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After defendant sought clarification from the AME on the imposed work restrictions, the AME rescinded some, and applicant returned to work.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