WILLIAM WAGNER, Applicant,
v.
ALLIED SIGNAL AEROSPACE; ZURICH AMERICAN INSURANCE CO., Defendant(s).
No. LAO 763476
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
April 20, 2001
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, CHAIRMAN.
The
Workers' Compensation Appeals Board (Board) granted
defendant's Petition for Reconsideration of the Findings
of Fact issued by a workers' compensation administrative
law judge (WCJ) finding that applicant's claim of
cumulative injury during the period of 1995 to October
16,1998 was presumed compensable under Labor Code section
5402
1
based on defendant's failure to timely deny his claim.
The WCJ further found that this failure was caused by the
employer's breach of its duty to provide applicant with
an Employee's Claim for Workers' Compensation
Benefits (DWC Form 1, hereinafter claim form). Defendant
contends that the WCJ erred in finding that applicant's
claim is presumed compensable, asserting (1) that the
statutory 90-day period allowed to investigate and deny a
workers' compensation claim cannot commence earlier than
the date when the claim form is filed with the employer, and
(2) that applicant has failed to demonstrate the appropriate
circumstances for an earlier commencement of the running of
the 90-day period.
Because
of the important and novel issue presented, and in order to
secure uniformity of decision in the future, the Chairman of
the Board, upon a majority vote of its members, has
reassigned this case to the Board as a whole for an en banc
decision. (Lab. Code, §115.)
Based
on the Board's review of the relevant statutory and case
law, the Board concludes that (1) the 90-day period under
section 5402 begins to run when the claim form is filed by
serving it on the employer (i.e., personally delivered to the
employer or received by the employer by first-class or
certified mail pursuant to section 5401(b)), and (2) the
90-day period may, however, begin to run prior to receipt of
the claim form where the employer breaches its duty to
provide the form to the injured employee within one working
day of receiving notice or knowledge of an injury, which
injury results in lost time beyond the date of injury or
which results in medical treatment beyond first aid. We hold
that the employer breaches its duty to provide the claim form
when the employer is reasonably certain either that the
employee suffered an industrial injury or that the employee
is claiming such an injury as defined in section 5401(a), and
fails to provide the claim form.
I.
INTRODUCTION
This
matter was submitted on the record, without oral testimony,
on the issue of applicant's claim that the injury was
presumed compensable under section 5402. A review of the
record reveals that applicant was employed by defendant
Allied Signal Aerospace from 1982 through 1999.
Applicant's personnel file contains a notation under
"Employee's Medical Record," dated July 20,
1998, where applicant complains of, and states that he is
taking multiple medications to deal with, work stress. The
July 20,1998 notation states, in pertinent part, as follows:
"... Has tried many times to deal with this industrial
stress reduction in various forms. Feels Mike Rawlings is
prejudiced against him and has hampered [his] opportunities
for promotion and transfer. Has talked to Susan Mattich but
feels she is prejudiced and prefers to talk to Jess Jimenez.
States wife wants him to quit due to stress -anxious -
agitated [illegible]. EE [employee] spoke with Jess.
Explained his concerns to Jess. EE [employee] feels like he
'can't take it anymore.' Feels like it is
affecting him physically and emotionally. MD [physician]
ha[s] EE [employee] on multiple [medications] to deal with
work stress: Trazadone for sleep, Paxil for anxiety/stress,
Norco for pain, Lotensin/HCT2 (recently [discontinued] from
Vasotec to be able to [increase] the dose) for
[hypertension]; also take Lopid and Albuterol for pneumonia.
Jess will talk with Susan Maddock about the situation. EE
[employee] admits to losing 30 pounds because of problems
...
