Notice under LC 5400 - Other Sources (California)

[bdoerning]

Can a third party provide notice of a work injury when they are not acting on behalf of the employee? An employee of a client has group medical coverage through his union and has been under a doctor's care for a degenerative problem. The employee now needs surgery for the degenerative problem, however the group insurance feels based on the diagnosis it shold be reported as a work related injury. The employee received a notice from the group insurance carrier advising him to report an injury to the workers comp carrier. The employee does not feel that his employment caused or aggravated his condition. He did show the notice to his employer, but continues to state that his surgery is for a non industrial condition.

Under LC 5400, does the notice given to the employee consistute constructive notice that a work comp injury is being claimed? Is the employer obligated to put their workers' comp carrier on notice? Can a third party assert that a claim is work related even though there is no medical opinion to substantiate?

Need some feedback. Thank you

[stewshe]

bdoerning,

Yes. See L.C.6409 which requires a physician who treats an employee with an occupational injury or illness to file a Dr.'s First Report, even if the EE fails to complete their portion. See also CCR 14003(a).

Lien claimants may proceed as applicants per Villareal-Lyons vs WCAB 26 CWCR 291.

This is especially true of cumulative trauma claims where most employees are unaware of the possibility. They think an on-the-job injury is only a slip and fall, a strain or sprain due to activity, and the like.

There is even a case where both the EE and the ER did not think an injury was work related and the Reynolds case was used to bar the 1 year statute for filing. Thus, if you represent the ER, you would be well advised to suggest they send the EE a Claim Form.

If the EE and ER have discussed it and the EE said he didn't want to file a Claim Form, if I were the CA, I'd suggest to the ER that they send the EE a letter confirming the conversation...along with Claim Form if the EE chnges his mind about filing.

[bdoerning]

Thank you James. However, there has been no DR01 or other medical report that states the condition is industrial. The medical group is asserting that it is work related by the nature of the surgery (rotator cuff tear) even though this can be the result of degeneration more frequently than sport injury or trauma.

What you are saying is that the employer should give the employee a claim form and report it to their workers' comp carrier?

[jpod]

bdoerning, to clarify is this the doctor forming this opinion or a claims handler with the health insuer?

[stewshe]

bdoerning,

I would say if the ER is aware SOMEONE is claiming an employee has an industrial injury it would be a good idea for that ER to give the EE a claim form.

If the EE returns the signed claim form to the ER, then the ER fills out the bottom portion, gives the EE a copy and sends a copy to the w/c carrier/adjusting agency.

I do not think the ER would have a duty to report the union's group health carrier's assertion this is or may be w/c....but that is a call for each carrier/adjuster to make in their advice letters to the ER.

Also, some of these group health carriers are VERY agressive in seeking reimbursement, especially when it impacts premiums charged the union. Other carriers I think have "sweetheart" arrangements with employers so they do not seek reimbursement on purpose because that might encourage the EEs to file comp claims. No proof of this, of course, and perhaps they just gravitate towards those companies who are less agressive in filing liens?

Also, jpod, good point! It is certainly clearer a claim form should be given if it is a physician finding a condition is or may be, or probably is w/c related.

On the other hand, a group health claims person charged with recovering money they have paid treating injuries or illnesses "caused, aggravated, accelerated or hastened in any way" by employment can be expected to be knowledgable of, e.g., CT claims. Suppose the EE was a iron worker (steel erector) or diesel mechanic?

Shoulder injuries are fairly common in these occupations, both as specifics and as CTs. If the EE has done this work for 20 + years, I'd suspect most honest orthopedic surgeons would find at least a 1% industrial component which is enough for 100% of treatment to be "industrial."

I think a claims person could file a lien for treatment already provided, but would probably be well advised to get medical input first as to the industrial component. I doubt many if any group health providers would file a lien without some medical input...perhaps an "in house" medical reviewer at minimum?

If all we have is a group health claims person trying to get the EE to file the claim form and the EE is refusing, I suspect the medical opinion will be presented shortly, either supporting or shooting down industrial causation.