Can I file a workers' compensation claim after I've been terminated/laid off in California?

By Hope Echiverri Ranoa, Esq. & Anthony Remo Luna, Esq.

Short answer: Yes.  But, it’s not straightforward.  It’s loaded with many potential pitfalls for the injured worker including, but not limited to, statute of limitations issues.

In California, Labor Code Section 3600 governs the filing of workers’ compensation claims, and whether employees are entitled to workers’ compensation benefits as a result of an injury sustained at work or due to environmental working conditions. 

Generally, a workers’ compensation claim filed post termination/layoff will fail, even if the injury occurred prior to notice of the termination, unless certain conditions are met. 

California Labor Code Section 3600(a)(10) enumerates the different exceptions to this general rule:

“(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:

(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, 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.”

Evidence of Injury Found in Employee’s Medical Records - Exception

One of the most commonly used exceptions to this bar against post-termination/layoff filings is discussed above in Labor Code 3600(a)(10)(B).

In this type of situation, an employee will have obtained medical treatment for an injury he/she sustained at work (or as a result of working conditions) prior to the notice of termination/layoff.  This treatment could consist of a single or multiple medical visits, so long as it was conducted by a licensed medical provider (e.g. an MD, DO, chiropractor or emergency room) and memorialized by the medical provider in the employee’s medical chart.  There must be independent, unbiased medical documentation of the medical visit/treatment to substantiate that the visit/treatment took place prior to the termination/layoff notice.  In addition, since post-termination/layoff workers’ compensation claim filings typically involve older injuries, it’s very important an injured worker examine his/her claimed injury (or cumulative trauma injury) to determine if the “date of injury” occurred within one (1) year of the filing of the claim.  There is a one-year statute of limitation on California workers’ compensation claim filings, although what constitutes a “date of injury” can be fluid and highly depends on the specific facts of the case.

If you are considering pursuing a post-termination/layoff workers’ compensation claim, it is highly recommended that you consult with a workers’ compensation attorney right away.  This is a complicated area of law and is loaded with potential pitfalls that only a skilled attorney can help you navigate.  Most California workers’ compensation attorneys (who represent injured workers) can be hired on a contingency basis and offer free consultations, including our firm.

Contact us now to schedule your free initial consultation!

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