No Presumption On Failure To Deny Psyche Case

A recent appellate decision has indicated that even though the carrier failed to deny a psychiatric case within the 90 days as required by Labor Code section 5402, the case can still be found noncompensable.

The applicant filed a claim against her employer for psychiatric injury one and one-half months after she was employed as a vocational nurse. The employer arranged for treatment and paid indemnity within the 90 day period set forth in section 5402. Over a year later the issue of Labor Code section 3208.3 (d) was alleged. This section indicates that for a psychiatric injury to be compensable the injured employee must be employed for more than 6 months, unless the injury is caused by a sudden and extraordinary employment incident.

The applicant contended at trial that section 5402 precluded defendants from raising 3208.3. The workers’ compensation judge (WCJ) reasoned that 3208.3 (d) was an exception to 5402 because the first phrase of 3208.3 states: “Notwithstanding any other provision of this division…”. On Petition For Reconsideration the Appeals Board agreed with the WCJ that 3208.3 (d) was an exception to 5402.

The Court of Appeals looked at SCIF V. WCAB (WELCHER) which we discussed in a previous newsletter.  However, that case involved medicals that could have been obtained within 90 days. Therefore, in that case the presumption of 5402 was upheld. This court specifically stated that “Welcher did not involve the narrow exception created by section 3208.3, subdivision (d). This court did intimate that the applicant could still try to prove her case under the sudden and extraordinary employment condition.  This case is significant in that it pokes another hole in the 5402 presumption.  As you may recall from a previous newsletter there is the additional case of Rodriguez v. WCAB which gave an exception to the 5402 presumption. In that case one would have to show mat, the case was rejected within the 90 days. This may be a difficult task that would ultimately include testimony as to the fact mat the claim was rejected within 90 days, even though no formal denial was sent to the applicant.

However, the lesson to be learned is that even though a denial may not have been sent out timely there may be other arguments that the defendant can raise in a given case, depending upon the facts, to defeat the imposition of the presumption of 5402. The proper thing to do if the 90 day period has run and you feel that you need to deny the case is see if mere is anyway to do so under the given facts of your case if you are the defendant.

Case: James V. W.C.A.B.

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

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