January 15, 2019
By Clifford D. Sweet, III
ome clients overlook potential issues which arise when the applicant’s attorney has failed to file a DWC-1 Claim Form.
If there is no claim form, then there is no right to a Section 4650(d) automatic penalty. Lab. Code, § 5401 subdivision (d) provides in part: “The claim form shall be filed with the employer prior to the injured employee’s entitlement to late payment supplements under subdivision (d) of Section 4650…..”
If there is no claim form, the employee may not seek a Section 4060, 4061 or 4063 QME panel. Lab. Code, § 5401 subdivision (d) also provides in part: “The claim form shall be filed with the employer….. prior to the injured employee’s request for a medical evaluation under Section 4060, 4061, or 4062.”
If there is no claim form, the employee is not entitled to a Section 5402 presumption of liability. Lab. Code, § 5402 subdivisions (b) provides: “If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.” (Emphasis added.)
If there is no claim form, the employee is not entitled to Section 5402 medical treatment up to $10,000 prior to denial of the claim. Lab. Code, § 5402 subdivision (c) provides: “Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000).” (Emphasis added.)