The employer is not required to provide an employee with a claim form for injuries that solely involve “first aid.” First aid is any one-time medical visit or treatment, whether provided in-house or by a medical professional, for purposes of treating minor cuts, burns, scratches, etc.

• If an employer is unsure whether an injury constitutes “first aid,” it is recommended that the employer err on the side of caution and provide the employee with a claim form.

Even if an employee does not complete and return the form, you must report the injury and its surrounding circumstances to the insurance company as soon as possible. The insurance company cannot ignore the provisions governing the timely payment of benefits if a job-related injury occurred. Failure to report an injury claim to your insurance carrier can have various ramifications, including but not limited to affecting your ability to secure policy renewal and the claim being presumed compensable by operation of law.

• Workers Compensation Claim Form - DWC 1

If the claim is denied or if the employee doesn’t fill out and return the claim form and doesn’t seek medical treatment, a statute of limitations applies to their ability to pursue the claim. Under Labor Code section 5405, an employee must file a workers’ compensation claim within one year of the injury date. But this deadline presupposes that the employee was given the required claim form in a timely manner, if the situation so required. Accordingly, giving the employee the claim form timely is very important.

Failure to timely provide a Claim Form - DWC 1 to an injured employee when required will suspend the one year statute of limitations for the employee to file a workers’ compensation claim with the Workers Compensation Appeals Board. In Galloway v. WCAB, a California Court of Appeal ruled that an injured employee whose employer did not inform him of his workers’ compensation rights could file a claim past the one-year statute of limitations. In this case, the employer failed to give the employee written notice of his workers’ compensation benefits after it learned of the injury.2

You or your insurer can delay accepting the claim for up to 90 days, issue a Notice of Delay of Claim and investigate it to determine if it’s a compensable claim (i.e., it arose out of the employment relationship and occurred in the course of employment). During that time, you must provide medical care for the injured employee. Your liability for medical costs incurred during the 90-day investigative period or prior to the denial of a claim, whichever is earlier, is limited to $10,000.3

The employer needs to render a decision and issue a notice as to whether it is accepting or denying the claim by the 90-day mark. Failure to do so within 90 days of receipt of the Claim Form - DWC1 creates a statutory presumption that the claim is compensable and benefits are due. In cases involving peace officers, fire fighters and other similar occupations, the investigation deadline is lowered to 75 days for certain presumed types of injuries, e.g. pneumonia, cancer, heart trouble, etc.4

In Honeywell v. WCAB, the California Supreme Court confirmed that the 90-day period for investigating a claim starts from the day an employee turns in a Claim Form - DWC1, even though the employer or one of its agents may have had knowledge of the injury at an earlier date. The employer’s negligent failure to provide the claim form delays the start of the 90-day period, but subjects the employer to penalties. Intentional employer misconduct, such as refusing to provide a claim form or misrepresenting the availability of or need for a claim form, starts the 90-day period from the date the employer knew of the injury.5

Basically, the burden is on the employer to give the employee a required Claim Form - DWC1 in a timely manner. The burden then shifts to the employee to return the claim form to the employer to start the 90-day or shorter 75-day clock running.

1. Lab. Code sec. 5401(a)