The four clocks on a new claim

What actually starts the 90-day clock?

Filing of the claim form, not notice of injury. A claim form is deemed filed when it is personally delivered to the employer or received by the employer by first-class or certified mail. Until the form is filed, the 90 days has not begun, which is why a late DWC-1 is a compliance problem rather than a clerical one. The employer's one-working-day duty under §5401 exists precisely to start that clock promptly.

What happens if an employee does not file a claim form?

Per 8 CCR § 10137, an employee’s failure to file a claim form does not excuse an employer from providing timely compensation to an injured worker. Workers’ compensation benefits must still be paid if a claim form is not filed. But, the self-imposed penalty under LC §4650(d) does not apply unless a claim form is filed. Per LC §5401(d), a claim form must be filed prior to a request for a QME. Also, a claim form must be filed to trigger the 90-day investigation period under LC §5402(b)(1).

What happens if you miss the 90 days?

If a claim form is filed and the claim is not timely denied, the injury is presumed compensable. LC §5402(b)(1) states the presumption “is rebuttable only by evidence discovered subsequent to the 90-day period.” But the courts have gone further and held that LC §5402(b)(1) precludes an employer from disputing liability for injury with evidence that could have been obtained with the exercise of reasonable diligence within the 90-day period. Read that carefully: evidence you already had, or could have obtained during the investigation window, will not rebut it. In practical terms the investigation window and the decision window are the same window. There is no quiet extension.

Which claims get 75 days instead of 90?

Claims involving the statutory presumptions in Labor Code §§3212–3212.85 and §§3212.9–3213.2: the cancer, heart trouble, hernia, tuberculosis, meningitis, MRSA and related presumptions that apply to firefighters, peace officers and other safety members. SB 1127 shortened the decision period for those claims to 75 days effective January 1, 2023.

What must a delay notice say, and when?

If you cannot determine within 14 days whether temporary disability is payable, you must send a delay notice within that same 14-day period. Under 8 CCR §9812(a)(2) it must state:

• that the decision is delayed
• the reasons for the delay
• what additional information, if any, you need to make the determination
• when a determination is likely to be made

That last element creates a second obligation. If you have not made the determination by the date you specified, you must send a further delay notice on or before that date, giving the revised determination date. A subsequent delay notice must meet every content requirement of the original. Delay notices are not a holding pattern. Each one sets a date you are then accountable to. Generally, the delay letter should specify the end of the 90-day period under LC §5402(b) as the date the determination is likely to be made.

The two penalties, and why they are different

Adjusters routinely conflate these. They are separate, they can both apply, and only one is automatic.

The §5814 penalty has its own limitation period: no action to recover it may be brought more than two years after the date the payment was due. Also, if an employer discovers a violation prior to an employee claiming a penalty, then it may pay a self-imposed penalty in the amount of 10 percent of the payment unreasonably delayed or refused, along with the amount of payment delayed or refused to avoid the greater penalty under §5814.

And §4650(d) carries its own exceptions: no increase applies to a payment that comes due within 14 days of the claim form being submitted, or where you could not determine entitlement within 14 days and gave proper written notice explaining the delay and what you needed.

That exception is the whole argument for sending a clean, specific delay notice. It is the document that converts a late payment into a compliant one.

What a compliant first 90 days looks like

• Day 0: notice or knowledge of injury.
• Within 1 working day: DWC-1 provided to the employee (§5401).
• On filing: the 90-day clock starts. Diary day 75 and day 90 separately if the claim involves a §3212-series presumption.
• Within 14 days of knowledge of injury and disability: first TD payment, or a delay notice meeting all four content requirements (§4650; 8 CCR §9812).
• Conduct the necessary discovery: schedule medical evaluations, interview the employee and witnesses, obtain medical records and/or employment records, as necessary.
• On or before every stated determination date: a decision, or a further delay notice.
• By day 90 (or 75): accept or reject, in writing.

The one-line version

One working day to hand over the form, fourteen days to pay or explain in writing why you cannot, ninety days to decide (seventy-five if it is a safety-member presumption), and after that, only evidence you could not have obtained may be used to deny the claim.