ADJ17388371 · September 25, 2025

The WCAB panel found the petition for reconsideration timely and denied it on the merits, upholding the penalties for unreasonable delay of benefits due to the defendant's failure to rebut the presumption and unreasonable denial of claims.

From the decision · page 1OPINION AND ORDER DENYING PETITION FOR

Defendant had all necessary information to determine application of presumption at time of claim denial.

Favours Applicant prevailed

This supported the finding of unreasonable denial and penalties under Labor Code section 5814.3.

From the decision · page 6issue regarding rebuttal of the presumption. Thus, all the information needed to determine whether the presumption applied was available to the defendant at the time of the denial: the applicant's employer and job title, the existence of exposure to a known carcinogen on repeated occasions, and that he manifested cancer while working. It was appropriate to find the defendant unreasonably denied the applicant's inter vivos and death claims. The defendant provided a conclusory statement that there was no unreasonable delay, which does not make it so.

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The panel found the petition timely as the decision was issued within 60 days of transmission.

From the decision · page 1Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Labor Code section 5814.3

Penalties for unreasonable delay of benefits apply when denial of claims is without reasonable basis, especially in presumption cases.

The panel upheld penalties due to unreasonable denial of claims despite presumption under Labor Code section 3212.1.

From the decision · page 4The defendant, Modesto Fire Department, is now seeking reconsideration of the 12 June 2025, Finding of Fact and Order finding two penalties are due to the applicant pursuant to Labor Code Section 5814.3. The Petition for Reconsideration ("Petition") is verified and timely. A timely verified Answer has been filed by the applicant. It is recommended that the defendant's Petition should be denied in its entirety.

Defendant failed to rebut presumption under Labor Code section 3212.1 and unreasonably denied claims despite having all necessary information.

From the decision · page 6At the outset it should be noted that certain occupations are provided with a presumption of industrial causation as a matter of public policy. Thus, the presumptions contained in Labor Code Section 3212 et seq shift the burden of proof to the defendant to show why the injured worker is not afforded the benefit of the presumption, thereby rebutting the presumption shifting the burden of proof back to the applicant regarding causation. The purpose of the penalty provision specifically associated with denial of presumption cases was to encourage employers to accept those cases that on their face comply with the presumption. The rationale for enacting the provision was due to the general behavior of many employers to deny cases for the class of employees covered by the presumptions and force determinations at the Workers' Compensation Appeals Board ("WCAB"). The legislative history of Labor Code Section 5814.3 suggests that the penalty provisions would encourage employers to pick up the "easy" cases.