California: Can a Psychiatric Injury Be Filed “Post-Termination” Where the Employee First Becomes Aware of Her Injury After Her Termination?

California: Can a Psychiatric Injury Be Filed “Post-Termination” Where the Employee First Becomes Aware of Her Injury After Her Termination?

It may not be well known, but both Labor Code Section 3600(a)(10) and Labor Code Section 3208.3(e)(5) contain provisions that exempt their application to those claims where the date of injury is determined in accordance with Labor Code Section 5412.

Labor Code Section 3600(a) states:

“(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:

“(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff” (emphasis added).

Labor Code Section 3208.3(e) provides, in relevant part, as follows:

“(e) Where the claim for compensation is filed after notice of termination of employment 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 actual events of employment were predominant as to all causes combined of the psychiatric injury and one or more of the fol1owing conditions exist:

“(5) Evidence that the date of injury, as specified in Section 5411 or 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff” (emphasis added).

Finally, Labor Code Section 5412 provides as follows:

“The date of injury in cases of occupational diseases or cumulative injuries is 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 his present or prior employment.”

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed the interaction between Labor Code Sections 5412 and 3208.3(e). In Bertha Chan v. Carl Karcher Enterprises, Inc.,, ADJ2760698, 2011 Cal. Wrk. Comp. P.D. LEXIS 469, the applicant sought reconsideration of the findings issued by a workers’ compensation administrative law judge (WCJ) wherein the WCJ found that applicant did not sustain an industrial injury to her psyche and that her claim of injury was barred by Labor Code Section 3208.3(e).

In addressing the applicant’s petition for reconsideration, the panel noted that applicant last worked for defendant on December 18, 2007. The panel further noted that applicant had filed her DWC-l Claim Form on January 18, 2008. The panel observed that apparently applicant did not become aware of her injury until she filed her claim, a date subsequent to her termination. The panel specifically noted:

As used in section 5412, “disability” means either compensable temporary disability or permanent disability. (Chavira v. Worker’s Comp. Appeals Bd. (1991) 235 Cal.App.3d 463 [56 Cal.Comp.Cases 631]; State Compensation Insurance Fund v. Workers’ Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].) In a cumulative trauma case, there is a date of injury where there is a concurrence of disability and knowledge. (See, Chambers v Workers’ Comp. Appeals Bd. (1968) 69 Cal .App.2d 556, 560 [33 Cal.Comp.Cases 722; Kaiser Found. Hosps. v Workers’ Comp. Appeals Bd. (Ochs) (2000) 65 Cal.Comp.Cases 933 (writ den.).)… In this matter, defendant has stated in its Answer that. “No evidence was presented at Trial to the effect that the applicant, prior to her undisputed date of termination of December 26, 2007, both knew, or ought to have known, that she had sustained disability of a psychiatric nature and that such disability was industrially caused.” (Defendant’s Answer. p. 4. in. 16-18.) Defendant also stated that, “In this case, there is no showing the applicant had any knowledge of a possible industrial injury until an Application was filed on January 10, 2008, well after the applicant’s termination.” (Defendant’s Answer. p. 6, in. 18-19.)… Here, the record reflects that applicant did not have the requisite concurrence of knowledge and disability of a potential industrial injury prior to her termination, and section 3208.3(e) cannot apply to bar her claim (emphasis added).

On November 2, 2011, defendant filed a petition for reconsideration having been first aggrieved by the panel’s Opinion and Order Granting Reconsideration and Decision after Reconsideration discussed above. In its petition, defendant argues that the panel has confused the post-termination language of Labor Code Section 3208.3(e) with similar language contained in Labor Code Section 3600(a)(10)(D). Defendant argues that the two sections have a significant difference. That difference being Section 3208.3(e)(5)’s language that the date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff . According to defendant, the evidence in Chan established that applicant’s date of injury was after the effective date of her termination and her claim should be barred.

It will be interesting to see what the WCAB does with defendant’s petition. The outcome may depend on the legal determination as to when the effective date of the termination occurred. In those psychiatric claims where the applicant receives a notice of termination or lay-off, it may behoove the applicant to develop the requisite knowledge of injury and disability subsequent to the notice of but prior to the actual effective date of the termination.

Reminder: Be sure to check the subsequent history of a panel decision before citing to it.

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