Steps to Avoid the Post-Termination Defense

Sunday, April 11, 2004 | 0

There are often times when an injury is sustained and for one reason or another (perhaps intentionally or ignorantly), the fact of injury is either ignored by the employer (so there is lack of documentation of same) or the worker doesn't think the injury is serious and continues working, albeit at a less physically demanding pace. Then the injured worker is terminated...

In California, and many other states, the rules for proving up an industrial injury after termination are different than if you were still employed. Called "post-termination cases," much of whether or not compensability will be found in the injured worker's favor is dependent on documentation.

In California, non-psychiatric post-termination cases are governed by Labor Code section 3600(a)(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, 44955.6, 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.

"Notice" and "medical records" are in bold in the above quote to demonstrate that the code itself is biased towards documentation.

One of the responses in the Injured Worker Forum post to the post-termination question focused on the "proof" aspects of 3600(a)(10):

"As you know, post-termination applies only where the injury is not reported prior to termination. Your boyfriend DID report it. Of course, whether he did report it will be an issue of proof. Who did he report it to? And is that person now denying it? Were there any witnesses to his injury, or to his reporting it, or asking for a claim form?
"...
"Of course any thing you have that supports your assertion that it was reported will help. Did you document things along the way? Did you call Oregon from home, and therefore have the telephone bill to show when you reported it to Oregon? Can anyone back him up that he was only driving when the office was moved, etc.? It may all help."

The point is that there is a different burden of proof when file a claim of injury after you have been terminated.

It is also important to understand how this statutory exception to the general liberal rules in favor of finding injury came to be.

The post-termination clause came about in the early 1990's work comp reform efforts. Complaints from the business lobby at that time, supported by various studies, were that when a mass plant lay-off occurred, there would be a host of workers' compensation claims made that management had previously no knowledge of. Consequently, businesses were not able to properly manage mass lay-offs, which would cost the company more than they had factored into their projections for turning a bad business around during difficult economic times.

Of course, as with many well-intentioned legal changes, the effect now has been to deny benefits to legitimately injured workers when unscrupulous employers don't want to have a claim against their record. These bad employers will resist documentation of the injury, then fire the injured worker a short time later. The injured worker then has the burden of proving the injury.

Here are the practical tips:

1. When an injury occurs, see a doctor regardless of how minor you believe it to be. Make sure you keep the doctor's bill, or some other evidence that you saw a doctor, even a computer date book entry, that you can produce later.

2. Be sure to demand a claim form from your employer. They cannot deny you a claim form. It is not up to the employer to decide whether or not an injury occurred. It is their legal obligation to provide you with a claim form upon request. Any refusal to do should be documented. Present the employer with a "memorandum" reflecting that you had an injury, reported it, and that you were refused a claim form.

3. As indicated in the quote above, think of other evidence that may exist that will assist in substantiating your claim - such as phone records.

4. Were there witnesses to either the accident or the reporting of the accident? Make sure you jot down their names as they may need to testify later.

5. When in doubt, hire a lawyer. Much ado has been made recently about the litigiousness of work comp, but quite a bit of litigation concerns the compensability of claims, and whether an injury occurred under legal definitions. A good lawyer will know what documentation to get, where it is, and how to present it.

As with all legal problems, documentation is your friend. When in doubt, document. Even little notes in your own handwriting can have a profound effect on whether you receive benefits in a timely manner or not.

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.