Filing a Workers' Comp Case After Termination From Employment
You may still be entitled to Workers' Compensation Benefits even if you didn't make a claim for an injury until AFTER you were terminated or laid off.
So many people will work through the pain of an injury because they don't want to risk losing their job. Then, it happens, you get terminated, laid-off, furloughed or the company closes its doors.
These cases are known as "Post-Term" cases.
Don’t worry, you can still file a claim for workers compensation benefits.
When you report an injury after receiving a notice of layoff or termination, your employer and/or insurance adjuster may try to tell you that you are barred from receiving workers’ compensation benefits because your claim is being reported “post-termination.” This is usually bully-speak and a misrepresentation of the law.
While it is true that the law (California Labor Code section 3600) states when a claim for workers’ compensation is filed after notice of termination or layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, an individual cannot collect benefits.
However, there are many exceptions.
You are eligible to receive workers’ compensation benefits if:
- Your employer had notice of the injury prior to the notice of termination or layoff;
- Your medical records prior to the notice of termination or layoff, contain evidence of the injury;
- The date of injury is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff; or
- in the case of cumulative trauma, the last date of injury exposure is subsequent to the date of the notice of termination or layoff.
How do you properly give notice to your employer?
Normally you are supposed to complete a DWC-1 claim form; however, sometimes that is not possible. Sometimes, you are unable to complete a DWC-1 form because you are injured and incapacitated, or because your employer simply will not provide you with one.
Your employer has sufficient “notice” if it knew or should have known of your injury, with nothing more. Did your boss or manager see the injury happen? Maybe someone else was injured at the same time and said something.
If you were terminated or laid off following an injury, you may also be a victim of discrimination and retaliation.
Under the law (Labor Code Section 132a) it is unlawful for any employer to discharge (meaning, layoff or terminate) or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for workers’ compensation benefits.
If your employer is found to have engaged in unlawful conduct under Labor Code Section 132a, you may be entitled to reinstatement, and monetary compensation including back pay, penalties, and interest.
Remember, when you are communicating with your employer or insurance adjuster, put it in writing!
Pacific Workers', The Lawyers for Injured Workers' is the leading workers' compensation law firm in Northern California, representing First Responders, Health Care Workers, Delivery Drivers, Restaurant Workers, Retail Workers, Construction Workers in their Fight for Justice against the Insurance Companies.