A WCAB panel rescinded a trial judge’s award to an automobile salesman who after he was terminated claimed he had previously injured his back when a chair rolled out from under him while he was sitting down. The employer raised the “post-termination defense.” There was no question the applicant first filed the claim after he was terminated.
The judge nevertheless awarded benefits relying on two exceptions to the “post-termination defense.” First, the judge noted that a month prior to the alleged injury date the applicant had seen a doctor for neck pain, who sent him to a physical therapist. The PT noted a gradual onset of pain over one year progressively worsening. To the judge, this satisfied the exception found in section 3600(a)(10)(B): “The employee’s medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.”
Secondly, the applicant testified at trial that a co-worker and his supervisor had both witnessed the alleged injury. Both those individuals testified they did not recall any such event. The judge believed the applicant and relied on a second exception found in section 3600(a)(10)(A): “The employer has notice of the injury…prior to the notice of termination or layoff.”
Remarkably, the WCAB panel reversed the judge and ordered the applicant to “take nothing,” and the Court of Appeal denied the applicant’s Petition for Writ of Review. The WCAB explained once the “post-termination defense” is raised, the applicant carries the burden of proof by a preponderance of the evidence to prove one of the exceptions. It is not enough for the applicant to present credible evidence. Instead, the applicant has the carry the burden of presenting the most convincing evidence, which he did not do in this case.
For example, the WCAB observed medical records need to show more than just prior treatment to the same region of the body, and instead need to “contain evidence of the injury,” like mentioning a fall at work. This case, Bonet v. Honda of Oakland, is significant for confirming that the applicant’s burden of proof in these cases has real meaning.