An employee who is laid off or fired may be denied workers’ compensation benefits by the employer if an injury is not reported before the employee is terminated. The method used by the employer to deny benefits in this situation is called the “post-termination defense“.
There are exceptions to the post-termination defense, and the employee can still file a workers compensation claim if he or she can show by a preponderance of the evidence that:
- there are medical records serving as evidence of the injury prior to the termination
- the employer knows about the injury
- the injury is after the notice of layoff but before the last day of performing job duties
- the former employee was not aware he or she had an injury before termination
There are special rules for filing a psychiatric work injury claim after being fired. The employee can get around the exception for psychiatric injuries when:
- the injury was a sudden and extraordinary event
- the employer had notice of the injury prior to the termination
- the employee’s medical records show the injury prior to termination
- there is a finding of workplace harassment prior to termination
- the date of injury is between the notice date and the last day worked1
When the employer or insurance company uses a post-termination defense, it will send the employee a letter denying the claim and stating that the denial is due to the employee being separated from the company prior to filing the workers’ compensation claim.
An employee may have to request a hearing and trial to prove a work injury and get benefits.
When an employee quits, an employer cannot use the post-termination defense to deny benefits.
In the article, our California labor and employment law attorneys will explain:
- 1. What is a post-termination defense?
- 2. What are post-termination claims for psychiatric injury?
- 3. What are actions related to a post-termination claim?
- 4. Can you collect workers comp after being fired in California?
An injured worker would normally report and file a claim for California workers’ compensation benefits while he or she is still working. However, employees are sometimes fired or laid off. This can affect the ability of an employee to claim benefits.
Benefits may be denied for an employee who reports a work-related injury after he or she has been fired or notified that he or she will be fired. This is referred to as the post-termination defense because an employer can use it to deny the injured worker benefits.
The post-termination rule exists to prevent employees from retaliating against an employer for being fired by filing a false claim.
For special situations related to post-termination psychiatric claims, see below.
Example: Howard is fired from his job as a teacher. The next day he files a claim saying he had a specific injury at work three days before he was fired.
The insurance company will deny benefits because Howard filed his specific injury claim after he was fired.
Even if the employer uses the post-termination defense, the injured worker can still prove he or she has a valid work injury and claim benefits if he or she can show:
- the employer knew about the injury prior to the effective date of the termination
- the employee has medical records existing prior to termination that show injury
- the specific injury occurs after notice of termination but before the last day of work
- it is a cumulative trauma injury, and the employee is not aware he or she has an injury until after he or she is terminated2
Each of the exceptions can prove that the employee has a California workers’ compensation injury and is not just trying to get back at the employer for firing him or her.
An employee should notify an employer when he or she suffers an injury.3 4 An employee can notify the employer in writing or tell his or her supervisor.
A supervisor can also have knowledge of an employee’s injury without the employee telling him or her. For instance, a supervisor seeing an employee limping may be enough.5
Whether an employee reported an injury or not may come down to the credibility of the employee and the supervisor.6
An employee who tells the employer of an injury immediately after he or she is being let go is too late to file a claim.7 An exception to this is if the first time the employee has an opportunity to report the injury is when he or she is being let go.8
Example: Justin works for a construction company doing drywall. One day at work, he injures his lower back and tells his immediate supervisor, Carlos. Carlos doesn’t tell anyone else or give Justin a claim form.
Two weeks later Justin is laid off.
Justin files a claim for workers’ compensation benefits. The employer says it will not pay benefits because Justin did not file a claim before he was terminated.
Justin can testify that he told Carlos of his injury before he was terminated and got benefits.
An employee who has pre-termination medical records of his or her injury can claim workers’ compensation benefits.9
The records can be from any private doctor, hospital, or urgent care facility. They do not have to be from a workers’ compensation doctor in the California Medical Provider Network.
These are not initially considered workers’ compensation medical treatment records as they occur before a claim form is filed and before treatment would be subject to Utilization Review.
Example: Eric slips and falls at work and injures his back. No one sees it, and he doesn’t tell anyone at work. But Eric goes to an Urgent Care after work for his injury.
The next week Eric is terminated.
After he is terminated, Eric tells his employer that he injured his back at work. The employer says it will not pay benefits because it is a post-termination claim.
Eric can show the urgent care medical records from before he was terminated to get benefits.
An insurance company will deny a specific injury if it happens to an employee:
- prior to being told he or she is being laid off; and
- if he or she does not report it before being told about being let go
An employee that is told he or she is being laid off can file a claim for a specific injury:
- if it happens between being told of the layoff and the last day of work
- he or she reports it before the last day of work
Example: Anita is notified that she will be laid off in one week. On her last day of work, she twists her knee walking down some stairs. She immediately tells her employer.
Anita can get workers’ compensation benefits because she suffers a specific injury between the notice of layoff and the last day of work and because she notifies her employer before her last day.
Cumulative trauma is a series of repetitive events that result in an occupational injury.11 It is a culmination of insignificant movements that by themselves may not cause any harm, but together the result is an injury.12
Pursuant to Labor Code 5412, the dates of injury for a cumulative trauma start from the time the injured worker is doing the work that is causing the injury and end when the injured worker is aware – or should know through reasonable diligence – that his or her work is the cause.
An injured worker may not know he or she has a work injury until after he or she is terminated.13 Many workers do not see a doctor and get diagnosed under after getting terminated. This means the employer cannot use the post-termination defense.
The employee would have to be aware of the cumulative injury before he or she is let go, in order for the employer to be able to claim the post-termination defense.
Example: Carrie works in a restaurant as a chef. She started working on Jan. 1, 2015. She has had pain in her hands and elbows for months. She does not know the cause.
The restaurant closes on March 23rd, and Carrie is laid off.
On April 12th, Carrie goes to her doctor and is told that the pain in her hands and elbows is from activities at work. Carrie files a cumulative trauma claim for workers’ compensation benefits to take effect from January 1, 2015 to April 12, 2018.
Carrie first became aware of her injury on April 12th, so this becomes the end date of her cumulative trauma, which is after her March 23rd termination.
Carrie can claim workers’ compensation benefits because she wasn’t aware she had a work injury when she was laid off.
Note that cumulative trauma cases require extra discovery (evidence-gathering), including a deposition of the worker to determine if and when he/she saw doctors prior to the date of termination. There will also be an evaluation done to determine whether the worker actually sustained an industrial injury and the timeline of any cumulative trauma.
There are special rules when an employee tries to file a claim for a psychiatric work injury after being told he or she is being let go.
To file a psychiatric claim after a notice of termination for an injury that occurred before the notice of termination, an employee must show:
- the psychiatric occurred during a sudden and extraordinary event of employment
- the employer had notice prior to the notice of termination or layoff
- the employee has medical records showing the injury occurred prior to notice of termination
- there is a finding of sexual or racial harassment prior to termination
- the date of injury is between the notice date and the effective date of termination14
Sudden and extraordinary events are unusual, uncommon, and unexpected.15 Normally a psychiatric injury will be denied if it’s reported after the injured worker is told he or she is being fired.
But a sudden and extraordinary event is by definition uncommon. It is less likely an employee is filing a claim to get back at the employer for firing him or her.
Example: Dave works in a factory. There is an explosion at the factory. Dave is not injured but sees several of his coworkers severely injured or killed.
The next day he is notified he will be laid off in three weeks. Dave files a psychiatric claim.
The employer denies Dave benefits because his psychiatric injury is after the notice of his layoff.
Dave can claim that the event that caused his psychiatric injury is a sudden and extraordinary event and he can still claim benefits.
An employer that knows about an employee’s psychiatric injury before firing the employee must provide benefits.
Example: Dawson works in sales and tells his supervisor that the stress from work is causing him anxiety. The supervisor tells Dawson to try to think more positively and never gives Dawson a claim form.
Dawson is laid off six weeks later. He files a claim.
The supervisor had knowledge of Dawson’s injury before Dawson was terminated.
The insurance company will have to provide benefits.
An employee who has psychiatric records before being told that he or she is being fired can file a claim for workers’ compensation benefits.16
Example: Julie goes to a therapist because she is depressed from stress at work. Several weeks later, Julie is fired.
Julie files a claim for workers’ compensation benefits. She can use the records from her therapist to show that she had a psychiatric injury before she was fired.
There is an exception to a post-termination defense for any sexual harassment or racial harassment that happens to an employee between the notice of layoff and the last day he or she worked. Neither sexual harassment nor racial harassment is tolerated in California at work at any time.
Example: Sara is sexually harassed by a supervisor but does not tell anyone. Several days later, she is notified that she will be laid off in two weeks.
Sara files a psychiatric claim. The employer denies the claim because it occurs after her notice of layoff.
Sara can claim her psychiatric injury was due to sexual harassment to claim benefits.
An employee can claim a psychiatric injury if he or she can show that the date of injury is after the date he or she is told of the layoff but before the last day he or she works.17
Example: Martin is told he will be laid off in one month. During that month Martin has to do the work of three people and help close the business. He suffers severe stress and anxiety.
Martin files a psychiatric claim. Since the date of injury is after he was told he was being laid off but before his last day of work, he has a valid claim. The employer cannot use the post-termination defense.
3. What are actions related to a post-termination claim?
When there is a post-termination defense, the insurance company will send the injured worker a letter denying benefits. The letter will state that the reason for the denial is that the injury is reported post-termination.
If an employee can prove he or she is being terminated for filing a workers’ compensation claim, he or she can file an additional claim for wrongful termination.
There is no post-termination defense for the employer if an employee files a claim after he or she quits the job.18
If an employee is fired, he or she may falsely claim a work injury to get back at the employer or to get a source of income. But if an employee quits, he or she is unlikely to want to get back at the employer.
In this situation, the employer has to provide benefits unless there is another reason to deny the claim.
Example: Erin works as a retail clerk. She quits her job to focus on school. Several weeks later she notices that the back pain she had from one day at work stocking heavy merchandise has not gone away.
Erin files a workers’ compensation claim. The employer cannot use the post-termination defense to deny the claim because Erin was not terminated, but rather, she quit her job.
Many injured workers who file post-termination claims still are able to obtain benefits. A California injured worker should file a claim even if it is after he or she is terminated.
Many insurance companies will deny claims based on incorrect post-termination defenses. This denial should not prevent an injured worker from pursuing benefits.
Moreover, a dishonest employer may fire an employee who claims an injury or lie to the insurance company about the employee reporting the injury.
The exceptions to the employer’s post-termination defense protect injured employees. Also see our article on, Can you collect workers’ comp after being fired?
For further help…
For help with filing a workers’ compensation claim in California, completing workers comp forms or appealing a denial of benefits, contact us. Our firm helps police officers, firefighters and other workers to get compensation for their job-related injuries in California.
- Cal. Lab. Code § 3208.3(e).
- Cal. Lab. Code § 3600(a)(10).
- Cal. Lab. Code § 5400.
- Cal. Lab. Code § 5402.
- Molter v. Advantage Resourcing, 2014 Cal. Wrk. Comp. P.D. LEXIS 129.
- Cisneros v. Jonathan Louis Int’l, 2014 Cal. Wrk. Comp. P.D. LEXIS 51.
- Morales v. FMF Racing, 2013 Cal. Wrk. Comp. P.D. LEXIS 22.
- Dover v. Fresh Start Bakeries, 2006 Cal. Wrk. Comp. P.D. LEXIS 53.
- North County Transit District v. WCAB (1996)61 Cal. Comp. Cases 727.
- Cal. Lab. Code § 3208.1(a).
- Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal. App. 4th 227, 234.
- Chavez v. Workmen’s Comp. Appeals Bd. (1973) 31 Cal. App. 3d 5, 11.
- Smith v. City of Berkeley, 2014 Cal. Wrk. Comp. P.D. LEXIS 275.
- Cal. Labor Code section 3208.3(e).
- Lira v. Premium Packing, PSI, 2015 Cal. Wrk. Comp. P.D. LEXIS 299.
- Country Villa West v. WCAB (1998) 63 Cal. Comp. Cases 435.
- Chan v. Travelers Insurance, 2012 Cal. Wrk. Comp. P.D. LEXIS 117.
- Golden Eagle Insurance Company v. WCAB (1999) 64 Cal. Comp. Cases 1403.