Category Archives: 132a

No Presumption of 132a Discrimination for Failure to Accommodate Restrictions

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California Labor Code section 132a prohibits discrimination against employees for their industrial injuries… not news, I know.

In the recent panel case of Craig Gonsalves v. United Parcel Service, applicant sustained an injury while employed as a delivery driver for UPS and, in addition to his case-in-chief, which was resolved by Compromise and Release, made claims of three instances of discrimination on the part of the employer.

The first was that Mr. Gonsalves was fired in 1997.  This was for an unauthorized leave of absence – his treating physician had released him to work but Mr. Gonsalves decided not to deliver on his obligations to go back to work.  (Get it? Delivery driver… deliver…)  The workers’ compensation Judge found no support for a claim of discrimination in this instance, but found instead that “[i]t would appear … that that termination arose from necessities of doing business, and I find no evidence to the contrary.”

After applicant’s complaints, some based on additional medical evidence, defendant rescinded the termination notice, but then provided another termination notice because of the work restrictions imposed by his treating physician.  The work restrictions required applicant to work no more than eight hours a day for two weeks, and apparently UPS was unable to accommodate this as UPS drivers tend to work ten-hour days or more.

This time, the WCJ found UPS’s position less than persuasive, reasoning that UPS is a “large, national employer with considerable resources, and it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days.”  Finding no basis for a business necessity defense, the WCJ found that the employer did violate Labor Code section 132a in this instance.

Now, my dear beloved readers know that their humble blogger is never inclined to agree with any decision that disfavors the defense, but in this instance, the WCJ has a legitimate point.  What UPS should have done, and what it apparently did not do in this case, was show that such an accommodation would be an undue burden.

Basically, it would need to show that in a business model that requires 10-12 hour delivery routes, it would be impractical to assign a different driver for just 2-4 hours for 10 days, and UPS would understandably have a standing policy against such accommodations – everyone would want one.  After all, even UPS’s website says it delivers between 9 in the morning and 7 in the evening, so 20% of the packages would have to be delivered the next day or later based on a 9 to 5 schedule.

The Workers’ Compensation Appeals Board reversed, however, reasoning that: “[t]he WCJ’s assessment that ‘it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days’ is speculative and not supported by evidence.”

Additionally, applicant failed to carry his burden under Lauher to show that he was singled out for disparate treatment because of the industrial injury.  Presumably, Mr. Gonsalves would have to show that his co-worker Jack, who hurt his back on a camping trip, was provided an eight-hour delivery route.

132a Claim Fails Because Employee Was Being a Jerk

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The end of a business relationship can be a nasty event – and when all the stops are pulled, accusations of discrimination often fly if there is even a hint of a workers’ comp claim in the air.

Labor Code section 132a, which governs claims of industrial-injury-based discrimination, is often invoked when the following sequence of events occurs:

1)      Employee is employed;

2)      Employee sustains an industrial injury;

3)      Employee is no longer employed.

Where’s the discrimination?  It’s not always there.  In the event of a completely baseless 132a claim, the employer can recoup the time and expense wasted defending the frivolous action by filing a malicious prosecution claim in civil court.

Often enough, the story is one of a bitter employee fired for reasons unrelated to any injury, as was the case in John Piechota v. SEI Information Technology (a November, 2011 panel decision recently denied review by the Court of Appeal).

Applicant was employed as an information technology consultant and, while flying on business, sustained injury to his left knee roughly a month after being hired.  He saw a doctor for this injury but the doctor prescribed no work restrictions.  A month later, while on a connecting flight (employer apparently refused to authorize a direct flight or private corporate jet) applicant re-injured his left knee and this time got work restrictions prohibiting travel for three weeks.

Applicant, at the time, was holding on to a $2,400 laptop for his employer which the employer had paid for.  When his employer asked for the laptop back, he refused, reasoning that he had e-mailed all pertinent information to a co-worker, so the employer didn’t really “need” the laptop.

After several rebuffed attempts to get the laptop back, including offering to go to applicant’s house to pick it up, the employer decided it was time to let Mr. Piechota go on to do great things.  Applicant refused to let anyone come to his house because he was too disabled to come to the door, even though he was already conducting a job search the next day.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board both found applicant to be less than credible – applicant had claimed that he was forced to pay for the laptop computer and his flights, although the documented evidence appeared to favor deeper pockets than his in that regard; there was a reason the employer wanted its laptop back as they had paid for it!

The judicial powers also found that the evidence was very clearly in favor of the defense: applicant had been fired because he refused to return the company’s property.  Of particular assistance to the defense in this case was the fact that the discussion of applicant’s uncooperative demeanor was the subject of an e-mail discussion amongst management, and the decision was clearly taken to terminate his employment if he didn’t return the laptop.

Perhaps it’s time to consider a malicious prosecution action?

No Temporary Disability for Fired Employees (Even Those Trying to Save the Beer!)

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Temporary disability payments provide an applicant with 2/3rd of his or her income while applicant can’t (or won’t) work.  What happens when applicant’s employment is terminated for cause while applicant is still “temporarily disabled”?  The obvious answer is a 132a claim, but one can expect allegations of discrimination no matter how egregious the applicant’s conduct was during the time leading up to the firing.

In the case of Ramon Flores v. Wal-Mart Associates, Inc., there was no 132a claim.  However, applicant was a door-greeter at Wal-Mart.  He noticed two individuals trying to leave with boxes of beer and, suspecting them of stealing, tried to stop them.  In a fit of alcohol-thirsty rage, the thieves knocked the brave applicant over and made their escape.  The fall was the mechanism of injury.  While giving his account of what happened, applicant was fired for violating firm policy.

My loyal readers may recall a similar case from the early days of this blog, where another employee exceeded his express duties of serving to “observe and report” by trying to catch bandits and sustaining an injury instead.

At trial in the Flores case, the defendant offered evidence that applicant as fired because he violated the company’s policy regarding shoplifting – a couple of cases of beer are not worth getting injured over, and they are especially not worth an employer paying the costs of a workers’ compensation claim.

In fairness to applicant’s position, your humble blogger must confess that the thought of perfectly good beer being kidnapped by thugs and eventually meeting a cruel fate in some horrid alley or parking lot triggers a considerable protective instinct that is hard to resist.  Nothing would bring me greater joy than riding to the rescue of said beer and enjoying the sweet rewards such libations have to offer.  Sadly, though, I am aware that we must all resign ourselves to helping the prosecution build a case against shoplifters and some amount of alcohol must be sacrificed in the process.

The workers’ compensation Judge ruled that applicant was entitled to temporary disability payments.  The defendant filed for reconsideration and the Workers’ Compensation Appeals Board granted, reversing the WCJ.  The reasoning in this case is key – citing Gonzales v. WCAB, the Board noted that temporary disability is a benefit which is paid while a worker is unable to work because of a work-related injury.  Here, applicant was unable to work, but not because of a work-related injury.  Instead, applicant was unable to work because he had violated a company policy and lost his job.

Wal-Mart deserves credit for having a clear company policy, regularly explained to the employees, and consistently enforced.  If another worker had received a medal for trying to stop shop-lifters, Wal-Mart would have been paying temporary disability and 132a supplemental benefits as well.

On 132a and Fitness for Duty Exams

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This was a close call.  A community college police offer alleges an injury to his psyche and goes off work for several months before returning to full duty.  He is on the job, gun and all, for two years before his case resolves, settling by way of stipulation to 38% permanent disability.  When human resources gets wind of the settlement and the terms of the settlement, the director insist he undergo a “fitness for duty” evaluation, and is then found by the evaluator not to be fit for duty.

After some unsuccessful effort to find an alternative, non-gun-wielding job for applicant, he was let go.  Then came the 132a claim.  Labor Code section 132a prohibits discrimination based on workers’ compensation claims.  This means that an employer can not retaliate against an injured worker for filing a claim, or treat an industrially injured worker any worse than a non-industrially injured worker.  WCDefenseCA has had occasion to touch upon this hazardous area of the law before.

The issue came before a workers’ compensation Judge, who found that defendant had violated section 132a.  WCDefenseCA does not normally side with WCJs who side with applicants, but in all fairness to this WCJ in this case, this was a close call.

Applicant was told to undergo a fitness for duty exam and eventually dismissed after two years on the job without a problem, and the triggering mechanism for this was his award.  In other words, it does not look good.

On the other hand, you have a guy walking around with a loaded gun, confronting citizens after their real or imaginary violation of the law.  Public safety is an issue, and someone rendered 38% permanently disabled as a result of a psyche injury could well be perceived as not the best candidate for such a position of authority.

The Workers’ Compensation Appeals Board reversed, granting defendant’s petition for reconsideration, reasoning that applicant had failed to show it was the industrial nature of his injury which triggered the evaluation and termination of employment.

After all, if human resources discovered that applicant had sustained an injury to his psyche that caused 38% permanent disability while engaged in some non-industrial activity, defendant would have likely proceeded in much the same way.

Employers often have “fitness for duty” exams, but when the exams are conducted on a discretionary basis, 132a claims tend to arise.  It is important to tread carefully around this area, and pay particular attention to being even-handed with respect to the nature of injuries, industrial and non-industrial, when drafting policies.

132a and the Kitchen Sink Subpoena

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Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.

A Pro-Per Denial of Benefits

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Applicant Massoud Kaabinejadian sustained a devastating psychiatric injury and was then persecuted by his employer for reporting said injury, which resulted in him courageously and rightly filing a workers’ compensation claim and a Labor Code section 132a petition as well.

He was so righteous and justified, he needed no attorney to plead his case.  To his shock and dismay, and to the shame of California’s workers’ compensation system, his case failed because of one missing and yet totally unnecessary element.  As discovery and trial revealed, Mr. Kaabinejadian’s case lacked that hairline tether connecting his legal theory to the law.

In the case of Kaabinejadian v. Rabobank and Chubb Group of Insurance Companies, applicant was hired as a senior vice president of credit at employer Rabobank.  Applicant’s job was to review loan applications and make recommendations to approve (or not approve) the loans.

After several months of friction in which applicant repeatedly denied loans previously approved by subordinate loan officers, applicant’s superiors decided that it was time to let this less-than-six month employee go.  At the time of this decision, applicant was already scheduled to meet with his superiors at another office location to participate in new-employee interviews.  His superiors decided to terminate his employment at the time of his arrival, rather than have him make a separate trip or to go to his office location.

The Workers’ Compensation Judge first noted that applicant was pleading his psychiatric injury as a cumulative trauma, allegedly incurred from the first day worked (April 3, 2006) to the last day worked (July 5, 2006) and “continuing thereafter.”  Given that this provided less than six months of employment, the WCJ correctly reasoned that applicant’s psyche claim could only proceed if it was the result of a “sudden and extraordinary employment condition,” which a cumulative trauma could not be.

In other words:

–it can’t be a generic psyche injury because applicant was not employed for at least six months, so his claim was barred by Labor Code section 3208.3;

–it couldn’t be “sudden and extraordinary” because it was a cumulative trauma; and

–if it was a specific injury and incorrectly plead as a cumulative trauma, the only specific injury could have been the termination of employment, which the WCJ described as part of “normal, regular or routine exchanges between employees and the employer … [b]assically, [applicant] was particularly upset and offended by the way in which he was terminated.”

Regarding the 132a claim, the WCJ reminded applicant that the burden is on the employee to prove discrimination, and documentation established the pre-existing intent to fire applicant well before any claim of injury was made.

The Workers’ Compensation Appeals Board was no more generous with defendant’s money than the WCJ had been, denying applicant’s petition for reconsideration and incorporating the WCJ’s report.

Tired of Litigating Baseless 132a/Discrimination Claims?

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How many times have you looked at the file on your desk (or your computer screen, for those of this blog’s readers in a paperless environment) and rolled your eyes?  You know the claim before you is baseless; you know it will probably lose; you know the applicant is just shaking you down, hoping it is cheaper to pay him or her off rather than litigate the case.  It makes me even less of a happy camper, the thought of the smiling fraudster applicant and the shady attorney getting away with it (or lien claimant and hearing representative, for that matter).

Wouldn’t you like to do something about it?  Wouldn’t you like to increase the cost of doing business on these guys just a little bit?  Wouldn’t you like to recoup a sliver of that money they made you pay out to defend against a claim with so many holes in it, it was previously used in the spaghetti straining industry?

Sanctions are rarely a remedy, and petty name-calling is generally discouraged in the world of California Workers’ Compensation.  So here is a possible solution – the next time you are facing one of these worthless claims, say those two words that involuntarily appear at the forefront of your mind:

Malicious Prosecution!  (This is a family-friendly blog, after all!)

Without going into the details of the underlying workers’ compensation 132a case (applicant failed to carry his burden and was awarded nothing on the 132a claim), the facts are these:

Employer successfully defeated a 132a claim, then filed a complaint in civil court against the applicant’s attorney and law firm. (Naming names is not done here, at WCDefenseCA, as my dear readers know, but upon request I will e-mail you a copy of the Court of Appeals decision, which includes the names of all parties.  Please send all requests to gregory@grinberglawoffice.com).

The trial court and the Court of Appeals both ruled the case can proceed.  Unfortunately, however, the Court of Appeals opinion is an unpublished one.

Let’s all watch this one closely – if we’re lucky, applicant’s attorneys will be forced to think twice before shaking down employers with baseless claims.

132a Claim Rejected on Recon

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The Workers’ Compensation Appeals Board recently issued an opinion on a 132a claim in the case of Miller v. County of Alameda (39 CWCR 208).

Miller was a licensed clinical social worker and would drive to see her patients, until she was hurt in a car accident while on one of these trips.  The injury was accepted by the defendant, and Miller eventually returned to work.  The defendant expressed doubts about her ability to continue driving as often as she had before, and told her she needed to find another job.  Miller found an applicant’s attorney instead and filed a claim for 132a.

Labor Code § 132a, prohibiting employer discrimination against employees for filing a workers’ compensation claim (or being a witness in a workers’ compensation case) is covered by your faithful author from time to time.

The reason why this case is important is because of applicant’s theory and its rejection by the WCAB.

Applicant argued that she heard a vague rumor was aware that another employee with a non-industrial injury had stricter restrictions and yet was allowed to keep her job.  The Workers’ Compensation Judge found this to be a violation of Labor Code § 132a, and defendant petitioned for reconsideration.

The WCAB granted reconsideration, reasoning that the vague allusion to some worker, without bringing the worker to trial as a witness, was not enough for applicant to carry the burden of proving a 132a claim.

In other words, the rules of evidence matter at least a little bit, even in the realm of California’s Workers’ Compensation.

132a When Employee Says He Can’t Do the Job? Not in My Workers’ Comp!

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In California’s Workers’ Compensation world, how much consideration can a defendant give an applicant’s own concerns about performing his or her job duties after an industrial injury?

In the relatively recent case of Moreno v. Workers’ Compensation Appeals Board, applicant energy technician injured his lumbar spine and right hand.  He then filed a claim for additional benefits under Labor Code § 132a.  Labor Code 132a provides additional benefits if the applicant can show discrimination against him or herself in retaliation for filing a workers’ compensation claim.  By law, an employer cannot insure against a 132a claim.

The skinny:  Applicant can not prevail on his 132a claim when he fails to show that he was treated differently than a non-industrially injured worker would have been; defendant successfully asserted the “business necessity” defense by showing a reasonable concern for undue risk of harm to the applicant in his pre-injury job.

Applicant had complained of pain in performing his job duties within the work restrictions set out by the Agreed Medical Evaluator.  The employer then put him on the priority list for the next available job, but took the original work away.

If the worker himself says he can’t do the job because of industrial-injury related pain, shouldn’t that be enough?  Apparently so!

The Workers’ Compensation Judge ordered the applicant to take nothing on the 132a claim, finding that applicant did not meet the burden of proof.  That burden could have been met by showing that non-industrially injured workers were treated better than applicant had been.

Furthermore, defendant had met the burden of showing its actions were motivated by a business necessity.  The business necessity defense was met by showing that, at the time applicant wanted re-instatement to his old job, the employer reasonably believed applicant was unable to perform the duties without undue risk of harm to himself, based on the conflict between the AME’s restrictions and the job duties.

After defendant sought clarification from the AME on the imposed work restrictions, the AME rescinded some, and applicant returned to work.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, and the Court of Appeals denied applicant’s petition for a writ of review.

A Civil Case Defense to 132a?

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Can an illegal alien, who obtained employment through fraud, prevail on a California Workers’ Compensation discrimination claim?  That’s the potentially tangential issue in a recent case, Salas v. Sierra Chemical Co.

California Labor Code § 132a prohibits discriminating against an employee for filing a workers’ compensation claim, or for participating in the workers’ compensation process, such as being a witness.  Liability for a Labor Code § 132a claim is not insurable.

In Salas, the Third Appellate District of the California Court of Appeals affirmed a trial judge’s granting of a motion for summary judgment, where the injured worker had acquired employment by using someone else’s social security number.

Salas was in a seasonal position and was laid off and re-hired on a regular basis.  At the end of one of such work periods, Salas injured his back (for the second time), and filed a workers’ compensation claim.

After the general workforce was recalled, Salas was told he could only have his old job back if he had no work restrictions.  Salas filed a civil lawsuit, alleging, among other claims, that Sierra “denied him employment to punish him for filing a claim for workers’ compensation benefits, and to intimidate and deter him and others from bringing such a claim.”

Interestingly enough, an EAMS search shows that the case settled by compromise and release in 2008, but does not reflect a Labor Code § 132a claim.

The appellate district affirmed the granting of defendant’s motion for summary judgment.  Responding favorably to the assertion that Sierra would never have hired Salas had it known about his fraudulent application, the trial judge and the appellate district found for defendant.

One caveat to this is that the facts in this case suggested that Sierra did not know that Salas was using another person’s social security number.  Had there been evidence of Sierra’s knowledge of the same, the case would have probably gone differently.

Salas still has time to appeal, but for now, this case presents an interesting opportunity to test a defense to Labor Code § 132a claims.  How the typical Workers’ Compensation Judge, and, more importantly, the typical Workers’ Compensation Appeals Board panel, will respond to this argument, will only be revealed by time.