POST TERMINATION

Leprino Foods v. Workers' Compensation Appeals Bd., (2007)  72 Cal. Comp. Cas. (MB) 605; 612,

As to Owens's cumulative trauma injury, the WCJ found the claim not barred by the post-termination defense under section 3600,
subdivision (a)(10)(D). That provision expressly permits post-termination cumulative injury claims where the date of injury, as
established under section 5412, occurs after termination. The WCJ found Owens's cumulative injury occurred on either November
18, 2004, or December 14, 2004, consistent with reporting from two physicians. Although Leprino contends Owens was required
to file a workers' compensation claim before termination when he first noticed foot pain, Leprino never demonstrated Owens knew
or reasonably should have known the pain was casually connected to his employment before he was terminated. (City of Fresno v.
Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471 [209 Cal. Rptr. 463, 50 Cal. Comp. Cases 53]   [employer does not
prove employee knew he had an industrial injury ''merely by a showing that the employee knew he had some symptoms''].)


Chaparral Construction & Development v. Workers' Compensation Appeals Bd.,(2006)  71 Cal. Comp. Cas. (MB) 879 writ
denied the Court held  AOE/COE was not barred under Lab. C. § 3600(a)(10) as post-termination claim, when WCAB found from
applicant's testimony that defendant had notice of injury prior to termination, on date of injury, because applicant told supervisor
on that date, and WCAB relied on applicant's testimony instead of on hearsay statement by owner of defendant company that
supervisor told owner that applicant had not reported injury to supervisor.



WCAB upheld WCJ's finding that applicant/janitor's claims for injuries to back and lower extremities during cumulative period
through 1/9/2004 and to psyche and respiratory system during cumulative period through 1/21/2004, were not barred by Labor
Code § 3600(a)(10)(A) post-termination defense because evidence of applicant's injuries was contained in applicant's medical
records existing prior to notice of termination, thereby triggering exception to rule against   post-termination claims as set forth in
Labor Code § 3600(a)(10)(B), and WCAB found that Labor Code § 3600(a)(10)(B) exception requires only that medical records
contain evidence of injury, not evidence of industrial causation, and that neither medical evidence that was "incomplete" because
doctor's report was a progress note instead of a medical-legal report, nor fact that causation had not yet been determined were
sufficient grounds to bar compensation based on post-termination defense

Jesus Hernandez, Applicant v. Warner Bros. Studios, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 353, Opinion Filed July
9, 2009

Petitioner erroneously asserts that the medical record exception to the post termination defense does not exist here. Lab. C.
§§3600(a)(10)(B) and 3208.3(e)(3) merely require that "the employee's medical records, existing prior to the notice of termination
or layoff, contain evidence of the injury". Kafka v. WCAB (1996) 61 CCC 408 (writ denied) points out in the comment by the
Appellate Court on page 410, "the plain wording of the exception requires the medical records contain only evidence of 'the injury,'
not evidence of industrial causation." Medical evidence that was "incomplete" because the doctor's report was a progress note,
instead of a medical legal report, or because causation [*13]  had not yet been determined, were not found to be good cause to bar
compensation based upon a post termination defense.


§ 3600.  Conditions essential



(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as
otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for
any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee
if the injury proximately causes death, in those cases where the following conditions of compensation concur:



(10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where 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:

(A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of
termination or layoff.

(B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.

(C) 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.

(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.

For purposes of this paragraph, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 72411, 87740,
and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district's
final decision not to reemploy that person.

A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the
provisions of this paragraph, and this paragraph shall not apply until receipt of a later notice of termination or layoff. The issuance
of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this
paragraph inapplicable to the employee.