The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrial carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!