Appellate Court Requires Disparate Treatment to Support 132 Award

Thursday, November 19, 2009 | 0

By Richard M. "Jake" Jacobsmeyer

The 2nd District Court of Appeals has reversed a WCAB award of benefits under Labor Code § 132a, holding the board did not apply the correct standard enunciated by the California Supreme Court in Dept of Rehabilitation v WCAB (Lauher).
 
The factual issues in Gelson’s Market v WCAB (Fowler) are a key issue in understanding the court’s analysis.  Fowler was a warehouseman for Gelson’s who sustained a cervical spine injury resulting in surgery.  His treating physician released him with work limitations which only partially addressed some of his job duties.  Seeking clarification the employer was advised by the primary treating physician that he felt the employee should not return to his usual job but that the employee wanted to do so.  The employer sent the physician a job description to obtain clarification of whether the employee could return to work with or without accommodation.
 
The physician thereafter released the employee with no restrictions.  The employer was unsuccessful in obtaining clarification from the physician regarding the conflict between his two releases (issued within a week of each other) and the doctor’s comments to the employer.  The parties thereafter obtained the opinion of an agreed medical evaluator. The AME reported the employee could return to his job without restrictions but also described a 25% loss of capacity for work activity.  The employer again declined to allow the employee to return to work finding a discrepancy between the loss of work capacity and the opinion the employee did not have any work restrictions limiting his ability to return to work.  The AME’s deposition was taken and the issue of whether the employee could return to work was resolved in Fowler’s favor and he was returned to work.
 
There was a delay of approximately 6 months between the original release by the first primary treating physician and the time applicant actually returned to work.  The employee filed a claim under Labor Code § 132a alleging the employer discriminated against him by refusing to take him back to work after a work injury with the medical reports that he could return to his usual and customary job.  The trial judge agreed that the applicant was discriminated against by the employer after the AME report but not after PTP reports & awarded Labor Code § 132a benefits the WCAB slightly modified but upheld the workers' compensation judge's award, finding:
 
“that Gelson’s received an unambiguous release to work from the treating physician on July 20, 2005, but unreasonably refused to reinstate Fowler on that date…”
 
Gelson’s appeal to the 2nd District argued that the WCAB used the incorrect standard to determine if a Labor Code § 132a violation occurred by failing to require the employee to demonstrate the employer’s conduct resulting a different treatment (disparate) than a non-industrially injured employee would have received.  The Court of Appeal agreed.
 
The Court noted previous authorities which suggested any detrimental impact to an employee that was a result of a work related injury was a basis for a violation of Labor Code § 132a.  However in the landmark decision in Lauher the Supreme Court imposed an additional criterion:
 
“…Because the industrially injured employee did not show that his employer treated him differently from nonindustrially injured employees and singled him out for disadvantageous treatment because of the industrial nature of his injury, the employee failed to establish a prima facie case of discrimination under section 132a and the employer was not liable under that statute…
…
An employer . . . does not necessarily engage in ‘discrimination’ prohibited by section 132a merely because it requires an employee to shoulder some of the disadvantages of his industrial injury.  By prohibiting ‘discrimination’ in section 132a, we assume the Legislature meant to prohibit treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”  (Ibid.)  The prohibited discrimination occurs when the injured worker’s “employer single[s] him out for disadvantageous treatment because of the industrial nature of his injury.” (Citing Lauher)
 
The Court ruled Fowler did not make a prima fascia showing because he failed to demonstrate his treatment was different from how a non-industrially injured employee would have been treated under the same circumstance.
 
“Here Fowler made no showing that Gelson’s treated him differently from nonindustrially injured employees.  That is, Fowler made no showing that Gelson’s would have returned to work a nonindustrially injured employee whose physician provided the same releases, but discriminated against Fowler by not returning him to work.  Fowler made no showing that Gelson’s treated him disadvantageously because of the industrial nature of his injury, as compared to how Gelson’s treated a nonindustrially injured employee.  Thus he did not make a prima facie case of discrimination in violation of section 132a and did not shift the burden to Gelson’s to establish an affirmative defense.”
 
The Court pointed out a different case where an employee did demonstrate disparate treatment.  In Anderson v WCAB the employee was able to show his employer required employees with work injuries to treat time off due to injury differently from similar time off due to non-work related leave.  Failing to provide a business necessity for such treatment, the appellate courts had determined such conduct met the criterion under Lauher as showing disparate treatment.
 
The holding in this case is certainly good news for employers who are frequently provided the Hobson’s choice to bringing an employee back to work where the risk of reinjury is high or seeking clarification from medical experts as to the employee’s ability to return to work.  The WCAB in this case had little compunction about second guessing the employer’s actions in trying to obtain a definitive answer about the employee’s ability to return to work without risk of further injury.  This case makes it more difficult for the workers' compensation judge or WCAB neither of whom has any risk involved in the decision to second guess the employer’s legitimate concerns.

To read the Gelson's decision

Richard "Jake" Jacobsmeyer is a partner with the firm of Shaw, Jacobsmeyer, Crain & Claffey