ADJ13327834 · March 4, 2024

The parties stipulated to the date of injury as August 14, 2019, and the QME opinion supported the finding of injury AOE/COE on that date.

From the decision · page 1The only issues framed for trial were injury arising out of and occurring in the course of employment (AOE/COE) and defendant's assertion of a post-termination defense pursuant to Labor Code1 section 3600(a)(10). (MOH/SOE, 4/20/22, at p. 2:20-23.) The parties stipulated to an August 14, 2019 date of alleged injury. (Minutes of Hearing and Summary of Evidence (MOH/SOE), 4/20/22, at p. 2:8-9.)

Applicant's medical records dated prior to termination contained evidence of injury, negating the post-termination defense.

From the decision · page 3In relevant part, section 3600 provides that,... [W]here the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:... (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.... (Lab. Code, § 3600(a)(10).)

The parties stipulated to August 14, 2019 as the date of injury to avoid confusion for the Court.

Favours Applicant prevailed

This stipulation fixed the date of injury for litigation purposes, supporting the injury finding.

From the decision · page 2In July 2023, the parties again entered into a Joint Stipulation Regarding Date of Claimed Injury stating: "The parties jointly stipulated that for purposes of litigation of this claim, August 14, 2019 will be used as the date of the alleged injury in order to avoid confusion for the Court...." A record of this stipulation was noted in the September 27, 2023 MOH/SOE on page 2, lines 1 to 3.

Medical records dated November 14, 2019 from Green Cross Medical Clinic documented complaints of injury prior to termination.

Favours Applicant prevailed

This evidence negated the defendant's post-termination defense.

From the decision · page 3In this case, applicant was terminated on February 20, 2020. (Defendant's Exhibit B.) However, a medical record dated November 14, 2019 from Green Cross Medical Clinic document evidence of the injury noting that applicant complained of right knee and arm pain. (Applicant's Exhibit 1, at p. 14.) Therefore, defendant failed to carry its burden of proof for this affirmative defense.

Supports finding of injury arising out of and occurring in the course of employment on 08/14/2019 with objective findings for right shoulder, lumbar spine, and right knee.

The QME opinion supports the finding of injury AOE/COE on the stipulated date of injury.

From the decision · page 7OPINION ON DECISION Based upon applicant's testimony and the medical report(s) of QME DR. FALKINSTEIN, M.D., dated 01/08/2021, which is more persuasive, it is found that applicant sustained injury to his back, right arm and right knee arising out of and occurring in the course of employment on 08/14/2019. The applicant is alleging an injury on 11/14/2019 unloading merchandise from the back of the van, when he was carrying a heavy sack of potatoes, he fell from the back of the van landing on his back and right side on the asphalt feeling immediate pain in the right shoulder right, upper extremity low back, and right knee he did not report the injury and kept working. On page 24 of his report Dr. Falkinstein addresses the inconsistency in the date of injury noting that the initial evaluation by Dr.

Negates the post-termination defense based on evidence of treatment prior to termination.

The QME opinion negates the post-termination defense by confirming treatment prior to termination.

From the decision · page 7OPINION ON DECISION Based upon applicant's testimony and the medical report(s) of QME DR. FALKINSTEIN, M.D., dated 01/08/2021, which is more persuasive, it is found that applicant sustained injury to his back, right arm and right knee arising out of and occurring in the course of employment on 08/14/2019. The applicant is alleging an injury on 11/14/2019 unloading merchandise from the back of the van, when he was carrying a heavy sack of potatoes, he fell from the back of the van landing on his back and right side on the asphalt feeling immediate pain in the right shoulder right, upper extremity low back, and right knee he did not report the injury and kept working. On page 24 of his report Dr. Falkinstein addresses the inconsistency in the date of injury noting that the initial evaluation by Dr.

Labor Code section 3202.5

Preponderance of the evidence standard for burden of proof.

Defendant must prove post-termination defense by preponderance of the evidence.

From the decision · page 2Turning to the remaining issue, defendant bears the burden of proving that applicant's injury is not compensable because applicant filed the claim after termination. (Lab. Code, § 5705.) Defendant must meet this burden by preponderance of the evidence, and this requires "evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth." (Lab. Code, § 3202.5)

Labor Code section 3600(a)(10)

Labor Code section 3600(a)(10) regarding post-termination defense and evidence of injury in medical records prior to termination.

Applicant's medical records prior to termination contain evidence of injury, negating post-termination defense.

From the decision · page 3In relevant part, section 3600 provides that,... [W]here the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:... (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.... (Lab. Code, § 3600(a)(10).)

Medical records from Green Cross Medical Clinic dated November 14, 2019, documented complaints of right knee and arm pain prior to termination.

From the decision · page 3In this case, applicant was terminated on February 20, 2020. (Defendant's Exhibit B.) However, a medical record dated November 14, 2019 from Green Cross Medical Clinic document evidence of the injury noting that applicant complained of right knee and arm pain. (Applicant's Exhibit 1, at p. 14.) Therefore, defendant failed to carry its burden of proof for this affirmative defense.

Applicant's testimony had the ring of truth despite some confusion about exact injury date.

From the decision · page 6Ordinarily, I do not favor findings that I cannot track to a document or exact date. However, the applicant's testimony had the ring of truth to what he told the court. In my Opinion on Decision, I said: