In the mood for a crackpot legal theory having to do with LC 5403?  Take this one with a grain of salt folks, this one is for the truly desperate.

There are a variety of reasons why an applicant might not report an injury once it occurs.  The worker might be afraid of the consequences of reporting the injury (work restrictions leading to unemployment), the worker might think that the effects of the injury might go away, or in a majority of cases (if you’re a cynic) the injury never happened, and the claim is in response to some adverse job event (reprimand, firing, etc.)

Well, Labor Code section 5400 requires reporting of an injury to the employer within 30 days of its occurrence, and of course, this strict rule is rendered toothless by Labor Code section 5403, which requires the employer to have suffered prejudice as a result of the delayed notice.

Recently, the workers’ compensation Judge in the matter of Edmonson v. City of Los Angeles, wrote in his report and recommendation on petition for reconsideration that the defendant, for the first time in its petition, “asserts the issue of prejudicial lack of notice, a defense which [the] WCJ has not seen asserted since the 1970’s … That is an affirmative defense, and the petitioner would have had the burden of proving it, had it been raised at trial.”

Now, dear readers, consider this – if the defendant bears the burden of proving that “the employer was not in fact misled or prejudiced by such failure” to report the injury in a timely and accurate manner, how is one to take advantage of this law?  Well, not very often, as the WCJ in Edmonson noted.

But, for some reason, the law remains on the books reform after reform after reform.  Why leave it there at all, when legislature after legislature has taken liberties with every other aspect of the Labor Code?

The law is still on the books, and should be explored under the right facts.  Think of the benefits of diligently and thoroughly investigating an injury which is reported as soon as it happened.  Witnesses can be canvassed and interviewed; recorded statements can be taken while they are still fresh in the witnesses’ recollection; and the injured worker can be given proper medical care and job duties that will prevent further injury or aggravation.

Now, put that investigation on ice for 31 days.  Perhaps some of the witnesses (likely to be other employees) are not employees today.  Perhaps they have moved away or left the employ of the defendant on bad terms.  Perhaps their memories aren’t that great.  The injured worker thought he could just “tough it out” and ended up hurting himself more and more and more, so instead of a simple cut, you have an infection; instead of a sore back, you have a disc protrusion; instead of broken pinky toe, you have hip and spine and psyche and sleep and sexual dysfunction and bilateral lower extremities.

And here’s another thought – look closely at the language of section 5403: “the failure to give notice under section 5400 … 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.”

Can we interpret this section to mean that a claim can be denied based on Labor Code section 5403 until the fact is established in a proceeding that the employer was not misled or prejudiced?

Case law on this section is pretty slim pickings, and rightly so – most real injuries are very visible, and the employer almost immediately has some form of notice (actual or constructive).  A foreman seeing the injured worker in pain is probably enough.   But in those rare cases where the employee conceals the injury until day 31 or later, perhaps the defense should be explored.

Have you had any luck with this? Please let me know…