Written Denial Need Not Be Sent in 90 Days
- Posted By: Harvey Brown
- January 1, 1995
A recent appellate opinion has given new meaning to the 90-day denial notice. Most people were under the impression the applicant had to receive written denial of the claim by the 90th day of notice.
The case deals with the interpretation of Labor Code Section 5402. This section states in part:
“If liability is not rejected within 90 days… the injury shall be presumed compensable…. The presumption is rebuttable only by evidence discovered subsequent to the 90-day period.” The Court was concerned with what the “…employer must do in order for the liability to be ‘rejected’ within the meaning of Section 5402.”
In this case the denial notice was dated on the 89th day, but not received by the applicant’s attorney until the 96th day. period.
What the Court neglects to inform us in this decision is what will be considered a proper rejection. Whether a simple phone call denying the claim to the applicant or the applicant’s attorney will be left to future decisions. Whether the employer telling the claimant that the injury was not reported and therefore denied, will also be a subject of future decisions. When a medical indicates that there was no industrial injury will be a question of sufficient rejection for the Court to analyze. There are a myriad of possibilities that the imagination can come up with.
The safest course of action is to make sure the denial is timely sent and received. However, if it is not timely, do not automatically give up and presume there is a presumption. Gather the facts. When was there a rejection. Can you prove that a rejection was made within the 90-day period. The Court revised the decision on December 15,1994. They added in Footnote 4 a board panel decision as authority for the present decision.
The Judge at the trial level ruled the applicant had not sustained an injury. The applicant, on appeal, contended that the claim was not rejected within 90 days, so the Board should have admitted only evidence discovered subsequent to the 90 day period. The applicant, further contended, “that all the evidence admitted at trial against him was discovered prior to the expiration of the 90- day period and should have been excluded.” The Court focused its’ decision on the distinction between the rejection of a claim and the giving of notice (emphasis added) to the claimant that there has been a rejection.
The Court stated”…its the rejection which must occur within the 90-day period, not the notice of that rejection.” The court further clarifies that notice of the rejection does not have to be sent within 90 days, even if this is dictum.
What does all this mean? The Court specifically states that the wise practitioner will still take all steps necessary to ensure that the claimant is notified of the rejection of the claim of injury within the 90-day period. However, if one fails to give written notice to the claimant within that time frame, all hope is not lost. One still may be able to prove that a proper rejection was made within the 90-day period.
The Court revised the decision on December 15,1994. They added in Footnote 4 a board panel decision as authority for the present decision.
Case: Rodriquez V. W.C.A.B