What the panel ordered
Findings and Order of August 5, 2021, affirmed except that the finding sustaining applicant's objection to QME reporting is stricken
Petition for reconsideration granted to further study factual and legal issues; WCJ Findings and Order of August 5, 2021, under review
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.
The presumption of compensability was affirmed because the defendant failed to rebut it with timely evidence, and the QME reports were excluded from evidence due to procedural issues.
From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial injury on August 18, 2017, and that the injury was presumed industrial pursuant to Labor Code1 section 5402(b). The WCJ further sustained applicant's objection to the QME's reporting and excluded it from coming into evidence.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant filed a DWC-1 claim form on September 18, 2017, triggering the 90-day presumption period.
Favours Applicant prevailed
This triggered the presumption of compensability under Labor Code Section 5402(b).
From the decision · page 2On September 18, 2017, Applicant reported her injury to her employer via a DWC-1 form. Human resources technician for the employer, Lilian E. Parker, signed the DWC-1 claim form on the same date. (See DWC-1 form dated September 18, 2017 Applicant Exhibit 1). After reporting her injury, Applicant presented to occupational medicine provider U.S. Health Works. (U.S. Heath Works report dated September 18, 2017, Applicant Exhibit 2).
Defendant failed to present evidence that the QME opinion could not have been obtained within 90 days of claim form receipt.
Favours Applicant prevailed
Without such evidence, the presumption of compensability could not be rebutted.
From the decision · page 5The admissibility of the QME's reporting is irrelevant as defendant failed to present any evidence that it could not have obtained the QME's opinion within 90 days of receipt of the claim form. No testimony was offered. No exhibits address defendant's efforts to timely investigate the claim within the 90-day period. Given that defendant failed to show that the QME reports could not have been otherwise obtained within the 90-day period, they cannot be used to rebut the presumption of compensability.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
QME reports were objected to and excluded from evidence; defendant argued they rebut the presumption of compensability but failed to prove timely investigation within 90 days.
The QME reports were excluded from evidence due to procedural objections and lack of timely rebuttal evidence by defendant.
From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial injury on August 18, 2017, and that the injury was presumed industrial pursuant to Labor Code1 section 5402(b). The WCJ further sustained applicant's objection to the QME's reporting and excluded it from coming into evidence.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 5402(b)
If liability is not rejected within 90 days after the date the claim form is filed, the injury shall be presumed compensable under Labor Code Section 5402(b).
The presumption of compensability was applied and affirmed because the defendant did not timely reject liability within 90 days.
From the decision · page 4Section 5402 provides: "(b) If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." (§ 5402(b) (emphasis added).) A `claim form' is defined as "[t]he official Division of Workers' Compensation DWC Form 1 Employee's Claim for Workers' Compensation Benefits" as established under Administrative Director Rule 10139. (Cal. Code Regs., tit. 8, § 10136, 10139.) The filing of a `claim form' triggers the 90-day provision of section 5402. (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24.)
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to present evidence that QME opinion could not have been obtained within 90 days of claim form receipt
From the decision · page 5The admissibility of the QME's reporting is irrelevant as defendant failed to present any evidence that it could not have obtained the QME's opinion within 90 days of receipt of the claim form. No testimony was offered. No exhibits address defendant's efforts to timely investigate the claim within the 90-day period. Given that defendant failed to show that the QME reports could not have been otherwise obtained within the 90-day period, they cannot be used to rebut the presumption of compensability.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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