Work Comp Settlement Does Not Extend to FEHA Obligation

Saturday, May 6, 2006 | 0

By Allan Leno

In Albertson's Inc. v. Fair Employment and Housing commission (FEHC) et al, B175816 (1/20/06), the District Court of Appeal determined that the employer failed to respond properly to the employee's request for reinstatement as a disabled worker. The employee settled her workers' compensation via a C&R for $48,000. The C&R indicated that it applied "to all unknown and unanticipated injuries and damages resulting from the accident..." Subsequent to the C&R, the applicant made several requests to return to work. Albertson's representative placed the burden of proving she could return to work on the applicant. The applicant informed the Albertson's representative that she had performed her duties for several months after her surgery, requiring infrequent assistance only with heavy pallets. She also provided copies of medical reports from her treating physician and the AME. The Albertson's representative determined that he had received no new medical information and did not respond to the applicant's request for reinstatement.

The employee filed a complaint with the Department of Fair Employment & Housing. The DHEH administrative law judge found that Albertson's had discriminated against the applicant and ordered reinstatement, payment of back wages, provision of anti-discrimination by Albertson's, and posting of compliance notices. Albertson's appealed.

The Court of Appeal upheld the DFEH finding, noting that the ALJ had properly recognized that Albertson's had an obligation with concurrent but independent legal requirements intended to protect the injured worker's rights. Albertson's chose to recognize only its workers' compensation obligations but it had a concurrent obligation to meet with the employee (the interactive process) to discuss any discrepancies between medical reports and to assess the employee's return to work options.

While this case is not certified for publication, it does send a message to employers that they need to meet with their injured employees who require job modification and properly assess potential accommodations and return to work options. This case is likely to have cost Albertson's at least $200,000 (or more) in back wages plus at least $100,000 in legal fees. A return to work assessment, using outside consultants, would cost less than 1% of Albertson's costs for defending this case and might even have been free had the employer complied with the FEHA interactive process requirement. Workers Compensation is still not the place for employers to resolve their personnel issues.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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