Just last week, bright and early, your humble blogger submitted a request for a panel online and got one.  Pleasantly surprised, I find that the online system seems to be holding up, and perhaps my “chicken little” posts of the past were a bit unwarranted.

It’s a good thing, too, because defendants need all the time they can get, what with the 90-day denial period of Labor Code section 5402.  Take, for example, the recently writ denied case of Ramirez v. Osteria Coppa LLC.

The applicant was Mr. Ramirez’s widow, her husband having died following an industrial injury.  Although receiving initial notice of the claim less than 3 months after the date of injury, the panel opinion reflects that there was no denial issued.  Instead, applicant obtained a PQME report which found the injury was not industrially caused, and then proceeded to seek dismissal of the claim for death benefits.

Applicant objected, raising LC 5402 and claiming that, as the claim was not denied within 90 days, it was presumed compensable, and that presumption could only be rebutted by evidence that could not have been obtained during the first 90 days.

The WCAB found that nothing in the PQME’s report was information that could not have been obtained during those first 90 days of knowledge, and, so, his report was properly excluded.

This is a tough one – 90 days is not a lot of time in the grand scheme of things.  Let’s say that the adjuster has absolutely NOTHING to do all day, and is twiddling his or her thumbs when a claim comes in.  Out of sheer boredom, the adjuster takes a look at the file and decides it warrants some investigation, and issues a delay notice.

Sixteen days later, the adjuster can request a panel (see regulation 30(d)(1)); even if the adjuster gets the panel right away (as in, online) the strike or selection process can take another ten days (see section 4062.1 and 4062.2) or even 15 days so we’re now up to 26-31 days gone.  If the applicant decides to run out the clock the adjuster still has to wait 10 days to schedule the appointment, so now we’re up to 36-41 days.

As per regulation 31.5(a)(2), the QME has up to 60 days to schedule the appointment and another 30 days to issue the report (section 38(b)).  Well, it’s easy to find yourself past the 90-day mark, even with immediate and super-human diligence.

So what do you do?

If you have your doubts, perhaps you should consider denial pending the QME report.  In the long-run, that may be a safer way to go than to miss the 90-day denial window and then rely on rebutting the presumption with subsequently-acquired evidence.