Zelnik, Gerard

Applicant Gerard Zelnik, a regional compliance officer, stipulated to an industrial psyche injury sustained on August 31, 2018. He filed his claim on September 4, 2018, but defendant denied the claim twice—on December 13, 2018 and January 2, 2019—both more than 90 days after filing, asserting the good faith personnel action defense. The WCJ found the psyche injury presumed compensable under Labor Code section 5402(b) and held that defendant was barred from asserting the section 3208.3(h) good faith personnel action defense because no evidence was shown to have been discoverable only after the 90-day period. The Appeals Board rescinded the F&A, holding that the section 5402(b) presumption does not preclude a defendant from asserting and presenting evidence on the good faith personnel action defense regardless of when the evidence was reasonably obtainable. The matter was returned to the trial level for further proceedings and a new decision on the merits of the defense.