90 Day Denial May Be Rebutted With Reasonable Diligence

The applicant filed a workers’ compensation claim form on

November 27, 2000. A delay later issued on December 21, 2000. This is past the 14 day time limit. On February 26, 2001 the adjusted decided to deny the claim. The applicant received the denial on February 27, 2001. This was 92 days after the claim form was received.

The case was heard by a Workers’ Compensation Judge (WCJ) that first determined that the denial was timely (within 90days). Therefore, Labor Code section 5402, which presumes compensability, did not apply because the denial was timely.

The WCJ found the psychiatric case was not compensable because of a good faith personnel action under Labor Code section 3208.3.

The applicant filed a petition for reconsideration and the WCJ recalculated the 90 days and found the denial untimely. The WCJ, concluded, however, that the medical evidence rebutted the presumption. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the medical evidence could not have been reasonably obtained in the 90 days.

The appellate court on review indicated that medical evidence should be obtained within 90 days. The court indicated that the adjusters testimony that the adjuster could not obtain a medical within 90 days was sufficient. The doctors were too busy to set an appointment within the 90 days.

The case is also interesting to read for the determination of what qualifies as a “good faith personnel” action. In this case two-thirds of the applicants psychological injury was caused by “good faith personnel actions”.

Therefore, the applicant did not meet the standard for a psychiatric injury.

Case: Watts v. WCAB
This is a non published case.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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