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The Post-Termination Defense

By Catie McLaughlin


Under the Workers' Compensation Act, liability for compensation exists for any injury sustained by the employee arising out of and in the course of the employment, and for the employee's death if the injury proximately causes death. (Lab. Code, § 3600, subd. (a)). The system reimburses or provides all medical treatment necessarily required to cure or relieve the effects of an industrial injury. However, certain injuries are excluded from coverage, specifically “post-termination claims.”




Labor Code, § 3600, subd. (a)(10), affords the employer a barricade to workers’ compensation claims filed after the employee has been terminated from his or her job It is important to note that term “voluntary layoff,” does not include resignations. Therefore, post-resignation claims do not bear the same burden in establishing compensability as claims made after notice of termination or layoff for pre-notice injuries. CJS Co. v. Workers' Comp. Appeals Bd. (App. 3 Dist. 1999) 74 Cal.App.4th 294. Thus, voluntary resignation or retirement usually is not considered termination, unless the employee was forced to resign or given a choice to resign or be fired.


The post-termination defense is an affirmative defense that is raised by the defendant. A claim filed after any of these events will only be compensable if the employee is able to show, by a preponderance of evidence that at least one of the following conditions apply:


  1. The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.
  2. The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
  3. The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
  4. The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.




  • In no uncertain terms, terminate the employee. Termination is an employer-initiated separation. You do not want the employee to be able to argue that they retired, voluntarily quit, or abandoned their job.

  • Document, document, document. It is important to have thorough record-keeping for all your employees when it comes to performance issues and disciplinary actions.

  • In order to prevent applicant from claiming the termination was in retaliation for filing the workers’ compensation claim, have Human Resources hold a meeting with applicant to discuss the reasons for the termination. Immediately following any and all meetings with applicant, memorialize the discussion in writing. Invite applicant’s supervising manager to attend the meeting, and have him or her also provide a written summary of the meeting.

  • Implement policies to ensure employees are aware, in the event they are injured on the job, that they must report the injury to an authorized individual, i.e., simply informing a co-worker of the injury, is not proper protocol. Imparting such knowledge may be accomplished by holding company-wide safety meetings, providing clear instructions in the employee handbook, and placing posters in break areas, or other locations where employees frequently congregate.

  • Finally, depose the applicant immediately in order to confirm both the date of injury and/or the date applicant had knowledge the injury was industrially related. It is also important to have applicant provide a detailed account of their version of the story, in case it changes. Additionally, obtain a detailed medical history of applicant, so appropriate medical records may be subpoenaed, in order to build your defense.

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