By: Natalee Fillinger, J.D.
Kovacs v. Department of Labor & Industries
In a recently published Washington Court of Appeals decision, the court clarified the deadline to file a workers’ compensation claim.
Workers have one year to file an injury claim; not one year and a day. The case, which was decided on July 21, 2015, involved a claimant who was injured on September 29, 2010, and filed his workers’ compensation benefits application on September 29, 2011. The court said that the claimant was a day late in filing his application: in effect, his application had to be filed on or before September 28, 2011, to be timely.
However, it is important to remember: only injury claims have a one year timeline. There is a two year deadline for workers with occupational disease claims to file their claim. Occupational diseases are those medical conditions that develop slowly over years, like back problems from strenuous labor.
Birrueta v. Department of Labor & Industries
In another recent case in the Washington Court of Appeals, a claimant was severely injured and taken to the hospital, where he lost consciousness for a brief period of time. During this time, an application for workers’ compensation benefits was completed on his behalf. The worker later testified that although he had signed it, the rest of the form was not in his handwriting, and he did not know who had completed it. The worker also indicated that he could neither read nor write in English.
The application indicated that the claimant was married with a child. In truth, the wife and child listed on the application were actually the claimant’s sister and niece with whom he lived. The Department of Labor & Industries (the Department) issued a wage order that included this incorrect information. The inclusion of a spouse and child in the wage calculation increased the amount of the claimant’s time loss compensation checks.
About seven years after his injury, the claimant was placed on a pension and was sent information asking about his marital status. At the time of his pension, the claimant indicated that he was single at the time of injury.
When there is no specific evidence that a claimant is attempting to engage in fraud or willful misrepresentation, the Department will typically deem the miscalculation an “adjudicator error.” With an adjudicator error, future payments are corrected and the prior one year of over-payments to the worker are recovered. However, this court rejected
The court found that the Department did not have the legal authority to assess the claimant for the overpayment or to change his marital status for compensation purposes, because the error was a mistake by the claimant, not the adjudicator, and there was a legally binding final order setting the wage. There was no legal authority to reach back and correct a final order, short of a true adjudicator error or fraud perpetrated by the claimant, meaning the claimant did not have to repay the overpayment in this case.
Moral of the story: check those wage orders for accuracy when they are issued while there is still time to appeal the case.