In California Workers’ Compensation law, there are a few  un-insurable area.  One of them is Labor Code § 132a – discrimination against an employee for filing a workers’ compensation claim.

Sometimes, however, the workers’ compensation claim provides the context for the employer’s action, but not the reason.

In a recent case, Sandoval v. WCAB (2011), Sixth District Court of Appeals denied applicant’s Petition for Writ of Review.

Applicant claimed to have sustained an injury to his back while working as a delivery driver and was put on modified duty riding a desk.  Someone saw him moving an object beyond his stated restrictions and the employer retained an investigator firm to gather sub-rosa videos.  The videos showed applicant moving heavy furniture on his weekends.

Naturally, the employer fired him.  The 132a claim was the result.  The Workers’ Compensation Judge found for the applicant, reasoning that the proper course of action would have been to bring the videos to the treating physician.

Just a thought: the employer can comprehend the physician-imposed work restrictions enough to assign a job within limited duties, but somehow can’t recognize when the worker is going beyond those restrictions?

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration.  The worker was fired because the employer subjectively thought him a liar, and the evidence supports this reason as more than just a pretext.  In fact, the WCAB reasoned that “whether [defendant’s perception of applicant as a liar] was correct is immaterial for our purposes, so long as it was sincere.”

The lesson in this?  The employer is not stuck with a worker who is lying – if something, anything, seems fishy about the employee, don’t hesitate to retain a private investigator service.

Sub-rosa saved UPS (the employer) from having to accommodate someone who, from all appearances, was not the most trust-worthy, nor the least opportunistic, employee.