Overcoming the Post Termination Defense In California workers compensation Practice
If an industrial injury claim is filed on any date following the date the employee was terminated the employer may assert the post-termination defense under Labor Code sections 3600, and 3208. The post termination defense is treated by many judges as a statute of limitations.
What If the Employer Had Knowledge of The Injury Prior to Date of termination?Labor Code section 5401(a) knowledge of the injury by the employer overcomes the post-termination defense.
What if the Injured Worker Commenced Medical Treatment Prior to his/her Date of Termination?The post-termination defense cannot be successfully asserted against an injured worker who has commenced medical treatment prior to the date of termination.
What If the Employee Notified the Employer of the Industrial Injury Prior to the Date of Termination?An injured worker who can prove he/she notified the employer of the industrial injury prior to the date of termination will not be barred from pursuing his/her injury claim by the post-termination defense.