Under § 409.003 of the Labor Code, filing with the Texas Department of Insurance, Division of Worker’s Compensation (DWC), of a claim must occur not later than one year after the injury or, if the injury is an occupational disease, within one year after the date the employee knew or should have known that the occupational disease was related to the employment.
Section 409.003 reads as follows:
An employee or a person acting on the employee’s behalf shall file with the DWC a claim for compensation for an injury not later than one year after the date on which:
(1) the injury occurred; or
(2) if the injury is an occupational disease, the employee knew or should have known that the disease was related to the employee’s employment.
Moreover, failure of an employee to file a claim within one year will bar that claim unless good cause exists for failure to file a claim in a timely manner or the employer or the employer’s insurance carrier does not contest the claim. (Section 409.004).
Another means by which the claimant can, if he fails to meet the one year filing deadline, circumvent that defense is if the carrier fails within eight days after the employee notifies the employer of an occupational disease or within eight days after an injury which results in the employee’s absence from work for one day or more. (Labor Code Section 409.005 and 409.008). Under Section 409.008, if the employer or carrier fails, neglects, or refuses to file a report of injury (DWC- 1 or E1) then the period for filing of a claim for compensation does not even begin to run against the claim of the injured employee until the date on which the TWCC-1 has been filed. Importantly, according to Texas Workers’ Compensation Appeals Panel Decision No. 94628, where a claimant does not lose time from work, the time for filing a notice of claim with the commission is told. Section 409.005 only requires that the employer file a written report with the commission where an injury results in the absence of the employee from work “for more than one day”.
The purpose of the claim filing requirement is to provide enough information to serve as a basis for proper investigation and determination whether the claim comes under the Workers’ Compensation Act. Where a carrier has agreed to accept liability for reasonable and necessary medical treatment and pays income benefits, the Appeals Panel has held that the failure of the claimant to file a claim within one year will not relieve the carrier of liability. Appeals Panel Decision No. 970068.
A claim for compensation should be filed on a DWC-41 form and should include all of the information listed in Rule 122.2. Rule 122.2 reads as follows:
Rule 122.2: Injured Employee’s Claim for Compensation
(a) An injured employee, or a person acting in the injured employee’s behalf, shall file with the DWC a written claim for compensation within one year after the date of the injury’s occurrence, except as provided in subsection (b) of this rule.
(b) An employee whose injury results from an occupational disease, or a person acting on that employee’s behalf, shall file with the DWC a written claim for compensation within one year after the date the employee know or should have known that the disease was related to the employment.
(c) The claim should be on a form TWCC-41 prescribed by the DWC and should include the following:
(1) the name, address, telephone number (if any), occupation, wage, and social security number of the injured employee;
(2) the length of time the employee worked for the employer prior to the date of injury;
(3) the date, time, and location the injury occurred (or the date the employee knew or should have known that the occupational disease was related to the employment.
(4) a description of the circumstances and nature of the injury;
(5) the names of witnesses (if any);
(6) the name and location of the employer at the time of the injury (or at the time of the last injurious exposure to the hazards of the occupational disease);
(7) the name of the employee’s immediate supervisor;
(8) the name and address of at least one health care provider that has treated the employee for the injury; and
(9) the identity of the person (if any) acting on behalf of the injured employee.
(d) If the injury claimed is an occupational disease, the claim shall list the name and location of the employer at the time of the last injurious exposure to the hazards of the disease if known.
(e) The prescribed form TWCC -41 or other written claim for compensation must be signed by the person filing it.
(f) Failure to file a claim for compensation with the commission no later than one year from the incident shall relieve the employer and the employer’s insurance carrier from liability under the Act unless:
- good cause exists for failure to file a claim in a timely manner; or
- the employer or insurance carrier does not contest the claim.
Texas DWC’s Appeals Panel Decision No. 992486 has stated that although a claim for compensation should be filed on a TWCC-41 and should include all the information listed in Rule 122.2, other documents may constitute a claim. For instance, a TWCC-61 that is signed by a doctor, may be sufficient.
Under Appeals Panel Decision No. 010003, bad advice from an attorney as to the time to file a claim does not constitute good cause on the claimant’s behalf. In that case the claimant pursued his claim in Oklahoma based on the advice of an attorney. The Appeals Panel affirmed findings that good cause did not exist even where the employer failed to advise the claimant of his rights and responsibilities.
Under Appeals Panel Decision No. 000444, in order the tolling provision to apply, knowledge of a specific injury and knowledge that time was lost due to the injury are required. Tolling provision in Rule 409.008 does not apply until the duty to file a TWCC-1 has been met. (See Appeals Panel Decision No. 002758).
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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