Responding to a Defective PFB Part 1: Incorrect Dates of Accident

13 Jun, 2019 Bruce Burk


Sarasota, FL ( - If you’re an adjuster, then you have probably found yourself trying to respond to a Petition for Benefits that just looks like a mess. Petitions are often filed in early stages of litigation where there is little or no information available on the Claimant’s side. This can cause issues with the employer/carrier’s ability to investigate and respond to the benefits requested. This article is the first part in a series where I will discuss how to deal with defects in Petitions.

One issue that is often encountered is a Petition for Benefits which contains an incorrect date of accident. Let’s assume a scenario where a Petition is filed that has a date of accident that occurred with the course and scope of employment but the date of accident in the Petition is 11 days after when it actually occurred. In this instance, one option is to deny benefits because there was no accident within the course and scope of employment on the alleged date.

Other issues arise when you have dates of accident that conflict with the claimant’s employment with the insured employer. In the instance where the date of accident falls a few days after the claimant was terminated, there would likely be a clear no employer/employee relationship defense. This can be resolved by a Motion for Summary Order. Here, you would need an affidavit signed by an employer representative to support the motion.

Another scenario can arise when the Petition for Benefits lists an accident date that conflicts with the workers’ compensation insurance coverage of the employer. For instance, if the date of the industrial accident is 20 days after the employer’s insurance coverage terminated. This instance could involve a response indicating total denial by the carrier. This issue can also be dealt with via summary order including an affidavit from an adjuster stating when the insurance coverage terminated. In this situation, the employer may still have liability in the case.

A Petition can also create issues with the date of accident if the mechanism of injury is based on repetitive trauma. The date of accident in these cases is often related to when the claimant was exposed to the alleged mechanism of injury and if the claimant has continued to work under the conditions that could complicate things. These cases need special care and investigation when analyzing either a no accident defense or late notice defense.

Incorrect dates of accident can also cause problems related to the viability of a statute of limitations defense. The timeline for statute of limitations varies from state to state. Careful analysis is needed with respect to the docket regarding pending claims and the timeline of when the claimant received any medical or indemnity benefits before considering this defense.

Naturally, what often occurs is there are subsequent Petitions or attempts to amend the prior Petition to change the incorrect date of accident. If the file is being handled as being compensable then changing the date of accident may not be an issue. However, if there are disputes regarding entitlement to benefits, agreeing to amend the Petition may not be in the employer/carrier’s interest.


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    About The Author

    • Bruce Burk

      Bruce Burk is an experienced workers' compensation defense attorney located in South Florida. He has also worked in civil litigation and criminal defense, handling more than 40 trials, both jury and non-jury. Burk received his law degree from the University of South Carolina and his bachelor's degree from Palm Beach Atlantic University.

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