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Grinberg: 90-Day Presumption Defeats Going-and-Coming Rule

By Gregory Grinberg

Wednesday, June 13, 2018 | 177 | 1 | min read

Did you know, before members of the defense community go to sleep, we check underneath our beds for the most terrifying monster of all — the 90-day presumption?

Gregory Grinberg

Gregory Grinberg

No, not really, but the 90-day presumption has some pretty vicious teeth to it. Labor Code section 5402(b) provides that “if liability is not rejected within 90 days after the date the claim form is filed … the injury shall be presumed compensable under this division.”

The case I bring to your attention today is that of Quintanilla v. Pronto Express & Services Inc. Quintanilla was a death claim in which the decedent’s family sent a claim form to the employer. The claim was ultimately denied, citing on the “going-and-coming” rule that we all know and love so much.

In terms of the particular facts, Mr. Quintanilla was driving home from work and had stopped at a store to pick up food at the request of his wife.  He was murdered by a gunman during the stop.

However, in a cruel twist of fate, at an arising out of employment/course of employment trial, the workers' compensation judge found that the denial came too late.

In the decision, the WCJ noted that the claim form was served on defendant on July 20, 2016, but the denial was not issued until Oct. 31, 2016 —103 days later. The WCJ reasoned that since the facts of the case, especially those giving rise to the coming-and-going defense, were available to defendant within those 90 days, the claim was presumed compensable.

The frustrating thing about this is, of course, that had there been a timely denial, the applicant’s claim would likely have been barred.

I'm turning toward the stormy seas of speculation at this point, but if I had to venture a guess, without any actual knowledge, I would think that in these cases, the reason for the late denial is a slow response from the employer. By failing to immediately act upon the knowledge that an industrial claim is being made, the employer usually puts itself in a disadvantageous position.

So, this seems like a perfect opportunity to remind readers not to sit on their rights or defenses. Problems don’t go away by themselves. They just come back as bigger, more expensive problems.

If there’s a real or potential claim out there, notify your insurer or talk to a workers’ compensation defense attorney right away. No matter how meritless the claim might seem on its face, the draconian effect of 5402 can be biting, indeed.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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