Workers’ Compensation Appeals Board holds that a good faith personnel action is exempt from the 90 day limit

This is a very significant case for workers’ compensation principles.

The applicant alleged a cumulative trauma to his psyche, brain, head and headaches. The parties stipulated that the defendant did not deny liability within 90 days pursuant to Labor Code section 5402 (b). The defendant contended that a good faith personnel action under Labor Code section 3208.3 (h) fell outside the scope of the 90 day limit pursuant to 5402 (b).

The Workers’ Compensation Judge (WCJ) ruled that the good faith personnel action was subject to 5402 (b) and could only be established by evidence that could have been obtained within 90 days of the filing.

Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ decision. The WCAB looked at the language of both statutes.  It also reviewed the case of James v. WCAB. The Board determined that a good faith personnel defense obtained more than 90 days after the receipt of the claim form was permissible even if that evidence was obtainable with reasonable diligence within the 90 days of receipt of the claim form.

The Board looked at the language that indicated a higher threshold for compensability under Labor Code section 3208.3. This higher level of compensability applied not withstanding any other provisions of the code including the 90 day provision of Labor Code 5402 (b). Therefore, the 90 day was not applicable.


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

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