Stevens: How CT Doctrine Undermines Post-Termination Defense

Tuesday, September 5, 2023 | 0

The post-termination defense may seem like a good defense against sketchy cumulative trauma claims, but a closer look at California statutes reveals how the Labor Code undermines that plan of action.

Daniel R. Stevens

Let’s take a moment to focus on a very common situation that claims examiners find themselves in:

• You’ve received a new claim where the injured worker is alleging cumulative trauma (CT) injuries after being terminated.
• The application is the first notice of any injury to the employer.
• The chances are that the post-termination defense instantly pops into your mind.

In the California workers’ compensation system, there are numerous codified defenses that sound particularly potent on paper, but in practice have almost no teeth whatsoever. The post-termination defense is one of these unfortunate defenses.

Adding insult to injury is the fact that California is the only state that recognizes CT injuries. That particular twist makes defending post-termination CT claims quite problematic.

But even before we get to that issue, how and why the injured worker is no longer employed needs to be examined. Plainly put, if the injured worker quit/resigned by his own accord before making their CT claim, he was not “terminated” by the employer, and thus, the post-termination defense is not even applicable.

But what about claims where there was a clear termination before the employer ever received notice of any potential CT injuries? In those situations, there certainly is a strong implication that the workers’ compensation claim was filed in retaliation for being fired.

Those who are unfamiliar with these types of claims may be in for a nasty surprise at this stage of the analysis.

The surprise is tucked away in Labor Code Section 3600, which is the statute where the post-termination defense is codified. Specifically, Section 3600(a)(10)(D) provides that “no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that … [t]he date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.”

So what does that language actually mean?

For many claims examiners, their first introduction to Section 5412 comes up when trying to get their clients dismissed from CT claims due to a lack of coverage during the alleged CT period. Labor Code Section 5412 says:

The date of injury in cases of … cumulative injuries 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.

In layman’s terms, this section means that the defense needs to figure out when the worker knew he was injured. If he knew he was injured before being terminated but did not make a claim until after being terminated, then the claim should be barred, per Section 3600(a)(10)(D).

However, in many cases, injured workers are not aware of the concept of cumulative trauma injuries. Many employees do not believe they can even make workers’ compensation claims without some obvious event that resulted in an injury (i.e., a specific injury).

Often, an injured worker will testify that while he may have been experiencing pain while performing normal job duties, he did not believe he was injured, since nothing unusual happened while doing his job.

In other words, while he certainly appreciated that his job caused him to be sore at the end of the workday, he did not know that he could be injured simply by doing the same repetitive tasks over and over again.

This, then, begs the question: How and when does an injured worker know he has possible CT injuries? Unfortunately, the most common answer is he knows when a medical professional informs him.

Let’s circle back to our fact pattern where the terminated employee did not give notice to the employer of his pain or symptoms prior to termination. In this scenario, the question now shifts to what medical treatment he received, if any, and when he received it. The chances are really good that the first medical treatment occurred after the worker was terminated.

And if this post-termination medical visit is the first time that the injured worker is being clued in to the fact that California recognizes CT injuries, then the date of injury per Section 5412 is most likely going to be after the termination date, which then effectively kills your post-termination defense.

Takeaways

The takeaway here is that while post-termination CT claims are generally denied at the outset due to a lack of medical evidence of any injuries, this defense is rather easily overcome by applicants' attorneys who know the law.

At the applicant’s deposition, a savvy defense attorney will focus on what activities the applicant was doing, which ones were causing pain and whether he had any clue that the work-related activities might be injuring him.

But even then, a quality panel qualified medical evaluator report is likely to be the key determining factor for establishing the LC 5412 date of injury simply due to the fact that most injured workers aren’t sophisticated enough to appreciate they had CT injuries in the first place.

Daniel R. Stevens is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Ventura location. This entry from Bradford & Barthel's blog appears with permission.