004a Timeliness Issues and Claims Handling

TIMELINESS ISSUES UNDER THE ACT

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The claimant must provide notice of any injury or death within thirty (30) days after the date of such injury or death, or 30 days after the employee is aware of the relationship between the injury and death.

Late notice does not bar the claim unless the Employer can show that it has been prejudiced by Claimant’s failure to give timely notice. In establishing “prejudice,” the employer must be able to establish the significance of the late notice.

Simply asserting that late notice prevents timely investigation is not enough to show prejudice.

The claimant enjoys the benefit of the Section 20(b) presumption that “sufficient notice of such claim has been given."

TIME TO FILE A CLAIM

Section 13(a) states that the right to compensation for disability or death shall be barred unless the claim is filed within one year from the time the claimant nude, or should have nude, of the relationship between the injury or death and the employment.

What Section 13(a) really says

Traumatic Injuries

Section 13(a): Except as otherwise provided in this section, the right to compensation for disability or death shall be barred unless the claim is filed within one year from the time the claimant or the beneficiary becomes aware, or in the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment

If voluntary payments have been made, the claim may be filed within one year of the date of the last payment of compensation. Payment of medical benefits, however, does not toll the running of the statute of limitations.

OCCUPATIONAL CLAIMS

Section 13(b)(2) - a claim for death or disability due to an occupational disease which does not immediately result in disability or death is timely if filed within two years after the claimant becomes aware, or in the exercise of reasonable diligence, or by reason of medical advice, should have been aware of the relationship between the employment, the disease, and the death or disability, or within one year from the date of the last payment of compensation, whichever is later.

For purposes of Section 13, hearing loss claims are treated as a traumatic injury subject to the one-year statute of limitations and not the more generous two-year statute of limitation for occupational disease claims

In an occupational disease claim, the filing period does not begin to run until the employee is disabled, or in the case of a retired employee, until a permanent impairment exists.

What Constitutes a Claim?

OWCP has specifically designed a form on which an employee should file a claim (Form LS-203), but there is no formal requirement that the form be used. Virtually any writing from which an inference may reasonably be drawn that a claim for compensation is being made will be sufficient to constitute a claim

The statute of limitations may be tolled for a number of reasons:

• 1) minors and legal incompetents;
• 2) failure to file the Employer’s First Report of Injury;
• 3) denial of a claim under the Jones Act;
• 4) payment of state workers’ compensation
• 5) a de minimis award.

Dirty Car Art by

Scott Wade

www.dirtycarart.com

NOTICE

but remember... failure to file the LS-202, Employer's First Report of Injury, will also extend the time in which a claim can be filed..