Even a terminated employee may, in certain situations, have the right to file a workers’ compensation claim. Though rare, this kind of claim can arise when there is a delay in the manifestation of an injury or illness, and in other situations as well.
Not surprisingly, post-termination claims can be tricky to process because memories may have long faded since the original incident occurred.
Fortunately, the California Labor Code imposes restrictions on post-termination workers’ comp claims to help streamline the resolution of these claims.
Rules for Post-Termination Workers’ Comp
Labor Code Section 3600(a)(10), which applies to all injuries except psychiatric injuries, permits an injured or ill employee to receive workers’ comp after being terminated or laid off only when the employee demonstrates by a preponderance of the evidence (meaning
more likely than not) that one or more of the following conditions apply:
1. The employer had notice of the injury before the notice of termination or layoff.
2. The employee’s medical records, existing before the notice of termination or layoff, contain evidence of the injury.
3. The date of the injury is after the date of the notice of termination or layoff but before the effective date of the termination or layoff.
4. The date of the injury is subsequent to the date of the notice of termination or layoff.
Your complete reference guide to workers’ comp in California—find out more!
Work-Related Psychiatric Injuries
If a terminated or laid-off employee suffers from a work-related psychiatric injury, the employee, again, may receive workers’ comp benefits only after meeting certain criteria.
In particular, the Labor Code specifies that no compensation will be paid unless the employee demonstrates by a preponderance of the evidence that actual events of
employment predominantly caused the psychiatric injury and one or more of the following conditions exist:
1. Sudden and extraordinary events of employment caused the injury.
2. The employer had proper notice of the psychiatric injury before the notice of termination or layoff.
3. The employee’s medical records existing before notice of termination or layoff contain evidence of treatment of the psychiatric injury.
4. The psychiatric injury is determined by a jury or administrative, regulatory, or judiciary body to be the result of workplace harassment.
5. There is evidence that the date of injury was after the date of the notice of termination or layoff but before the effective date of the termination or layoff.
Like current employees who file psychiatric claims for workplace injuries, a terminated employee is not entitled to benefits for a psychiatric injury if it was substantially caused by a lawful, nondiscriminatory, good faith personnel action. A terminated employee asserting a psychiatric injury claim has the responsibility of proving that his or her psychiatric injury does not fall within this restriction.
Tomorrow, we’ll give you 4 tips for handling workers’ comp claims made by terminated employees.
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Yet another reason to keep detailed records of every workplace injury. As your headline implies, you can’t just forget about terminated employees–they can come back to bite you. So to speak.
Yet another reason to keep detailed records of every workplace injury. As your headline implies, you can’t just forget about terminated employees–they can come back to bite you. So to speak.