When the Law Offices of Roy Yang gets a call from a Sacramento worker who filed a DWC-1 form more than 90 days ago and still has not received a formal acceptance or denial, the first question is: Was there a valid rejection? Under California Labor Code Section 5402(b), if an insurer fails to reject a claim within 90 days of receiving the DWC-1 form, the injury is presumed compensable by law. Call (916) 269-9100 for a free evaluation.
Before representing injured workers, attorney Roy Yang spent years on the defense side for insurance carriers. He knows the three tactics insurers use when they realize they have missed the 90-day deadline. He knows which attempts courts credit and which ones collapse at the Sacramento WCAB.
Key Takeaways
- California Labor Code Section 5402(b) presumes your injury is compensable if the insurer does not reject within 90 calendar days of receiving your DWC-1 form.
- The 90-day clock starts when the employer receives your completed DWC-1 form, not on the date of injury.
- Under Section 5402(c), your employer must authorize up to $10,000 in medical treatment while the claim is under investigation, even before a decision is made.
- The presumption is rebuttable only by evidence the insurer could not have discovered with reasonable diligence during the 90-day window. Evidence that existed and was obtainable within that period cannot rebut it.
- Rodriguez v. WCAB (1994) clarified that the insurer’s decision to reject must occur within 90 days; the denial letter does not need to be received within 90 days. Documentation of when the decision was made is critical for both sides.
- Insurers use three main tactics to fight the presumption after a missed deadline: (1) disputing that the DWC-1 was properly filed, (2) claiming newly discovered evidence that was actually available within the 90 days, and (3) retroactive documentation of an alleged timely rejection decision.
- If the presumption applies and you were unable to work during the investigation period, you may have a retroactive claim for temporary disability benefits covering wages lost during the delay.
What California Labor Code Section 5402 Actually Says
The 90-Day Presumption Under Section 5402(b)
California Labor Code Section 5402(b) states: if liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury is presumed compensable. The statute further provides that this presumption is rebuttable only by evidence discovered subsequent to the 90-day period.
Three words in this statute carry the most legal weight: “not rejected.” The presumption attaches when the insurer fails to reject, meaning fails to make the decision to deny. Under Rodriguez v. WCAB (1994) 59 Cal.Comp.Cases 857, a California Court of Appeal held that it is the decision to reject, not the receipt of the denial letter, that must occur within 90 days. This cuts both ways: an insurer that made a documented rejection decision on day 88 but mailed the letter on day 95 may still have a valid denial. An insurer that has no documentation of a contemporaneous rejection decision cannot create one retroactively.
The Medical Care Obligation Under Section 5402(c)
California Labor Code Section 5402(c) requires the employer to authorize up to $10,000 in medical treatment while the claim is under investigation. This obligation applies during the 90-day period regardless of whether the claim has been accepted or denied. If your employer refused to authorize any medical care while the investigation was pending, that refusal may separately violate Section 5402(c).
When Does the 90-Day Clock Start?
The Clock Runs From DWC-1 Receipt, Not the Date of Injury
This distinction matters more than most workers realize. The 90-day investigation period does not start on the date of the injury. It starts on the date the employer receives the completed DWC-1 claim form.
Event | Does This Start the 90-Day Clock? |
| Date of injury | No |
| Date worker verbally reports the injury to supervisor | No |
| Date employer provides DWC-1 form to worker | No |
| Date employer RECEIVES completed DWC-1 from worker | Yes: this starts the 90-day period |
| Date insurer receives DWC-1 from employer | Possibly, depending on how the form was routed |
Keep a dated copy of your completed DWC-1 form and document how and when you delivered it. Email with a read receipt, fax with a confirmation, or delivery requiring a signature all create evidence of the delivery date. Without that documentation, the insurer may dispute when the clock started.
The Rebuttable Presumption: Powerful but Not Absolute
What the Presumption Means for Your Case
When the presumption attaches, your injury is treated as accepted. You do not have to prove causation. The burden shifts to the insurer to disprove compensability. Medical treatment, temporary disability benefits, permanent disability benefits, and all other workers’ comp benefits flow from an accepted claim.
The Strict Limits on How the Presumption Can Be Rebutted
The presumption can only be rebutted by evidence the insurer could not have discovered with reasonable diligence during the 90-day window. This is a high bar. Prior medical records existed during the 90 days, meaning an insurer could have requested them. Witness statements from coworkers were available during the 90 days. The employer’s own investigation file was built during the 90 days. None of this constitutes newly discovered evidence.
Evidence Type | Can It Rebut the Section 5402(b) Presumption? |
| Prior medical records obtainable within 90 days | No: existed within the window and should have been obtainedA case-management hearing |
| Witness statements from people available during the 90 days | No: insurer had the opportunity to interview them |
| Post-injury surveillance footage acquired after Day 90 | Possibly, if acquired after the window closed |
| A newly reported prior injury the worker concealed | Possibly, if undiscoverable within the 90 days despite diligence |
| Expedited hearing | A faster hearing on eligible issues |
How Insurers Try to Rebut the Presumption, and Why Most Attempts Fail
Roy Yang watched how carriers handle missed 90-day deadlines from the inside. The playbook has three moves.
Tactic 1: Argue the DWC-1 Was Never Properly Filed
The insurer claims the clock never started because the DWC-1 was defective, submitted to the wrong person, or never received by the right party. This argument fails when you have documentation of delivery: dated email, fax confirmation, or delivery receipt. Without that documentation, you are fighting the insurer’s denial of receipt. Always document your DWC-1 delivery.
Tactic 2: Claim Newly Discovered Evidence That Was Actually Available Within 90 Days
This is the most common rebuttal attempt. The insurer produces prior medical records, prior claims, or witness statements and calls them newly discovered. Under the Rodriguez standard, the test is not whether the insurer actually looked for the evidence; it is whether a diligent investigation would have found it. Prior records obtainable through standard requests are not newly discovered simply because the adjuster did not request them.
Tactic 3: Retroactive Documentation of an Alleged Rejection Decision
Some adjusters attempt to reconstruct a contemporaneous rejection decision after the deadline. A file note dated Day 87 that appears suspiciously timed, or a letter signed within the 90-day window that was never sent until much later, raises credibility issues that Roy Yang is trained to identify through cross-examination and deposition. The Rodriguez court itself warned against this practice.
Has Your Insurer Missed the 90-Day Deadline?Roy Yang knows all three rebuttal tactics insurers use after a missed deadline, and how to counter each one. The firm charges 15%, WCAB-approved, not 33%. Call (888) 417-7963 or (916) 269-9100. Hablamos espanol. Atendemos a trabajadores lesionados en el Norte de California en ingles y espanol. Past results do not guarantee future outcomes. Every case is different. |
Temporary Disability Benefits and What You Are Owed During a Delay
If the presumption of compensability applies and you were unable to work during the investigation period, you may have a retroactive claim for temporary disability benefits in California for the wages you lost. Temporary total disability (TTD) is calculated at two-thirds of your average weekly earnings at the time of injury, subject to annual state maximums.
Enforcing the Presumption: What to Do Next
- Count the days from when your employer received your completed DWC-1 form. If more than 90 days have passed without a formal Notice of Denial, the presumption may have attached.
- Send a written demand to the claims administrator. State that the Section 5402(b) 90-day period has elapsed and demand a Notice of Acceptance. Document the date and method of this communication.
- Contact the DWC Information and Assistance (I&A) Unit at 1-800-736-7401. I&A officers can contact the insurer on your behalf and help compel a decision.
- File an Application for Adjudication of Claim with the WCAB. This formally opens your case before a judge and preserves your rights. In Sacramento, the WCAB district office is at 160 Promenade Circle, Suite 300.
- Document all medical expenses you paid out of pocket during the delay. These may be reimbursable once the presumption is enforced and benefits are ordered.
Understanding the California workers’ comp claim process from DWC-1 filing through the Mandatory Settlement Conference clarifies what documentation you need to establish the presumption and enforce your rights at each stage.
Why This Is Not a Case to Handle Without Legal Representation
The Law Offices of Roy Yang, APC has handled 90-day presumption cases for injured workers throughout Sacramento and Northern California for more than two decades. The firm knows from the defense side how carriers attempt to rebut the presumption after missing the deadline, and which tactics hold up in front of a WCAB administrative law judge and which ones do not.
The firm charges 15%, reviewed and approved by the WCAB. Industry standard in personal injury is 33%. You owe nothing unless the firm recovers for you.
California workers’ comp protects all workers regardless of immigration or documentation status, including undocumented workers. The DWC confirms you do not need to be a legal U.S. resident to receive workers’ compensation benefits.
Frequently Asked Questions
My claim has been “under review” for six months. Does that mean the insurer admitted it?
“Under review” is not a formal acceptance. It is a status that may indicate the insurer is still investigating, or that they have missed their deadline. Count the days from your DWC-1 delivery date. If more than 90 calendar days have passed without a written Notice of Denial, request a formal status in writing and contact an attorney immediately.
The insurer sent a denial letter but it arrived after the 90-day mark. Is my presumption gone?
Under Rodriguez v. WCAB (1994), the decision to deny, not the receipt of the denial letter, must occur within the 90-day window. If the insurer can produce documentation showing the rejection decision was made within 90 days, such as an internal file note or a denial letter dated within the window, the presumption may not attach even if you received the letter after day 90. If no such documentation exists, the insurer faces a significant credibility problem when arguing timely rejection.
What if the insurer says they never received my DWC-1 at all?
This is why documented delivery matters. A DWC-1 delivered by email with a read receipt, fax with transmission confirmation, or mail with signature confirmation creates a record the insurer cannot easily dispute. If you delivered the form verbally or informally and have no documentation, an attorney can help reconstruct the timeline through employer acknowledgments, medical records, and modified duty assignments that reflect employer knowledge.
Can the insurer avoid the presumption by issuing a “delay letter” instead of a denial?
A delay letter is not a denial. Sending a letter stating that investigation is ongoing does not constitute the rejection required by Section 5402(b). Only a formal written denial, rejecting liability, satisfies the statute. A delay letter received after day 90 does not retroactively preserve the insurer’s right to deny.
If the presumption applies, can I still settle my case?
Yes. A claim where the presumption of compensability applies has stronger settlement value than an active dispute. Understanding whether to settle your workers’ comp case, and how to value the full benefit stream including retroactive TD and future medical, requires reviewing all evidence before accepting any offer.
Contact Roy Yang About Your Delayed or Unanswered Claim
Call (916) 269-9100 or (888) 417-7963 to discuss your claim timeline. The Law Offices of Roy Yang, APC serves injured workers in Sacramento, Modesto, Elk Grove, Folsom, Roseville, Oakland, Stockton, and Lodi.
Schedule a free case review: no fee unless we recover for you. Hablamos español. Atendemos a trabajadores en el Norte de California en ingles y espanol.
Past results do not guarantee future outcomes. Every case is different.
