The 90-Day Presumption Does Not Apply to a “Part of Body” Dispute

The WCAB has ruled on an issue of concern to many thoughtful claims administrators: does a denial notice need to be sent when an applicant raises a new, disputed part of body in an accepted injury claim?

For example, an applicant claims injury to the right knee, the claim is accepted, and he later files an Amended Application for Adjudication of Claim alleging a compensable consequence injury to the left knee, which is disputed.  Must the claims administrator issue a denial of that new part of body within 90-days of that amendment?  A WCAB panel has answered, “No.”

In Hortencia Garcia v. White Apron, Inc/Zenith North America 2012 Cal. Wrk. Comp. P.D. LEXIS 575, a panel of the WCAB affirmed a judge’s rejection of applicant’s argument that her left wrist was a presumed compensable consequence of her accepted thumb injury.  Applicant contended that because the claims administrator failed to issue a denial of the left wrist within 90-days of her amendment adding the wrist, the wrist was therefore presumed compensable per Labor Code section 5402(b).

Applicant’s argument was rejected by the judge and the WCAB because this is a “part of body” issue, not a new claim of injury, and is therefore not subject to the 90-day rule.  No denial of a compensable consequence add-on is required.  Instead, the employer should raise “part(s) of body” as an issue in the Answer to the Amended Application and timely object to any treating physician’s report requesting treatment to the new part of body per Labor Code sections 4061/4062 et seq. so that the issue can be resolved by an AME or panel QME.

It is also noteworthy that the WCAB rejected applicant’s second argument that, because the employer had provided some medical treatment to the disputed left wrist, it was thereby admitting liability to the wrist.  That rejection is consistent with Labor Code section 4909 – the payment of a disputed workers’ compensation benefit is never an admission of liability.

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