ADJ13449484 — California WCAB decision

ADJ13449484 · December 14, 2022

The WCAB granted defendant's petition for reconsideration, rescinded the September 22, 2022 Finding and Order, and found that the applicant's injury is not presumed compensable under Labor Code section 5402. All other issues were deferred to the trial level.

Issues decided

Medical opinions weighed

Authorities named

District office

Stockton

What the panel ordered

Defendant sought reconsideration of the September 29, 2022 Findings and Order by the WCJ, which found the claim presumed compensable under Labor Code section 5402. The WCAB granted reconsideration and reviewed the matter.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEDefendant prevailedlow back · spine

The employer rejected the claim within the 90-day period as evidenced by the EDD form and testimony, so the presumption of compensability does not apply.

From the decision · page 3In this case, Inverse Solutions did not successfully contact their insurer prior to the expiration of the 90-day period from the time the claim form was filed. Inverse Solutions was the sole defendant named on the initial application. There is evidence that Inverse Solutions rejected the claim within 90 days. Josh Jorden's completion of the EDD form indicating that the claim had been denied together with his testimony that he believed that he denied the claim is sufficient to find that the employer rejected the claim within the 90-day period.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5402

The presumption of compensability applies if the employer does not reject the claim within 90 days after the claim form is filed.

From the decision · page 2Turning to the merits of defendant's petition, we begin with Section 5402 which provides in relevant part as follows:

State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Welcher) (1995) 37 Cal. App. 4th 675

Welcher

The statute's purpose is to expedite claims by limiting employer investigation to 90 days, after which a presumption of compensability attaches.

From the decision · page 3The section5402(b) presumption was discussed at length in State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Welcher) (1995) 37 Cal. App. 4th 675 [43 Cal. Rptr. 2d 660, 60 Cal. Comp. Cases 717]. In Welcher, the court explained that the primary purpose of the statute was "to expedite the entire claims process in workers' compensation by limiting the time during which investigation by the employer of a claim by an injured worker could be undertaken-90 days- without being penalized for delay. The 'penalty' provided for delay was that a rebuttable presumption of compensability would attach to the claim." (Welcher, 37 Cal. App. 4th at p. 682.)

Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425

Rodriguez v. Workers' Comp. Appeals Bd.

Rejection of liability must occur within 90 days, but notice to applicant is not required within that period.

From the decision · page 3Given this context, it follows that, unlike other provisions of the Labor Code, such as statutes of limitations, notice of rejection is not required for a defendant to effectively "reject" the claim within the meaning of the statute. "... it is the rejection [of liability] which must occur within the 90-day period, not the receipt of notice of that rejection." (Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425, 1433 [59 Cal.Comp.Cases 857].) In Rodriguez, the Court of Appeal relied on evidence from within the 90-day period, including letters and pleadings, to find that the employer made a determination to deny the claim within 90 days.

ADJ13449484 · December 14, 2022

What the panel ordered

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