. This topic is discussed in detail in "Sullivan on Comp" Section 6.5 Post-Injury Notices.
Legal Standard Under Honeywell
The seminal decision regarding an employer's duty to provide a claim form is Honeywell v. Workers' Comp. Appeals Bd. To appreciate the high standard of knowledge to which an employer is held, it is vital to understand what happened in Honeywell.
In that case, an employee alleged a cumulative trauma injury (an injury occurring over time) to his body and psyche due to his employment. His wife left a message with the employer's disability coordinator that her husband had been admitted to a psychiatric facility with a nervous breakdown, and that his work supervisor and others had pushed her husband over the edge with their “head games.” The wife asked for disability forms, the disability coordinator told her that they would be sent and confirmed receipt of the doctor's note verifying the disability. The disability forms were not sent at the time.
Three months later, the employer received a medical leave request form on which a box was checked that the injury was work related. The employer then sent a claim form, along with a pamphlet explaining workers' compensation. The employee completed the claim form shortly after receipt, but the claim was denied 75 days later. The parties disputed whether the claim was presumptively compensable under the 90-day rule (LC 5402). If the claim form should have been required when the worker's wife made her statements, the denial would be late. If it need not have been sent until the doctor's note was received, the denial would not be late. Did the wife's statements to the employer constitute knowledge of injury?
No, and the denial was accordingly timely. The Workers' Compensation Appeals Board held in an en banc decision that § 5402's 90-day period begins either when the employee files a claim form, or when an employer is “reasonably certain” of an industrial injury or claim, and breaches the duty to provide the claim form. The case was appealed all the way to the California Supreme Court, which disagreed.
In Honeywell, the Supreme Court held that an employer's duty to provide a claim form "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 [citation omitted].'" Put simply, the Supreme Court concluded, "The duty arises when the employer knows of an injury or claim, not when it should have known."
In addition, the Supreme Court held that the 90-day investigation period begins when an employee files a claim form with the employer –– it does not begin when the employee knows of the injury or claim. The Supreme Court noted that an employer could be estopped to deny the running of the 90-day investigation period. But, it stated, "[T]o establish an estoppel in the absence of a breach of duty requires a showing of actual fraudulent intent, rather than mere negligence." Accordingly, it is very difficult to assert that the 90-day investigation period under § 5402(b) is triggered without a claim form being filed.
Application of Honeywell
Because of the high standard under Honeywell, the case law is clear that an employer is not required to provide an employee with a claim form just because the employer was aware that the employee had symptoms. This is so even if the employer was aware of the incident that ultimately resulted in the injury.
For example, in one case, the appeals board held that an employee's left knee injury at work in 2010 was barred by the statute of limitations when she did not report the injury within one year of its occurrence. The evidence established that the employee had a slip-and-fall at work on April 15, 2010, and sought a consultation with the company nurse on-site. The employer also was aware that she took time off after the date of injury. But the appeals board stated, "While her employer can be charged with the knowledge that she had a slip and fall incident and required first-aid, applicant did not establish that her employer had notice of an injury." Accordingly, it concluded that the employee's specific injury claim was barred by the statute of limitations.
Similarly, the appeals board held that an employee's claim for injuries resulting from a motor vehicle accident en route to work Oct. 7, 2016, was barred by the statute of limitations under § 5405 when he filed his claim in 2018. The applicant asserted that his employer knew about the motor vehicle accident and sent him a get-well card after the accident. The board found that although the employer knew he had been injured in the accident, there was no evidence that it knew that he was claiming that the accident and injuries were work related. It concluded that the employer's duty to provide a claim form under § 5401 was not triggered and the statute of limitations was not tolled.
Application in Cases of COVID-19
The requisite knowledge triggering the duty to provide a claim form is not changed just because an employee contracts COVID-19. The fact that it generally is a nonoccupational disease makes it even more difficult for the employer to "know" that an injury is work related.
Certainly, an employer should provide a claim form to every employee who asks for one and alleges that he or she contracted COVID-19 at work. Regardless of the employer's feelings on the merits of the claim, the employee has the right to assert that COVID-19 exposure is industrially related. The filing of the claim form triggers the employer's duty to investigate the compensability of the claim, and, if there is a sufficient basis, later to deny the claim. But the employee has the right to obtain evidence to determine whether the claim is compensable.
The employer also should provide a claim form if it has actual knowledge from any source that the employee's COVID-19 is industrial. For example, if a co-worker tells a supervisor or manager that another employee believes his or her COVID-19 was caused by the employment, at the very least the employer should follow up with the employee to determine whether the worker wants a claim form. Furthermore, if an employer receives a medical report or medical leave-of-absence form documenting that the coronavirus was contracted at work, the employer should provide the employee with a claim form. Although it might be debated whether the employer in these kinds of cases "knows" of an injury, there is sufficient cause to believe that a claim is being identified by the worker.
As discussed in-depth in OSHA Requirements — Recording and Reporting COVID-19, the employer is obligated for purposes of OSHA standards and obligations to inquire and investigate whether a case is work related whenever an employee presents with COVID-19. So, independent of workers' compensation standards, an employee must be asked where he or she thinks the disease came from. Such inquiry might lead to statements by an employee invoking the obligation to provide a claim form.
The issue, however, is more complicated if the employee does not expressly ask for a claim form –– absent testing, the employer cannot know that the employee even has COVID-19 in the first place. Arguably, an employer does not know –– as distinguished from being "reasonably certain" –– in just about any circumstance that a sick employee has this specific disease, absent a test.
Even if the employer does know that an employee was diagnosed with COVID-19, it would not trigger the duty to provide a claim form in most cases. Knowledge that an employee has COVID-19 does not equate to knowledge that the employee is claiming that the diagnosis is work related. That is, the employer does not know –– again, as opposed to being "reasonably certain" –– how the employee contracted the disease.
Of course, employers must make decisions based on their complete knowledge of the circumstances. If a doctor, nurse or other medical professional who treats COVID-19 patients contracts the coronavirus, it's less reasonable for the employer to claim it did not "know" of an injury or claim. Nevertheless, even under those circumstances, given the standard in Honeywell, a viable argument can be made that the employer does not have the requisite knowledge to provide a claim form.
Considerations Regarding the Presumption
As discussed in COVID-19 Presumptions, the governor has issued an executive order identifying some circumstances in which some employees would be entitled to a presumption of compensability. That is, if a claim is filed that a case of COVID-19 is work related, it is presumed that it is, and the defense has the burden of proof to show that it is not.
A careful distinction must be drawn here. The executive order does not speak at all to the standard of knowledge an employer must have in order to be obliged to provide the claim form. Rather, it speaks to the situation in which a claim has been filed and the issue is sought to be proved in court. So, the presumption is not a valid consideration when judging whether the employer has the requisite knowledge compelling provision of the claim form. The presumption comes later.
Fraudulent Concealment of COVID-19
As discussed above in Honeywell, the Supreme Court held that if an employer knows of an injury or claim but does not provide a claim form, it could be estopped to assert the running of the 90-day investigation period. But that doesn't mean it could be subject to civil liability.
Workers' compensation is generally the exclusive remedy for workers injured in the course of employment. An employee is limited to pursuing workers' compensation benefits if he or she is injured at work and cannot sue the employer in civil court. As discussed, however, in "Sullivan on Comp" Section 2.17 Statutory Exception to Exclusive Remedy Rule, the Labor Code contains several statutory exceptions to the exclusive remedy rule.
Among them is LC 3602(b)(2), which allows an employee to file a civil claim "[w]here the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment." This exception was first recognized in Johns-Manville Prods. Corp. v. Superior Court, in which the California Supreme Court held that a cause of action may exist for aggravation of a disease because of the employer's fraudulent concealment of the condition and its cause. The Supreme Court allowed an employee suffering from asbestosis to pursue a civil action when he alleged that his employer fraudulently concealed that he was suffering from a work-related disease, thereby preventing him from receiving treatment and inducing him to continue to work under hazardous conditions.
This exception, however, is extremely limited. The employee must establish that: (1) the employer concealed "the existence of the injury"; (2) the employer concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment.
Moreover, even if an employee prevails in establishing that the exception applies, § 3602(b)(2) states that "the employer's liability shall be limited to those damages proximately caused by the aggravation." So, if a successful civil action for damages is brought under the theory of fraudulent concealment, the original injury cannot be the subject of those damages.
In the context of COVID-19, this exception would have very limited application. Failure to provide an employee with a claim form alone would not trigger civil liability. The employee would need to prove that the employer concealed the diagnosis of COVID-19, concealed the connection between the employment and the diagnosis and that the COVID-19 must have been aggravated by the concealment. There probably would be few, if any, scenarios in which this burden could be met.
- (2005) 35 Cal.4th 24.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 29-30.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 30-31. The WCAB's en banc decision is available at Wagner v. Allied Signal Aerospace (2001) 66 Cal. Comp. Cases 483, 488–489.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 38.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 38.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 33.
- Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 38.
- Nieblas v. Ruiz Foods (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 385.
- Batista v. Lee's Paving, Inc. (2020) 2020 Cal. Wrk. Comp. P.D. LEXIS 8.
- See Delta Dental Plan of California v. Workers' Comp. Appeals Bd. (Funk) (2014) 79 Cal. Comp. Cases 954 (writ denied).
- See County of San Bernardino v. Workers' Comp. Appeals Bd. (Griffin) (2018) 83 Cal. Comp. Cases 1278 (writ denied).
- (1980) 27 Cal. 3d 465.
- Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal. 3d 465, 477.
- Jensen v. Amgen, Inc. (2003) 105 Cal. App. 4th 1322, 1325.
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