California Labor Code §3600(a)(10) provides employers and insurers a valuable defense when workers’ compensation claims are filed after an employee has received notice of termination or layoff. However, this post-termination defense is not absolute. Cumulative trauma (CT) claims, particularly those hinging on the “date of injury” under Labor Code §5412, can pose unique challenges. Below is an overview of the defense, how the “CT exception” works, and strategies defense attorneys and claims adjusters can employ to overcome it.
The Post-Termination Defense: Key Points
Basic Rule
Under Labor Code §3600(a)(10), a post-termination defense bars compensation for injuries alleged to have occurred prior to notice of termination unless the employee demonstrates one or more of the following:
- The employer had notice of the injury prior to the notice of termination.
- The employee’s existing medical records (prior to termination notice) contain evidence of the injury.
- For a specific injury, the date of injury (per Labor Code §5411) falls after the notice of termination but before the actual termination date.
- For a cumulative trauma or occupational disease, the date of injury (per Labor Code §5412) is subsequent to the notice of termination.
When an employee can satisfy any of these exceptions, the post-termination defense may be invalidated.
The Cumulative Trauma “Exception”
For cumulative trauma (CT) claims, the date of injury is established under Labor Code §5412, which defines it as the date the employee first suffers disability and knows, or reasonably should know, that the disability is work-related. If this date is determined to be after the employee receives notice of termination or layoff, the employee can often bypass the post-termination defense.
Why CT Claims Present Challenges
- Delayed Onset: Symptoms may manifest slowly, making it difficult to prove (or disprove) the employee’s knowledge of a work-related cause before termination.
- Medical Complexity: Multiple factors (including prior employers or non-work activities) may contribute to a CT injury, complicating the date of injury analysis.
Strategies to Overcome the CT Exception
1. Conduct a Thorough Investigation
- Timeline Analysis: Pin down when the employee first complained of symptoms, received treatment, or restricted duties. Compare these dates against the notice of termination or layoff.
- Medical Records Review: Look for earlier signs of nonindustrial health issues or contradictory reports that may undercut the claim that the CT injury began or was recognized post-termination.
- Witness Statements: Interview supervisors, co-workers, and HR staff to uncover any prior mentions of pain or limitations. This can establish that the employer had no notice—and the employee had no disability or awareness—before termination.
2. Challenge the Employee’s Knowledge
- Expert Medical Opinion: Use a Qualified Medical Evaluator (QME) or Agreed Medical Evaluator (AME) to review the chronology of symptoms. If the doctor can credibly determine the disability and knowledge occurred before termination—or that other factors caused the condition—this undermines the CT exception.
- Constructive vs. Actual Knowledge: Emphasize any delay in reporting symptoms. If a reasonable person would have suspected a work-related issue earlier, the employer can argue that the “date of injury” should be placed before the termination notice.
3. Emphasize Pre-Existing Conditions
- Apportionment: If the employee had underlying medical conditions or injuries from prior employment, highlight these to show that any disability may not have been solely industrial, or that it did not arise when claimed.
- Burden of Proof: Remember, the employee must demonstrate by a preponderance of the evidence that the post-termination exception applies. Thoroughly contest each factual and medical assumption supporting the claimed date of injury.
4. Maintain Accurate Records
- Documentation Protocols: Employers and adjusters should keep detailed records of injury reports, modified duty forms, and any relevant correspondence. This data can help pinpoint whether the CT claim truly arose after termination.
- Consistency Checks: Compare all medical documents, HR files, and statements for inconsistencies. Any contradictions in the employee’s reporting can be critical in defeating the CT exception.
Legal Disclaimer
This article is intended for informational purposes only and does not constitute legal advice. Reading or responding to this content does not create an attorney-client relationship. Consult qualified legal counsel for advice tailored to your specific situation.
How We Can Assist
At Yrulegui & Roberts, our workers’ compensation defense attorneys have extensive experience navigating post-termination disputes and complex cumulative trauma claims. We work closely with employers, insurance carriers, and claims administrators to challenge the CT exception effectively, minimize liabilities, and protect our clients’ interests. For more information, please visit www.rjylaw.com.
