What the panel ordered
The WCAB granted the petition for reconsideration, rescinded the WCJ's Findings and Order of June 10, 2024, and returned the matter to the trial level for further proceedings and decision.
Applicant sought reconsideration of the WCJ's Findings and Order of June 10, 2024, which denied the claim for industrial injury; the WCJ filed a Report and Recommendation on Petition for Reconsideration; the WCAB granted reconsideration and rescinded the WCJ's decision, returning the matter to the trial level for further proceedings.
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 WCAB found that the WCJ erred in finding no industrial injury and in rejecting the 5402(b) presumption without sufficient evidence of timely denial; the case was remanded for further development of the record on these issues.
From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Order of June 10, 2024, wherein it was found that while employed during a cumulative period ending on August 10, 2019 as a construction or maintenance worker, applicant did not sustain industrial injury as alleged to the lumbar spine, thoracic spine, cervical spine, shoulders, right foot, or in the form of headaches. The WCJ also found that applicant was not entitled to a presumption of injury pursuant to Labor Code section 5402(b). It was thus ordered that applicant take nothing by way of his workers' compensation claim.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's former counsel mailed a DWC-1 claim form to employer on August 28, 2019, which was not signed by applicant but accompanied by a signed letter from counsel's legal assistant.
Favours Applicant prevailed
This established substantial compliance with Labor Code sections 5401 and 5402, triggering the requirement for timely denial to avoid presumption.
From the decision · page 4In this matter, applicant presented evidence that his former counsel mailed a DWC-1 claim form to the employer on August 28, 2019. The DWC-1 claim form was not signed by the employee, although an accompanying letter was signed by a legal assistant of applicant's former counsel. The WCJ found that the DWC-1 claim form was invalid because it was not signed by the applicant.
There was insufficient evidence of when employer denied liability; employer testimony and email evidence were inconclusive on timing of denial.
Favours Applicant prevailed
Without clear evidence of timely denial, the presumption of compensability under Labor Code section 5402(b) could not be rebutted, favoring applicant's claim.
From the decision · page 4The WCJ in this case found that any claim form was timely rejected. The WCJ correctly notes that the relevant date under section 5402 for rejecting liability is the date that liability is rejected by the defendant, not the date that the injured worker is notified of the rejection. (Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425, 1432-1433 [59 Cal.Comp.Cases 857].) However, there was insufficient evidence, either testimonial or documentary, of when liability was rejected by the employer. The WCJ relied upon employer's testimony that the claim was rejected in "November or December" (Minutes of Hearing and Summary of Evidence of April 2, 2024 trial at p. 4) and a January 2020 email referencing a prior,
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5402(b)
Labor Code section 5402(b) presumption of compensability if liability is not rejected within 90 days after claim form filing.
The presumption applies unless timely denial is proven; here, the claim form was mailed by an agent and not signed by applicant, but this was found to substantially comply with the statute.
From the decision · page 3With regard to the issue of the Labor Code section 5402(b) presumption, Labor Code section 5401 requires that a worker be provided with a DWC-1 claim form after the employer gains knowledge of the worker's injury or claim of injury. Labor Code section 5402(b) states: "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. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period."
Labor Code section 5401
Labor Code section 5401 requires provision of DWC-1 claim form after employer knowledge of injury.
The claim form was mailed by applicant's former counsel as agent, satisfying the requirement despite lack of applicant's signature.
From the decision · page 3With regard to the issue of the Labor Code section 5402(b) presumption, Labor Code section 5401 requires that a worker be provided with a DWC-1 claim form after the employer gains knowledge of the worker's injury or claim of injury. Labor Code section 5402(b) states: "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. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period."
Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425
The date of denial is the date liability is rejected by the employer, not the date worker is notified.
The WCJ relied on employer testimony and email evidence, but the timing was insufficiently established, requiring further development.
From the decision · page 4The WCJ in this case found that any claim form was timely rejected. The WCJ correctly notes that the relevant date under section 5402 for rejecting liability is the date that liability is rejected by the defendant, not the date that the injured worker is notified of the rejection. (Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425, 1432-1433 [59 Cal.Comp.Cases 857].) However, there was insufficient evidence, either testimonial or documentary, of when liability was rejected by the employer. The WCJ relied upon employer's testimony that the claim was rejected in "November or December" (Minutes of Hearing and Summary of Evidence of April 2, 2024 trial at p. 4) and a January 2020 email referencing a prior,
What proof carried it
The evidence the panel weighed, by kind.
Insufficient evidence of when employer denied liability; employer testimony and email evidence were inconclusive on timing of denial.
From the decision · page 4The WCJ in this case found that any claim form was timely rejected. The WCJ correctly notes that the relevant date under section 5402 for rejecting liability is the date that liability is rejected by the defendant, not the date that the injured worker is notified of the rejection. (Rodriguez v. Workers' Comp. Appeals Bd. (1994) 30 Cal.App.4th 1425, 1432-1433 [59 Cal.Comp.Cases 857].) However, there was insufficient evidence, either testimonial or documentary, of when liability was rejected by the employer. The WCJ relied upon employer's testimony that the claim was rejected in "November or December" (Minutes of Hearing and Summary of Evidence of April 2, 2024 trial at p. 4) and a January 2020 email referencing a prior,
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About this page
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