Labor Code section 5402 is a cruel mistress – the burden is placed on the defendant to deny a claim within 90 days of the ink drying on a claim form, otherwise the applicant gets to enjoy the presumption of compensability.

But what happens when an applicant doesn’t raise the issue at trial?

After all, California’s world of workers’ compensation is not a game of rock-paper-scissors and not every conceivable issue may be raised at trial.  In the case of Maria Rosas v. S & S Resort Management, that’s exactly what happened – applicant’s claim was not denied within 90 days but the issue was not raised at trial.

In her petition for reconsideration, applicant argued that the workers’ compensation Judge erred by not applying the presumption in her favor without it being raised.

The Workers’ Compensation Appeals Board rejected the claim.  Reasoning that, without the issue of a timely denial being raised the defendant was not on notice to prepare evidence and arguments to show a timely denial, and applicant’s claim would therefore unfairly prejudice the defendant.

So what does this mean for the defense community?  Even in cases where a denial was not timely made within the 90 day period afforded by Labor Code section 5402, the defense should not limit itself and push forward with all necessary evidence at trial.  Applicant’s counsel may just waive the presumption.

For an example of the presumption being rebutted, see this post.