Post Termination Denials of Continuous Trauma Claims
From the Desk Of: Geoffrey H. Spencer
Managing Attorney, Santa Ana
The California Supreme Court denied review of a dispute as to whether the Labor Code bars the filing of a cumulative trauma claim by an applicant after being separated from his or her employment.
Labor Code §3600(a)(10) was enacted by the Legislature to bar post-termination claims. However, in our practice, we noted that post-termination cumulative trauma claims have increased dramatically, especially the last two to three years. The Workers' Compensation Insurance Rating Bureau has noted that 40% of all claims are filed post-termination. As such, there has been an ongoing dispute as to whether continuous trauma claims are barred post-termination.
Labor Code §3600(a)(10)
In the case of West Coast Drywall vs. WCAB (Polanco), the applicant worked for West Coast Drywall until June 10, 2011, at which time he was terminated from employment. While an employee, he never claimed any injury or sought medical treatment. After being terminated for yelling at his employer, the applicant then obtained counsel and filed a claim for disability benefits and medical treatment. At trial, the WCJ found the claim barred under Labor Code §3600(a)(10). The applicant appealed to the WCAB, which reversed the decision on the grounds that the defendant failed to meet its burden of proving disability pursuant to Labor Code §5412.
Labor Code §5412 states "The date of injury in cases of occupational disease or cumulative injuries is the 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 (or her) present or prior employment."
The Appeals Board in Polanco interpreted Labor Code §3600(a)(10)(D) as to prevent all post-termination denials unless the employee has contemporaneous medical records showing compensable permanent disability or lost time due to the condition before termination. The Board ruled, that unless the applicant has medical records showing permanent disability or lost time due to disability (providing him or her with knowledge of a continuous trauma claim), then a defendant cannot assert Labor Code §3600(a)(10). If records of that nature did exist, a post-termination defense would not be available.
The defendant filed a Petition for Writ of Review to the Court of Appeals, which was denied. The defendant then filed a Petition for Writ of Review with the California Supreme Court, which denied review as well. In its petition to the California Supreme Court, the defendant argued that the Legislature intended to eliminate post-termination claims when there is no evidence of injury before employment was terminated. If the logic of the WCAB is followed, the defendant argued there would never be a Statute of Limitations for cumulative trauma claims. The defendant also argued that a reasonable test should be used for the applicant as to whether they acknowledge their cumulative trauma injury was work-related. The defendant felt the same could be addressed without any medical evidence. In this case, the applicant had modified his job duties due to symptoms of injury caused by his employment.
The Appeals Board contends, as evidenced by this case, the applicant has no responsibility to file a claim until there is medical determination of compensable disability. Absent change by the Legislature, a continuous trauma claim cannot be defended as post-termination.
This case is consistent with what most of us hear at the WCAB every day. At our firm, we feel we can defeat continuous trauma claims with proper discovery. It starts with a thorough deposition of the applicant, obtaining all employment and prior history. In addition, we have to work with the employer to address whether an applicant did specific work that would result in an orthopedic cumulative trauma. For example, a Job Analysis or a detailed Job Description could be obtained showing the applicant's job lacked heavy lifting or that all of the heavy lifting was done by other employees at applicant's instruction. Another option is being able to provide a Panel Qualified Medical Examiner or Agreed Medical Examiner, with a work history other than what was given to them by the applicant.
We are equipped to defend these types of claims. Please contact our office for more information.