Generally, an IE has one year to file a claim for compensation with DWC unless good cause exists or the employer or IC does not contest the claim. Texas Labor Code (TLC) Sections 409.003 and 409.004; 28 Texas Administrative Code (TAC) Sections 122.2 and 122.100. A claim for compensation does not necessarily have to be on a DWC Form-041, Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease, if the claim contains the information listed in 28 TAC Section 122.2(c). APD 190915.

Typically, in a death benefits case, legal beneficiaries have one year to file a claim for death benefits unless good cause exists or the legal beneficiary is a minor or legally incompetent. TLC Section 409.007; 28 TAC Section 122.100.

If an IE or legal beneficiary fails to file a claim within one year and no exception applies, the employer and IC will be relieved from liability. TLC Sections 409.004 and 409.007. 28 TAC Section 122.2(c) lists the requirements to be included in a claim for a specific injury or an occupational disease, while 28 TAC Section 122.100 (b) and (c) list requirements for a death benefits claim. Information provided in a claim may be amended at any time until DWC has disposed of the claim. APD 950881. Claims are not regarded as pleadings and are not guided by strict rules of formality. Booth v. Texas Employer's Ins. Ass'n, 132 Tex. 237, 123 S.W. 2d 322 (1938); Select Ins. Co. v. Patton, 506 S.W.2d 677 (Tex. Civ. App.-Amarillo 1974, writ ref'd n.r.e.).

Filing a Claim for Death Benefits.

[Cross reference: Other Death Benefits Issues (D00)]

Legal beneficiaries other than the Subsequent Injury Fund (SIF) must file a written claim with DWC within one year after the date of the deceased employee's death; failure to timely file a claim as required will bar the claim unless the beneficiary is a minor or legally incompetent. TLC Section 409.007 and 28 TAC Section 122.100(e); APD 042090. An untimely claim for death benefits may be found timely if good cause exists for the late filing. 28 TAC Section 122.100(e)(2); APD 042090. Each person wishing to receive death benefits as a legal beneficiary must file a separate claim for death benefits unless the claim specifically includes other people. 28 TAC Section 122.100(d).

Filing a Claim for an Occupational Disease.

[Cross reference: Date of Injury (C05)]

An IE or a person acting on the IE's behalf must file a written claim within one year after the date the IE knew or should have known that the disease was related to the employment. TLC Section 409.003(2); 28 TAC Section 122.2(b); APD 002758. An untimely claim may be found timely if good cause exists for the late filing or the employer or the IC does not contest the claim. TLC Section 409.004; 28 TAC Section 122.2(d); APD 002758.

Filing a Claim for a Specific Injury.

An IE or a person acting on the IE's behalf must file a written claim within one year after the date the injury occurred. TLC Section 409.003; 28 TAC Section 122.2(a); APD 031671. An untimely claim may be found timely if good cause exists for the late filing or the employer or the IC does not contest the claim. TLC Section 409.004; 28 TAC Section 122.2(d); APD 981824.

Good Cause.

The test used to determine whether an IE had good cause for not timely filing a claim is whether the IE acted as a reasonably prudent person would have acted under the same or similar circumstances. APD 960418. Good cause is a question of fact for the ALJ to resolve. APD 94792. The AP reviews an ALJ's determination of whether good cause exists under an abuse of discretion standard. APD 040218. Good cause must continue to the date the IE actually files the claim (Lee v. Houston Fire & Casualty Ins. Co., 530 S.W.2d 294 (Tex 1975); APD 94975); however, an IE is allowed a reasonable time to file the claim after good cause ends (Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948); APD 94975). Failure to file the claim with due diligence may result in the denial of the claim.

Good Cause Found.

The deceased employee sustained a compensable fatal accident. The claimant, the employee's wife, consulted an attorney to pursue a gross negligence and a third-party claim but not a workers' compensation claim. The IC's adjuster assured the claimant that she would not need to hire an attorney because the adjuster would look after the claimant and the deceased employee's children. The IC began paying the claimant benefits beginning the month after the injury. TWCC (now DWC) received a claim for death benefits more than a year after the employee's death. The ALJ determined the claimant had good cause for the late filing. The AP affirmed, stating the claimant had good cause based on her good faith reliance on the IC's adjuster's representations and the fact that the IC's prompt initiation of benefits indicated that the claim had been filed. APD 941246.

The IE injured his back and notified the employer's secretary of his injury. Later, the IE notified the secretary that he needed to see a doctor because his back was still hurting him. The secretary told the IE to speak with an employee who was handling his workers' compensation claim. The IE asked this employee if he needed to fill out any paperwork, but the employee told him no, and that the employer had taken care of everything for the IE. The IE's medical bills were paid until nearly two years after the injury, although it was not determined at the hearing who had paid the bills. The IE contacted the IC and discovered a problem with his case. The IE immediately called TWCC, and was told he needed to fill out a form. TWCC received this form constituting the IE's written claim approximately a month after his bills stopped being paid. The ALJ determined the IE's reliance on the employee's representations that the employer had taken care of his claim for him constituted good cause. The AP affirmed, stating that a claimant's reliance upon the representations by an employer that it had filed a claim may constitute good cause. APD 94493.

No Good Cause Found.

The IE was injured when a wall clock fell on her upper back. The IE sustained a bruise and muscle spasms, but she believed the injury was trivial. Later, her symptoms got worse and she scheduled an appointment with a chiropractor over a year after the date of injury. The chiropractor diagnosed a dislocated rib, and told the IE that stress had caused her muscles to tighten and irritate the rib, and that the wall clock had probably knocked the rib out of place. The IE reported the doctor's opinion to her supervisor and then contacted the employer's home office. The day after the doctor's appointment, the home office sent report forms for the IE to fill out and return, which she did. Approximately two months after the doctor's appointment, the IC submitted a Payment of Compensation or Notice of Refused or Disputed Claim, TWCC-21, disputing the claim based on the IE's failure to timely file a claim within one year of the date of injury, and refused to pay for any treatment. Approximately a week after the IC submitted the TWCC-21, the IE called TWCC to determine why the claim had been denied. She was notified the claim had been denied because she failed to file the claim within one year of the date of injury. The IE asked for a BRC, and in a letter dated the day after she called TWCC, she received information from TWCC advising her to "[b]e sure to file a claim with the Commission within one year of your injury, using Form TWCC-41. IF YOU HAVE ALREADY FILED FORM TWCC-41, PLEASE DO NOT FILE IT AGAIN." A TWCC-41 was included with the letter. The IE did not fill out the TWCC-41 because she believed she had a year from the date she knew her injury was work-related, not the date of injury itself (which was a year prior to the date she knew her injury was work-related); she was busy at work with the approaching holiday season; she was not aware that the IC and TWCC were separate entities; she did not know whether or not she had already filed a TWCC-41 and did not want to submit a duplicate; and because she wanted to complete the form at the BRC. TWCC received the form on the date of the BRC, which was over 15 months after her injury. The ALJ determined the IE failed, without good cause, to timely file her claim. The AP affirmed, stating while good cause may exist when an IE trivializes an injury, an IE must file with reasonable promptness once the good cause ends. APD 960418.

The IE, an LVN, injured her back and neck when she turned to catch a medically dependent child. The IE's supervisor originally informed her the employer did not carry workers' compensation insurance. Two years after the injury, the IE reread her employee handbook, contacted an attorney, and had the attorney contact TWCC. The IE spoke with agency representatives two months later and was informed the employer did have insurance in place at the time of her injury. The IE did not file a claim with TWCC until the next month. The ALJ determined the IE did not meet her burden in proving she acted as a reasonably prudent person would have acted under the same or similar circumstances. The AP affirmed, stating even if the IE's reliance on the employer's representation that the employer did not have workers' compensation insurance constituted good cause until the time two years post-injury when the IE reread the employee handbook, contacted an attorney, and had the attorney contact TWCC (see APD 033132, where the AP found that an employer's similar representation provided the IE with good cause), such good cause did not continue up until the time she filed her claim. APD 950885.

Timeliness.

For a claim to be considered timely DWC must receive it within one year from the date of injury. APD 951704. 28 TAC Sections 102.3 (a)(3) and 102.3(e) discuss filing extensions when the last day of filing is a Saturday, Sunday, or when DWC is not open for business.

Tolling.

The employer is required to report to the IC the IE's reported injuries that result in absence from work more than one day or for an occupational disease. [Cross Reference: Compensability/Occupational Disease (C14)]. TLC Section 409.005. If the employer fails to deliver to the IC a written report of the injury or the IC fails to file the report of the injury on behalf of the employer according to TLC Section 409.005, the one-year period for filing the claim for compensation under TLC Sections 409.003 and 409.007 is tolled, and the one-year filing period does not begin until the day the injuries are reported as required by TLC Section 409.005. TLC Section 409.008; APD 980792.

In the case of co-employers, notice of the injury or illness given to DWC by one employer is sufficient for both employers and there is no tolling of the time period for the IE to file a claim. APD 971434.

One-Year Filing Period not Tolled.

The employer had notice of the IE’s injury, from which the IE did not lose time from work. The employer filed a TWCC-1, which was dated over a year post injury, and a copy was sent to the IE. The IC filed a TWCC-21 dated two months after the employer filed its TWCC-1, contesting compensability of the claim on the basis that the IE had not filed a claim within one year of the date of injury. A copy of the TWCC-21 was sent to the IE. The IE filed a TWCC-41 a month later. The ALJ determined the IE failed, without good cause, to file his claim within one year of the date of injury. The AP affirmed. As the IE lost no time from work as a result of the injury, the employer was not required to file a report of injury under TLC Section 409.005. APD 981824.

One-Year Filing Period Tolled.

The IE immediately reported the injury to her supervisor. The IE continued to work full-duty for two weeks after the injury, then missed half a day of work when she went to the doctor. The doctor placed the IE on light duty consisting of four-hour to five-hour workdays. The IE filed her TWCC-41 over a year after the injury. The employer filed the TWCC-1 a month after the IE filed her TWCC-41. The ALJ determined the half-day of missed work coupled with the loss of hours due to the light-duty limitations was sufficient to trigger the employer's duty to report the injury, and therefore found that the IE timely filed her claim because the one-year filing period was extended due to the employer's delay in filing the TWCC-1. The AP affirmed. APD 012742.