Defending Against Post-Termination Physical Injury Claims

By Jeff Stander, Stander Reubens Thomas Kinsey

There are few aspects of the workers’ compensation scheme that cause greater frustration than post-termination claimed physical injuries. The strategy of attorneys for allegedly injured workers entails advising the Judge, at the time of the MSC, that his/her client gave notice of the injury prior to the termination, that notice of the termination was not given due to job insecurity, or that the allegation of injury is based on a cumulative trauma theory. Many Judges will simply accept one of these excuses in order to encourage settlement.

Employers have a legitimate right to be outraged when a case presenting this scenario is resolved in this fashion. The Legislature, on July 16, 1993, enacted as urgency legislation Labor Code Section 3600(a)(10) which prohibits a compensable finding of any post-termination claim absent fulfillment of the criteria for very limited exceptions. In CJS Co. v WCAB (Fong) (1999) 64 Cal. Comp. Cases 54, the District Court of Appeal stated that the purpose of this statute was “to protect employers and insurers from spurious claims first filed by disgruntled employees after having been fired or laid off.” (See also: Mabe v Mike’s Trucking (1998) 63 Cal. Comp. Cases 1394) Thus, it is the employee’s burden of proving beyond a preponderance of the evidence that one of the exceptions is applicable.

Recently, the WCAB, in Chang v JLS Environmental Services 2018 Cal. Wrk. Comp. P.D. LEXIS 314 issued a decision on this topic that is both consistent with justice and which outlines the methodology to be employed to insure that the Legislature’s intent is achieved.

Mr. Chang was hired by JLS as a plasterer on August 25, 2015. While working for a previous employer, he sustained injury to, and received compensation for, trauma to his neck and back. In fact, he continued to receive medical care for that injury after he commenced working for JLS. On September 25, 2015, he was summoned to his manager’s office and fired for poor job performance. At the time of Trial, Mr. Chang claimed that he injured his right shoulder on September 22, 2015, that he didn’t tell his supervisor of the injury prior to the termination for fear of losing his job, and that, at the time of the termination, he exclaimed to his manager that the only reason that he was being fired was because he sustained an injury to his right shoulder.

In correctly sustaining the Trial Court’s decision that the shoulder injury claim was barred by Labor Code Section 3600(a)(10), the WCAB reinforced the Legislature’s intent and disavowed several arguments asserted by allegedly injured workers’ attorneys.

1. HE SAID/SHE SAID: INSURE THAT YOUR EVIDENCE IS STRONGER

At various points during the course of Trial, Mr. Chang testified that he tried to report the injury prior to the termination, but was ignored by his supervisor; that, despite working in close proximity to his boss during the three day period prior to the termination, he did not report the injury because he was “waiting to see how he felt” and wanted to preserve his job. On the other hand, the supervisor testified in a clear, certain, and concise fashion that no report of injury was made until after the termination was announced. While Mr. Chang’s testimony was filled with contradictions and ambiguity, the employer’s evidence was deemed to constitute substantial value. As such, the Trial Court accepted that version of events pursuant to LeVesque v WCAB (1970) 35 Cal. Comp. Cases 16 and Lamb v WCAB (1974) 39 Cal. Comp. Cases 310. The WCAB properly deferred to the Trial Judge the discretion to make the credibility determination because it had the opportunity to observe the demeanor and non-verbal communications of the witnesses during the course of their testimony. (Bracken v WCAB (1989) 54 Cal. Comp. Cases 349) The importance of pre-trial witness preparation cannot be overemphasized.

2. AVOID ANY ATTEMPT TO EXPAND THE PARAMETERS OF THE EXCEPTIONS

The Legislature clearly stated that the post-termination bar would not apply where the employer had notice of the injury prior to the notice of termination. Contrary to the arguments made by many applicants’ attorneys, prior is not to be equated with “contemporaneous with the termination notice” or “at the first opportunity.”

3. INSURE THAT ALL DISCOVERY IS COMPLETED PRIOR TO FILING A DOR

Mr. Chang was somewhat of a professional applicant, having previously sustained an industrial injury for which he received indemnity and medical care, including a spinal surgery. That valuable information, secured during the course of discovery, was significant because it reflected not only that Mr. Chang was familiar with the workers’ compensation process, but also that he exclusively traumatized his neck and back, without making any reference to his right shoulder. None of the medical data reflected any reference to his right shoulder between September 22, 2015 and the date of his termination. Thus, the medical record exception contained in subsection (B) of Labor Code Section 3600(a)(10) was effectively obliterated.

4. A CUMULATIVE TRAUMA ALLEGATION WILL NOT PRECLUDE INVOCATION OF THIS AFFIRMATIVE DEFENSE

Although most allegedly injured workers’ attorneys, and several Judges, subscribe to the theory that the post-termination defense will not apply to an allegation of cumulative trauma, that belief obscures the Legislature’s intent.

Mr. Chang’s attorney alleged the occurrence of a specific industrial injury. After finding that the post-termination defense barred recovery for the claimed trauma, the WCAB addressed the hypothetical issue of whether the defense would be applicable had the injury been sustained over a continuous period. Subsection (D) of Labor Code Section 3600(a)(10) precludes application of this affirmative defense where the date of injury, as defined by Labor Code Section 5412, is subsequent to the date of the notice of termination. This statute defines date of injury as “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” the employment. Mr. Chang freely admitted that he was familiar with the workers’ compensation process based on his previous case. He also stated his belief that his right shoulder problems, which began three days before the termination, were caused by his job duties. Any argument made by an applicant’s attorney that his/her client was a plasterer, not a doctor, and could not state that the medical condition was caused by the employment should be repudiated: although an allegedly injured worker will not be charged with knowledge that his/her disability is job related without medical advice to that effect, knowledge can be found where the nature of the disability and the employee’s training, intelligence, and qualifications are such that the employee should have recognized the relationship between the known adverse factors involved in the employment and the disability. (See: County of Riverside v WCAB (Sylves) (2017) 82 Cal. Comp. Cases 301 and City of Fresno v WCAB (Johnson) (1985) 50 Cal. Comp. Cases 53)

Relying on the words of Labor Code Section 3600(a)(10), completing all discovery, including deposing the allegedly injured worker, securing all relevant records, and thoroughly preparing the employer’s witnesses for Trial testimony will effectively insulate the employer from the dangers and injustice which the Legislature sought to prevent.