Friedman: Strategies for Defense of Post-Layoff CT Claims in the Coronavirus Era

Wednesday, April 1, 2020 | 0

It is an anticipated, unfortunate consequence of the COVID-19 health crisis that many employers in California will soon lay off a significant quantity of their workforce. Layoffs in the range of 80% are estimated in the retail, hospitality and construction fields.

Heywood G. Friedman

It can be expected that the layoffs will soon be followed by claims for continuous trauma injuries.

Set forth below are strategies and best practices that can be used by employers, claims administrators and defense attorneys to minimize the incidence and exposure from post-layoff CT claims.

By way of background, recall that just because an employee does not report an alleged work-related injury before the effective day of his layoff from work does not automatically render invalid the claim of a cumulative trauma injury.

While the financial turmoil caused by COVID-19 represents a new reason by which an employer might layoff a worker and which may be the cause of a post-termination CT claim, such claim will still be governed by the same post-termination defenses that existed prior to the coronavirus outbreak.

California Labor Code 3600(a)(10) sets forth the statutory framework by which the compensability of a post-term CT claim is determined:

(10)… 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 had 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.

At the employer level we suggest the following:

When a large layoff is contemplated, the employer should consider retaining the responsible human resources personnel and/or supervisors who have knowledge of the work relationship between the employer and the laid-off workers. At a minimum, current contact information should be obtained as to the HR/supervisors, with backup info also obtained as to next of kin, in the event such that personnel were to relocate after their own layoff.

The employer should conduct exit interviews and make a written record of them. If the applicant does not mention an injury, the signed writing denying an injury is typically given great weight at the Workers' Compensation Appeals Board. If an injury is mentioned, the written record should still be signed, a claim form should be presented to the applicant and the applicant should be requested to sign a receipt evidencing that the form was given him/her.

It isn’t necessary that the claim form be completed on the spot; all the labor code requires is for the employer to present the form to the worker. However, the employer needs to get a signed receipt that the form was presented so as to combat a later contention by an applicants' attorney that the applicant reported a claim, but a claim form was never presented.

Consider the use of an outside vendor to provide resume counseling, therapy and other services to the laid-off worker. Not only are these services highly valuable, they demonstrate concern for the worker’s welfare. Offering this resource can assuage the hard feelings that typically arise when a worker is laid off despite acceptable job performance.

As we expect that in the vast majority of COVID-19 post-layoff CT claims the applicant will be represented by legal counsel, we make these additional recommendations:

1. Determine if other employees have filed similar claims and/or hired the same attorney to represent them.
2. Check electronic records for prior claims by the applicant — for apportionment purposes and more.
3. Promptly conduct the applicant’s deposition and obtain all medical records identified.
4. Determine the length of the applicant’s employment and obtain contact information for all individuals knowledgeable about that employment, as they may be potential trial witnesses.
5. For the individual applicant, follow him on social media in addition to traditional sub-rosa, etc. If multiple claims are filed by employees of the same employer, use the same investigator for each claim to minimize the expense and delay caused by duplicative work and needless multiple contacts with the employer and/or administrator as to each and every claim.

Further, and quite critically, refer the claim to experienced legal defense counsel early on. And as with your investigator, use the same defense law firm to avoid the expense caused by unnecessary duplicative work.

Heywood G. Friedman is the founder and managing partner of the Law Offices of Friedman & Bartoumian in Agoura Hills, California.