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.
2014 Book MPN Issues, Denied Cases, Disputed
Liability,
Contested Liability and Burden of Proof
$235.00