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Injured at work, now what? How to file a claim when your employer does not

Under Labor Code 5401(a), an employer must provide a claim form (Division of Workers’ Compensation claim form “DWC-1”) within one working day of receiving notice or knowledge of your work injury that results in lost time beyond the employee’s work shift or that results in medical treatment beyond first aid. But let’s face it, not every employer does what they should following an injury. In fact, they often don’t do what they are required to in hopes you will just go away. This article will walk you through how to file a claim following your injury in the event your employer does not provide you with, and file, a DWC-1 claim for your injury.

Report your Injury in writing

Assuming your injury is not severe enough to require immediate medical attention, the first thing you need to do is report the injury to your employer in writing and state you wish to file a claim for workers compensation benefits. Labor Code 5401(c) states, “a claim is deemed filed when the claim form is personally delivered to the employer or received by the employer by first-class or certified mail.”

I can’t tell you how many times potential new clients call me and only verbally report their injury. Any time you verbally report something it becomes he said she said with your employer, and often times they have more people willing to testify you didn’t mention the injury. I am not saying write an essay. A simple text message or email will be just fine, the important thing is to report it in writing!

Request a DWC-1 Claim Form

Once you have reported your injury in writing, request your employer provide you with a DWC-1 claim form. You simply fill out the “Employee” section. Please keep in mind this is a legal document, so I always recommend keeping the information as vague as possible. For example, if you develop carpal tunnel from a desk job, under “describe injury and parts of body affected” I write repetitive injury to right wrist and hand. Keeping this form vague does not lock you into certain facts regarding the injury later in your case.

Fill the claim form out and demand a copy of the completed form

assuming your employer didn’t provide you with the claim form, and you have filled out your portion of the form, you need to provide this to your employer to prove actual knowledge. Knowledge under Labor Code 5402(a) is a managing agent, superintendent, foreman or other person in authority. Typically, the human resources department is in charge of reporting workplace injuries/claims.  Knowledge can come from any source (not limited to written notice), but written notice is best as it is easiest to prove!

Your employer is then required to fill out their portion of the form and turn it into their workers’ compensation insurance carrier (or open a claim themselves if they are self-insured).

Practice tip

It is very important that you demand your employer fill out their portion of the claim form in your presence and give you a completed copy. Under California Code of Regulations Section 10140 and Labor Code 5401(d), the employer is required to fill out its portion, sign it and deliver it to their workers’ compensation insurance carrier and a copy to you.

This is very important because often times injured workers only report injuries verbally right away, and don’t file a claim form thinking their injury will get better. I can’t tell you how many clients of mine have reported injuries verbally right away, only to have their employer state weeks later in the claim form that the first knowledge they had of the injury was when they claim form was submitted.   If you didn’t report your injury in writing, then making your employer fill out the claim form in front of you and giving you a copy will let you know if they are being truthful about your injury.

The above tips and instructions should enable you to file a claim for workers’ compensation benefits if your employer doesn’t follow the law. If you read this and still don’t feel equipped, please contact our office to help you!