A Clarification of <i>Lauher</i> and Discrimination

Saturday, October 22, 2005 | 0

by Jake Jacobsmeyer

The Second District Court of Appeals has issued a decision reversing a determination of the Workers' Compensation Appeals Board finding an employer guilty of violating Labor Code section 132a where the employer removed an employee from a work position that he had been performing for approximately eight months even though the evidence showed that the employee was at risk of injury to himself or others by continuance in the position.

In County of San Luis Obispo v. WCAB (Martinez) the employee, Art Martinez, sustained injuries in early 2000 which resulted in temporary total disability benefits for almost three years. When released by his physician to return to work without significant restrictions, the employee was placed in a job as a mental health therapist at a youth home. Shortly after being released to return to work, the employee changed treating physicians. In May of 2003, that PTP, Dr. Hutchinson, reported that the IW should not work in a position where he might exposed to physical confrontations. The Doctor's deposition was taken and he again opined that if Martinez was required to physically restrain combative patients, he should not be allowed to continue in that position. In May of 2003 Martinez selected yet another PTP, Dr. Ruda, a chiropractor. Dr. Ruda reported that he agreed completely with Dr. Hutchison.

The Risk manager requested a job description be prepared. The job description included as part of the duties the potential for being involved in unanticipated physical confrontations with the patients at the youth center, including confrontations with individuals weighing up to 300 lbs and was issued on September 2, 2003. On September 22, 2003 the case was tried before the WCAB. On September 26, 2003 the claims administrator wrote to the risk manager that the job duties appeared to be inconsistent with the applicant's restrictions. The adjuster indicated a job analysis was being prepared. On that date the risk manager advised the applicant that there was a concern about the potential for physical danger if he continued in his employment and the Martinez was removed from his job as the matter was investigated further. The job analysis issued on 10/1/03 and described again the potential for physical confrontation although the patients were described as up to 150 lbs in that analysis.

The employee filed a claim under LC 132a on 10/7/03 alleging that the removal from employment was in retaliation for his pursuing his worker's compensation claim. On 11/24/03 the employee was advised that he would not be allowed to return to employment because his job duties were inconsistent with the work restrictions and in particular that need to be able to physically restrain patients.

At the trial in the 132a claim the Martinez admitted that some of the teenagers in the youth home weighed up to 300 lbs but disputed the risk of injury from physical confrontation with the students. The employer presented testimony from the risk manager, the applicant's direct supervisors and a co-employee with similar job duties at the same facility. All of these employees testified that there were students at the facility who weighed 300 or more pounds and that there was a history of assaults by the students as a result of their emotional problems and low frustration levels. Several of the employees testified to having been assaulted in the recent past. The trial judge awarded applicant benefits under LC 132a determining that applicant had been effectively terminated and that he was capable of continuing in his "modified job" based on the report of Dr. Ruda. The WCAB granted reconsideration but upheld the award in their own opinion in a 2-1 decision.

Defendant appealed principally on the basis that the WCAB had utilized the incorrect legal standard in determining the requirements for applicant's prima facia case of violation of LC 132a. Defendant argued that prior to the Supreme Court decision in Dept of Rehabilitation v WCAB (Lauher) that the prima facia case for a LC 132a claim was for the employee to demonstrate that there had been an adverse action taken by his employer as a result of an injury. Defendant argued that since Lauher, the standard required the employee to demonstrate that the adverse consequence involve singling him out specifically as a result of the work injury and showing that he was treated differently than other similarly situated employees.

The Court of Appeals agreed with the defendant's arguments on the burden of proof and the proper legal standard:

"The parties argued and the WCAB decided this case under the Barns standard. Because the WCAB and the parties did not proceed under the correct legal standard, the record before the court contains no evidence that Martinez was singled out for disadvantageous treatment. Without such evidence, we cannot determine whether Martinez met his burden of proof. It is unnecessary, however, to remand for the taking of evidence on this issue because the County has met its burden of showing it terminated Martinez because of a good faith belief that he could not perform the duties of his employment without risk of reinjuring himself."

The Court then reviewed the WCJ and WCAB's findings and concluded that there were mixed errors of fact and law. The Court noted that the WCAB was incorrect in determining that the employer returned the Martinez to work initially with the same restrictions that it later used as a basis to remove him from his job. As pointed out be the court, at the time of the applicant's return to work in Feb, 2003, there were no restrictions on his ability to deal with combative students and that restriction was not imposed until several months latter. The Court also held that the WCAB focused on the wrong time frame in looking at the impact of restrictions:

"The WCAB also erred by focusing on what the County knew at the time it returned Martinez to work. It is the employer's knowledge at the time it terminates an employee, not its knowledge at the time it returns him to work, that is relevant in determining whether an employer established reasonable business necessity. (Leamon v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 1409, 1414-1415.) An employer may be justified in terminating an employee if at the time of termination the employer reasonably believes that returning the employee to his position would endanger the employee or others. (Kirkman v. Workers' Comp. Appeals Bd. (1983) 48 Cal.Comp.Cases 805 (writ den.).)"

The Court also criticized the WCAB for suggesting that the employer should have obtained additional medical reports before removing Martinez from his job. The court did not see any reason for the employer to obtain another opinion when the employee's own selected physicians both reported specific work restrictions that were incompatible with employment. Since there was no inconsistency in the record, defendant was not obligated to look further for additional medical evidence. The Court also found unjustified the determination by the WCAB that defendants had acted in bad faith in "manipulating the record" by having the weight of the students increased from 150 lbs to 300 lbs. The testimony on this issue was overwhelming and even supported by Martinez himself.

Given the Appellate Court's description of the events in this case it is difficult to understand how the WCAB, regardless of what standard was applied, could conclude that the employer had discriminated given the overwhelming record demonstrating that this employment represented a serious risk of injury for the applicant. The only testimony that disputed the potential of injury was that of applicant and that testimony stood in contrast to several employee's who had performed the same job for many years and testified to a history of injuries and significant risks of assault or need to physically intervene in confrontations.

In looking behind this case it is possible that the WCJ and the WCAB were overly impressed with the timing elements of this case. The employer's removal of Martinez from his youth therapist job was very close after his WCAB trial. It may not be much of a stretch to consider that the WCJ and WCAB felt that the coincidence level was too high and that the removal from employment was a consequence of the trial. However the Lower level decisions stretched the facts out of proportion to try and accomplish the result to justify the result (or at least that appears to be the conclusion of the Appellate Court).

Anyway you look at this decision is provides additional support for the argument that the Lauher case has significantly altered the ground rules for LC 132a claims. The employee's prima facia case requires much more under that decision that simply showing there was a consequence that occurred as a result of the work injury. Clearly this case demonstrates that the burden under Lauher is going to be much greater and that the employee has to show not just disadvantageous treatment, but that the treatment was different from the treatment of other employees and that the different treatment was a result of the work injury, a much higher burden of proof.



By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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