It is shocking and disappointing to receive a letter from your employer’s workers’ compensation insurance or claims administrator that says that your workers compensation claim is “delayed,” or worse, “denied.” Unfortunately, it is not uncommon for insurance carriers or claims administrators to find some basis for denying that your injury occurred at work, or even that you are actually an employee. The first thing you need to know is that this is not the end of the workers compensation claim process. If you receive a denial letter and you do nothing it could result in losing your right to pursue your claim. However, you do have the right to challenge the insurance decision and there is a process for pursuing that challenge.
The legal process for challenging the decision by a claims administrator or adjuster to deny a claim begins with the filing of an “Application for Adjudication of Claim,” commonly referred to as an “Application.” Upon the filing of the Application, you become the “Applicant.” You can file the application yourself, but it is more common to obtain the assistance of an attorney. If you do not want to retain an attorney or cannot find one who will take your case, the Workers Compensation Appeals Board (WCAB), has employees designated “Information and Assistance (I&A) Officers.” They are not attorneys but are well versed in Workers’ Compensation law and, frankly, some know more about the law and the judges in their district office than many of the attorneys who hold themselves out as workers’ compensation lawyers. You may find the local WCAB District Office and information about how to contact an I&A Office on the web.
There are many reasons for denying a workers’ compensation case and even more for delaying the determination. The “delay” letter will often tell you what information is necessary for the adjuster to determine whether your claim will be admitted or denied. It should state a reason such as, “I need to conduct an employer level investigation” or “I have no medical evidence that your injury is industrially related.” Since the adjusting agency is required to respond to your claim form promptly it is often easier to send out a delay letter than to conduct a real investigation.
The delay letter should also inform you that you are entitled to up to $10,000.00 in medical care during the course of the investigation. It should tell you the date by which a decision will be made as to whether the claim is denied. That date should be no more than 90 days from the date the employer first knew of your claim. If a decision is not made by that time the claim is “presumed admitted.” Once a decision to deny the claim is made, your right to “up to $10,00.00 in medical care ends. It is important to note that a claims administrator or adjuster is required to conduct a “good-faith” investigation and not merely look for facts to justify a denial.
Often a doctor’s report will not state specifically that an injury is caused by your work. The doctor’s notes might say, “Has had back pain for months” and somewhere else might indicate that the patient “does some heavy lifting at work.” Even though you told your doctor you do a lot of heavy lifting at work and you are sure that is why your back is injured, it may not be clear from the doctor’s report or notes. If the employer has reported that you are always supposed to have someone available for help with heavy lifting, or if a co-worker reports that you said you had a car accident and might have hurt your back, the insurance has to look into it.
Another common problem is that the DWC-1, Workers’ Compensation Claim Form, has a blank entitled “Date of injury.” That leads people to expect a particular date in that blank. Most people do not know that they can enter a “period of time” rather than a “date” in that blank. HR people may even tell you that you must enter a specific date. That is not true. A “continuous trauma” injury or “CT” occurs over time. So if your claim form says August 1, 2011, as the date of injury because that is the day you could no longer take the pain, but your actual injury occurred as a result of heavy lifting over the last 5 years (CT 08/01/2009-08/01/2015), an adjuster might ask the employer what happened on August 1, 2011 and the response might be that it was an especially light day at work. That would require further inquiry in order to clear up what exactly is being claimed. To avoid this problem you should put “CT 08/01/2009-08/01/2015” as the “date of injury.”
Some claims present “red flags” for adjusters and they are trained to be suspicious. For instance, a claimant comes in Monday morning limping and reports that he was injured on Friday afternoon at work when there was no witness and no supervisor to whom the injury could be reported. A suspicious mind could think that the injury actually occurred on the weekend. Situations like this require more investigation than a fall from a ladder which is witnessed by three people and promptly reported. However, I have seen cases delayed or denied even where the injured person was taken from work by paramedics. Sometimes, employers do not want to admit that an injury occurred. Sometimes, there is already a bad relationship between the employer, or the supervisor, and the injured worker. Often employers are conditioned to believe that everyone who makes a workers’ compensation claim is trying to get away with something. (Many employees feel this way too and are embarrassed to make a claim.)
If your claim is delayed you should first read the delay letter carefully to see what is the reason given for the delay. You should consider what facts might appear suspicious to someone who did not know the whole story as you do. If you are able to clarify those facts by providing the identity of witnesses or referencing a notation on your time card, or providing whatever facts or information that might help confirm your story, you should do that.
Once a case becomes confrontational, though, it is often better to obtain legal counsel than to try to convince a suspicious claims professional of your position. Claims adjusters are people too. Many of them are very cynical or even angry at what they see as people trying to “game” them or the system. Attorneys are trained to deal logically, with facts. An attorney can help you organize the important facts to present your case and overcome the initial distrust of the employer or the adjuster.
Many cases may be denied for reasons that are not legally accurate. For instance, “you were not on the employer’s premises at the time of the injury.” While this might be a valid denial, it depends on the facts. Generally speaking, your commute to and from work is not part of your work and an injury during that commute is not covered by workers’ compensation. But, if your employer requires you to have your own car at work in order to go from site to site or to run errands, then your commute to work is also covered by workers compensation. If your employer assigns you a parking space in a separate building and you are injured after parking in that space, on your way to the employer’s premises, you are considered to have arrived at work for workers’ compensation purposes. There are many exceptions to the “going and coming rule.”
Another common situation is that an employee may have mentioned to co-workers an old injury to a body part. Later that body part is reinjured and a claim is made. This may result in a delay or denial of the new injury. But the law is that if you have a new injury to that same body part, you are still entitled to medical care and to temporary disability if it results from the new injury. Other articles deal with “apportionment” of permanent disability between the permanent disability caused by an old injury and that caused by a new injury, but “apportionment” does not apply to temporary disability or to medical care. If you twisted your knee getting into your work truck and it causes injury, even if that knee had been injured before, you are entitled to medical care and, if you temporarily cannot work, you are entitled to temporary disability benefits. If, after treatment, you return to the condition you were in before twisting your knee, then that would be the end of it, but if you have new permanent disability, you would also be entitled to permanent disability benefits.
The most disturbing trend that I have begun to notice is that an adjuster will deny a clam “because there is no substantial medical evidence that proves your injury is industrial and you have not been evaluated by a Qualified Medical Examiner (QME),”despite the fact that all the medical evidence from your doctor states that the injury is industrial. There is no legal basis to require an evaluation by a QME as the only grounds for admitting a work injury. Your treating doctor can diagnose a work injury. This seems to be a ploy to delay claims in hopes that you will give up and go away. It may violate the requirement to conduct a good-faith investigation. On the other hand, there are many situations, as discussed above, when a treating doctor does not clearly state that an injury occurred at work and clarification is necessary.
If you receive a letter instructing you to submit a request for a Panel QME, you need to take prompt action. If you actually receive a “panel” of three QME doctors you must make a choice within the specified time or the adjuster will pick the worst doctor on the list for you. Another article will deal with the QME process. An attorney who practices in your geographic area (or the I&A officer at your local WCAB) is likely to know some or all of the doctors on the list. It is really not a good idea to randomly pick a doctor or choose on the basis of locality if you can get more information about the doctor. Some doctors are much more conservative than others.
SUMMARY: If you have reported a work injury and received a letter that states that your claim is delayed or denied, that is not the end of the process. You have a right to dispute that decision and can often prevail. You should seriously consider obtaining an attorney as soon as you receive a delay letter. It may require a trial to sort out the facts but many denied cases are later found, either by agreement or after trial to be compensable. Many cases that remain disputed can be settled without ever resolving all issues. While it is usually recommended that you obtain an attorney to help you challenge the denial, it is not required that you do so. You may obtain help from the Information and Assistance (I&A) Officer at your local District Office of the WCAB.
Remember, call your attorney if you have any questions.
© Robert S. Havens, 2015
This article is for general information, and not meant as specific legal advice. You should always see an attorney for specific legal questions.