Code Section Group

Labor Code - LAB

DIVISION 4. WORKERS' COMPENSATION AND INSURANCE [3200 - 6002]

  ( Heading of Division 4 amended by Stats. 1979, Ch. 373. )

PART 4. COMPENSATION PROCEEDINGS [5300 - 6002]

  ( Part 4 enacted by Stats. 1937, Ch. 90. )

CHAPTER 2. Limitations of Proceedings [5400 - 5413]
  ( Chapter 2 enacted by Stats. 1937, Ch. 90. )

5400.
  

Except as provided by sections 5402 and 5403, no claim to recover compensation under this division shall be maintained unless within thirty days after the occurrence of the injury which is claimed to have caused the disability or death, there is served upon the employer notice in writing, signed by the person injured or someone in his behalf, or in case of the death of the person injured, by a dependent or someone in the dependent’s behalf.

(Enacted by Stats. 1937, Ch. 90.)

5401.
  

(a) Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits under this division to the injured employee, or in the case of death, to his or her dependents. As used in this subdivision, “first aid” means any one-time treatment, and any followup visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injury, which do not ordinarily require medical care. This one-time treatment, and followup visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel. “Minor industrial injury” shall not include serious exposure to a hazardous substance as defined in subdivision (i) of Section 6302. The claim form shall request the injured employee’s name and address, social security number, the time and address where the injury occurred, and the nature of and part of the body affected by the injury. Claim forms shall be available at district offices of the Employment Development Department and the division. Claim forms may be made available to the employee from any other source.

(b) Insofar as practicable, the notice of potential eligibility for benefits required by this section and the claim form shall be a single document and shall instruct the injured employee to fully read the notice of potential eligibility. The form and content of the notice and claim form shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers’ Compensation. The notice shall be easily understandable and available in both English and Spanish. The content shall include, but not be limited to, the following:

(1) The procedure to be used to commence proceedings for the collection of compensation for the purposes of this chapter.

(2) A description of the different types of workers’ compensation benefits.

(3) What happens to the claim form after it is filed.

(4) From whom the employee can obtain medical care for the injury.

(5) The role and function of the primary treating physician.

(6) The rights of an employee to select and change the treating physician pursuant to subdivision (e) of Section 3550 and Section 4600.

(7) How to get medical care while the claim is pending.

(8) The protections against discrimination provided pursuant to Section 132a.

(9) The following written statements:

(A) You have a right to disagree with decisions affecting your claim.

(B) To obtain important information about the workers’ compensation claims process and your rights and obligations, go to [applicable Internet Web site(s)], or contact an information and assistance (I&A) officer of the state Division of Workers’ Compensation. You can also hear recorded information and a list of local I&A offices by calling [applicable information and assistance telephone number(s)].

(C) You can consult an attorney. Most attorneys offer one free consultation. If you decide to hire an attorney, his or her fee will be taken out of some of your benefits. For names of workers’ compensation attorneys, call the State Bar of California at [telephone number of the State Bar of California’s legal specialization program, or its equivalent].

(c) The completed claim form shall be filed with the employer by the injured employee, or, in the case of death, by a dependent of the injured employee, or by an agent of the employee or dependent. Except as provided in subdivision (d), a claim form is deemed filed when it is personally delivered to the employer or received by the employer by first-class or certified mail. A dated copy of the completed form shall be provided by the employer to the employer’s insurer and to the employee, dependent, or agent who filed the claim form.

(d) 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, or prior to the injured employee’s request for a medical evaluation under Section 4060, 4061, or 4062. Filing of the claim form with the employer shall toll, for injuries occurring on or after January 1, 1994, the time limitations set forth in Sections 5405 and 5406 until the claim is denied by the employer or the injury becomes presumptively compensable pursuant to Section 5402. For purposes of this subdivision, a claim form is deemed filed when it is personally delivered to the employer or mailed to the employer by first-class or certified mail.

(Amended by Stats. 2011, Ch. 544, Sec. 6. Effective January 1, 2012.)

5401.7.
  

The claim form shall contain, prominently stated, the following statement:

“Any person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying workers’ compensation benefits or payments is guilty of a felony.”

The statements required to be printed or displayed pursuant to Sections 1871.2 and 1879.2 of the Insurance Code may, but are not required to, appear on the claim form.

(Amended by Stats. 1997, Ch. 346, Sec. 4. Effective January 1, 1998.)

5402.
  

(a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.

(b) 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. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.

(c) 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).

(d) Treatment provided under subdivision (c) shall not give rise to a presumption of liability on the part of the employer.

(Amended by Stats. 2012, Ch. 363, Sec. 79. Effective January 1, 2013.)

5403.
  

The failure to give notice under section 5400, or any defect or inaccuracy in a notice is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.

(Enacted by Stats. 1937, Ch. 90.)

5404.
  

Unless compensation is paid within the time limited in this chapter for the institution of proceedings for its collection, the right to institute such proceedings is barred. The timely filing of an application with the appeals board by any party in interest for any part of the compensation defined by Section 3207 renders this chapter inoperative as to all further claims by such party against the defendants therein named for compensation arising from that injury, and the right to present such further claims is governed by Sections 5803 to 5805, inclusive.

(Amended by Stats. 1965, Ch. 1513.)

5404.5.
  

(a) Where a claim form has been filed prior to January 1, 1994, and where the claim is denied by the employer, the claim may be dismissed if there has been no activity for the previous 180 days and if the claims adjuster has served notice pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of the Code of Civil Procedure. The notice shall specify that the claim will be dismissed by operation of law unless an application for adjudication of the claim is filed within 180 days of service of the notice.

(b) Where a claim form has been filed prior to January 1, 1994, and where benefits have been furnished by the employer, the claim may be dismissed if there has been no activity for the previous 180 days and if the claims adjuster has served notice pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of the Code of Civil Procedure. The notice shall specify that the claim will be dismissed by operation of law unless an application for adjudication of the claim is filed within five years of the date of injury or within one year of the last furnishing of benefits, whichever is later.

(c) The administrative director may adopt rules of practice and procedure consistent with this section.

(d) The provisions of subdivisions (a) and (b) do not limit the jurisdiction of the appeals board.

(e) This section is applicable to injuries occurring before January 1, 1994.

(Amended by Stats. 1993, Ch. 1242, Sec. 40. Effective January 1, 1994.)

5405.
  

The period within which proceedings may be commenced for the collection of the benefits provided by Article 2 (commencing with Section 4600) or Article 3 (commencing with Section 4650), or both, of Chapter 2 of Part 2 is one year from any of the following:

(a) The date of injury.

(b) The expiration of any period covered by payment under Article 3 (commencing with Section 4650) of Chapter 2 of Part 2.

(c) The last date on which any benefits provided for in Article 2 (commencing with Section 4600) of Chapter 2 of Part 2 were furnished.

(Amended by Stats. 2002, Ch. 6, Sec. 78. Effective January 1, 2003.)

5406.
  

(a) Except as provided in Section 5406.5, 5406.6, or 5406.7, the period within which may be commenced proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from:

(1) The date of death if death occurs within one year from date of injury.

(2) The date of last furnishing of any benefits under Chapter 2 (commencing with Section 4550) of Part 2, if death occurs more than one year from the date of injury.

(3) The date of death, if death occurs more than one year after the date of injury and compensation benefits have been furnished.

(b) Proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.

(Amended by Stats. 2015, Ch. 303, Sec. 378. Effective January 1, 2016.)

5406.5.
  

In the case of the death of an asbestos worker or firefighter from asbestosis, the period within which proceedings may be commenced for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from the date of death.

(Amended by Stats. 2003, Ch. 831, Sec. 1. Effective January 1, 2004.)

5406.6.
  

(a) In the case of the death of a health care worker, a worker described in Section 3212, or a worker described in Section 830.5 of the Penal Code from an HIV-related disease, the period within which proceedings may be commenced for the collection of benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 is one year from the date of death, providing that one or more of the following events has occurred:

(1) A report of the injury or exposure was made to the employer or to a governmental agency authorized to administer industrial injury claims, within one year of the date of the injury.

(2) The worker has complied with the notice provisions of this chapter and the claim has not been finally determined to be noncompensable.

(3) The employer provided, or was ordered to provide, workers’ compensation benefits for the injury prior to the date of death.

(b) For the purposes of this section, “health care worker” means an employee who has direct contact, in the course of his or her employment, with blood or other bodily fluids contaminated with blood, or with other bodily fluids identified by the Division of Occupational Safety and Health as capable of transmitting HIV, who is either (1) any person who is an employee of a provider of health care, as defined in Section 56.05 of the Civil Code, including, but not limited to, a registered nurse, licensed vocational nurse, certified nurse aide, clinical laboratory technologist, dental hygienist, physician, janitor, or housekeeping worker, or (2) an employee who provides direct patient care.

(Amended by Stats. 2013, Ch. 444, Sec. 21. Effective January 1, 2014.)

5406.7.
  

(a) In addition to the timelines established pursuant to Section 5406, proceedings for the collection of the benefits provided by Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 may be commenced after 240 weeks from the date of injury and no later than 420 weeks from the date of injury, but in no event more than one year after the date of death, if all of the following criteria are met:

(1) The proceedings are brought for the collection of benefits by, or on behalf of, a person who was a dependent on the date of death. The extent of dependency shall be determined in accordance with the facts as they existed at the time of death of the employee.

(2) The injury causing death is one of the following:

(A) An injury as defined in Section 3212.1 to a person described in Section 3212.1.

(B) An injury as defined in Section 3212.6 to a person described in Section 3212.6.

(C) An injury as defined in Section 3212.8 to a person described in Section 3212.8.

(3) The date of injury is during the person’s active service in applicable capacities described in Section 3212.1, 3212.6, or 3212.8.

(b) This section does not apply to claims for the collection of benefits pursuant to Article 4 (commencing with Section 4700) of Chapter 2 of Part 2 that have already been adjudicated, or otherwise finalized, or for which the commencement period lapsed on or before December 31, 2014.

(c) No dependency death benefit shall be payable pursuant to proceedings commenced more than 240 weeks from the date of injury unless either no proceedings were commenced within 240 weeks from the date of injury, or, if proceedings were commenced within that period, it has been finally determined that no person is entitled to dependency death benefits pursuant to the proceedings that were commenced within that period.

(d) This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.

(Added by Stats. 2014, Ch. 15, Sec. 3. Effective January 1, 2015. Repealed as of January 1, 2019, by its own provisions.)

5407.
  

The period within which may be commenced proceedings for the collection of compensation on the ground of serious and willful misconduct of the employer, under provisions of Section 4553, is as follows:

Twelve months from the date of injury. This period shall not be extended by payment of compensation, agreement therefor, or the filing of application for compensation benefits under other provisions of this division.

(Amended by Stats. 1972, Ch. 618.)

5407.5.
  

The period within which may be commenced proceedings for the reduction of compensation on the ground of serious and willful misconduct of the employee, under provisions of Section 4551, is as follows:

Twelve months from the date of injury. However, this limitation shall not apply in any case where the employee has commenced proceedings for the increase of compensation on the ground of serious and willful misconduct of the employer.

(Amended by Stats. 1972, Ch. 618.)

5408.
  

If an injured employee or, in the case of the employee’s death, any of the employee’s dependents, is under 18 years of age or incompetent at any time when any right or privilege accrues to such employee or dependent under this division, a guardian or conservator of the estate appointed by the court, or a guardian ad litem or trustee appointed by the appeals board, may, on behalf of the employee or dependent, claim and exercise any right or privilege with the same force and effect as if no disability existed.

No limitation of time provided by this division shall run against any person under 18 years of age or any incompetent unless and until a guardian or conservator of the estate or trustee is appointed. The appeals board may determine the fact of the minority or incompetency of any injured employee and may appoint a trustee to receive and disburse compensation payments for the benefit of such minor or incompetent and his family.

(Amended by Stats. 1979, Ch. 730.)

5409.
  

The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee. Such defense may be waived. Failure to present such defense prior to the submission of the cause for decision is a sufficient waiver.

(Enacted by Stats. 1937, Ch. 90.)

5410.
  

Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability. The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period. This section does not extend the limitation provided in Section 5407.

(Amended by Stats. 2014, Ch. 217, Sec. 6. Effective January 1, 2015.)

5410.1.
  

Should any party to a proceeding institute proceedings to reduce the amount of permanent disability awarded to an applicant by the appeals board and be unsuccessful in such proceeding, the board may make a finding as to the amount of a reasonable attorney’s fee incurred by the applicant in resisting such proceeding to reduce permanent disability benefits previously awarded by the appeals board and assess the same as costs upon the party instituting the proceeding for the reduction of permanent disability benefits.

(Added by Stats. 1971, Ch. 1558.)

5411.
  

The date of injury, except in cases of occupational disease or cumulative injury, is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed.

(Amended by Stats. 1973, Ch. 1024.)

5412.
  

The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

(Amended by Stats. 1973, Ch. 1024.)

5413.
  

A determination of facts by the appeals board under this chapter has no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.

(Added by Stats. 1995, Ch. 158, Sec. 2. Effective January 1, 1996.)

LABLabor Code - LAB