Noe Morales claims he sustained an injury on March 23, 2011 while employed by FMF Racing. Applicant testified that he hurt his elbow at work when he was working with a hammer and missed hitting a part, but the hammer kept going and he felt his elbow pop. Though he acknowledged that he was aware of the company policy to report injuries immediately, he did not report his injury at work that day. Because his arm hurt and was swollen, he did not go to work the following day. However, he did not seek medical treatment, testifying that he was waiting for his employer to check it out and send him to a clinic. He testified that he called into work the next morning and left a message on an answering machine to report that he hurt his elbow and was not coming into work. The employer denies knowledge any such phone call.
He returned to work around 6:00 am on the third day, still having pain in his right elbow. Though he testified that he did not seek medical treatment the previous day because he was waiting to inform his employer and be sent to a medical clinic, he did not tell his supervisor, Mr. Raul Ruiz, that he had injured his elbow on March 23, 2011. He did not tell anyone at the company why he missed work the day before, because he had already left the message. He did not confirm with anyone whether the message he left the day before had been received. He worked until 2:30 in the afternoon, when he was called into the office for a meeting with Mr. Beck, the Human Resource Manager, who told him that he was being terminated because he did not come into work the day before. Applicant testified that he offered to show them his cell phone to show that he had called in on March 24, but they did not want to see it. Applicant acknowledged that he had been repeatedly written up for being tardy or absent. He was given warnings and placed on probation in 2006, 2008 and 2010. He was suspended from work for one week on December 27, 2010, for chronic absenteeism. According to Mr. Beck, applicant begged for his job back. and when told he could not have it back, applicant reported the injury to his right elbow.
The essential question in this case is whether the evidence demonstrates that the employer had knowledge of applicant’s claim of injury prior to, or subsequent to, applicant’s notice of termination. While initially concluding in a Findings and Order issued July 30, 2012, that applicant’s claim is barred, the WCJ reversed himself and issued the instant determination in which he found the prior notice requirement was satisfied by the injured worker’s report of his injury contemporaneously with the notice of termination. The employer filed a petition for reconsideration which was granted, and the WCAB reversed the finding in the panel decision of Noe Morales v FMF Racing and Westland Insurance.
Labor Code section 3600(a)(10) provides that no compensation shall be paid for an injury that occurs prior to a notice of termination unless applicant establishes that the employer received notice of the injury prior to the notice of termination, or there are medical records that contain evidence of the injury prior to the notice of termination. Here, in contrast to Dover v. Fresh Start Bakeries, Inc. (2006) Cal.Wkr. Comp. P.D. LEXIS 53, wherein the bar of Section 3600(a)(IO) was held inapplicable where the injured worker gave notice of his injury at his first opportunity, which was contemporaneous with his notice of termination, applicant’s delay in notifying his supervisor of his injury was not caused by his supervisor’s absence from work. There is no evidence that applicant was incapable of reporting his injury on March 23, 201. In fact, he testified that he was aware of his employer’s policy that he should report his injury immediately. Applicant has offered no reason for his failure to comply with this policy on March 23, 2011.
On these facts, the WCAB found that the employer’s affirmative defense of a post-termination claim should be sustained. Accordingly, the Panel granted defendant’s petition for reconsideration and amended the Joint Findings and Award to find applicant’s claim of injury on March 23, 2011 is barred under Labor Code 19 section 3600(a)(l0).