Home > Defenses, Tactics and Strategy > Cumulative Trauma Claims and the Fired Employee

Cumulative Trauma Claims and the Fired Employee

When an employer-employee relationship ends, the distance between the two is often enough sprinkled with the ashes of a burnt bridge.  Much like high-school dating, the two can sometimes “still be friends,” but generally there is a screaming match, some crying, and a lot of poisoned words, which may or may not include the spilling of secrets.

That being a tale as old as time, the legislature included as a defense to workers’ compensation claims Labor Code section 3600(a)(10), which bars claims made after termination of the employment relationship.

In the case of Jesus Constanza v. The Torrance Co. (a July, 2011 panel decision), the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board had a rather applicant-friendly interpretation of section 3600.  (A special thanks to Arlene Lea of Sacks & Zolonz for providing me with a copy of the panel opinion.)

Applicant, of no relation to this blogger’s favorite Seinfeld character, worked as a waiter for defendant, when he allegedly hurt his back lifting a box of syrup.  He saw a doctor for back pain, but did not miss any time for work or inform his employer.  (It is unclear, from the panel opinion, if the record of the doctor’s visit merely reflected a hurt back or also a description of how the back came about to be hurt.)

As applicant claims, he continued to have increasing back pain until he was fired in February of 2008.  Defendant was prevented by the WCJ and the WCAB from presenting evidence of the reason for the termination of employment, because applicant testified that the reason was for serving tainted food.  I suppose we will never know if there were other reasons…

After finding himself with an abundance of free time, applicant went to a physician who, in that same month, declared that applicant had sustained a cumulative trauma and was temporarily disabled.

The WCJ ruled and the WCAB affirmed that the section 3600(a)(10) defense was not available because applicant became aware that he had an industrial CT injury only after being fired (See the exception under section 3600(a)(10)(D).)

Just to clarify – applicant feels back pain after lifting a box at work, feels increasing back pain from that point while working, then only after being fired for (at the least) serving tainted food, suddenly realizes the work was causing him to sustain injury.  Meanwhile, the defendant was not allowed to prove that applicant had credibility issues.

However, under Labor Code section 5412, “[t]he date of injury [for a CT] is that date upon which the employee first suffered disability … and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his … employment.” (Emphasis added).

It appears that this WCJ and this WCAB panel is content to let the duty of reasonable diligence, and the defense of section 3600(a)(10) endure death by pieces.

The Court of Appeal and the Supreme Court both denied review.

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