by Ricky Halladay

Have you ever received notice of a workers’ compensation claim by an injured worker after they were terminated from employment?

This is not a unique situation, and in fact, occurs more often than one would think.

Labor Code section 3600(a)(10) states, when the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:

  • The employer knew about the injury prior to termination.
  • The applicant has medical records existing prior to termination that show injury.
  • The specific injury occurs after notice of termination but before the last day of work.
  • The date of injury, pursuant to Labor Code section 5412, is subsequent to the date of the notice of termination or layoff.

However, if the applicant has alleged a cumulative trauma claim, further discovery will be required to determine when the applicant had knowledge plus disability.

Labor Code section 5412 states the date of injury for a cumulative trauma claim is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

Remember the applicant can overcome a post-termination defense if it is a cumulative trauma injury, and the applicant did not have disability plus knowledge of the injury until after he/she was terminated.

The applicant may be aware the job is injuring them while they are employed. However, they are unaware they have sustained an industrial disability until they have sought the advice of a medical doctor. Often, an applicant does not seek the advice of a medical doctor until after they have been terminated. When the opinion of the medical doctor finds an industrial injury, the applicant will then have knowledge after he/she was terminated. Therefore, the injury will be dated the day of the evaluation, which is after the date of termination or layoff.

Ultimately, when an applicant alleges a cumulative trauma injury after they have been terminated, additional discovery will be required to determine whether we have a viable post-termination defense. This would include a deposition of the applicant to identify any treatment providers the applicant may have seen prior to and after his/her termination or layoff. Additionally, we would need to proceed to a medical-legal evaluation to determine whether the applicant sustained an industrial injury and if so, the cumulative trauma period. Dependent upon the information received through the discovery process, we may discover other viable affirmative defenses to defeat the claim.

Here at Yrulegui & Roberts, we aggressively advocate for our client’s by asserting all available affirmative defenses to help bring a favorable resolution to the claim. Please contact us at (559) 222-0660 for further information.