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COA: No 132a for Declining to Rehire

Hello, dear readers!  Please forgive your humble blogger’s absence of late.  Reports of my demise are greatly exaggerated.

To prove the point, I bring you this post of the unpublished Court of Appeal decision in the matter of Tina Allen v. WCAB.  Now, remember dear readers, unless you’re willing to take a certain risk with a relatively novel legal theory, unpublished decisions are not to be cited.

So here’s the deal: Allen was employed by AT&T and had received warnings about her absenteeism – you can only play hookie from work so many times before your employer starts to take notice.  She was warned that, if she missed any more time from work, AT&T might encourage her to “Sprint” out the door (see what I did there?).

Well, shortly thereafter she filed a claim for an industrial injury, and missed more time from work.  However, her treating physician concluded that some of the time she missed from work was because of another injury sustained while dancing, and not from any industrial injury.  Accordingly, her employer let her go.

Ms. Allen then filed a petition for 132a penalties, but ultimately the WCJ and the WCAB concluded that the employer did not discriminate against Ms. Allen, because they did not treat her any differently than an employee with a non-industrial injury, as per the Supreme Court’s decision in Lauher.

So, Ms. Allen then contacted AT&T and asked to be reinstated.  These attempts to rekindle that lost employment relationship failed to stir a response from hard-hearted AT&T, who, for some reason, seemed determined to not rehire an employee previously reprimanded for repeated absenteeism.

So, Ms. Allen decided to leave the past behind her and pursue other employment opportunities, and that’s the end of that… just kidding: she filed a 132a petition because AT&T wouldn’t rehire her!

Now, your humble blogger has had his share of relationships end, but using legal action to force a reunion never seemed like a viable option.

On this second petition for 132a penalties, applicant argued she was discriminated against because she was not rehired.

The WCJ rejected the second bite at the apple.  Relying on City of Anaheimv. Workers’ Compl. Appeals Bd. the WCJ held that, in order to have a 132a claim, an employment relationship must first exist, which was not the case here as AT&T had decided to treat Ms. Allen as one of your humble blogger’s cell phone calls (and dropped her…)  Even if that were not the case, the WCJ noted that AT&T refusal to re-hire applicant was not shown to be related to her workers’ compensation claim, but to the same reason for which she was fired initially (the absenteeism).

The WCAB concurred.

In seeking the Court of Appeal’s review, Ms. Allen didn’t find much by way of luck.  The Court of Appeal noted that the issue of applicant’s lawful termination was resolved by the first WCAB’s opinion, and Ms. Allen should have sought appellate review at that time, but failed to do so.  And, as the lawful termination is now a fact beyond the Court’s power to disturb, the City of Anaheim case controls.

Now, the scenario is one that is interesting for many reasons, but the most interesting to your humble blogger is whether subsequent determination of facts can invalidate prior employment decisions.

Let’s say applicant is terminated for missing time from work because the primary treating physician determines the missed days to have been caused by non-industrial injuries.  Subsequently, the parties use an AME, who determines those missed days to have been caused by an industrial injury.  Should the employer then be required to rehire the injured worker?  Does the previously lawful termination of employment suddenly become an unlawful one, retroactively?

Leave your thoughts in the comments, dear readers, and have a great weekend!

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