ADJ12284038 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Applicant in pro per seeks reconsideration of the Findings and Award issued on January 5, 2021, which found defendant terminated applicant for good cause and did not violate Labor Code section 132a.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Discrimination under Labor Code §132aDefendant prevailedleft fifth metacarpal bone · left hand

The evidence showed defendant terminated applicant for documented performance issues unrelated to the industrial injury, and applicant was aware of these issues and disciplinary process. The termination was found reasonable and not discriminatory under Labor Code section 132a.

From the decision · page 1Applicant in pro per seeks reconsideration of the Findings and Award (F&A) issued on January 5, 2021, wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that defendant terminated applicant for good cause on June 5, 20191 while he was on modified work, that defendant would have continued to make modified work available to applicant had it not terminated him, that applicant's alleged lost wages for the period of June 6, 2019 through February 12, 2020 resulted from his own conduct leading to his termination and not his industrial injury, and that defendant did not terminate applicant in violation of Labor Code section 132a.2

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 132a

Labor Code section 132a prohibits discrimination against workers injured in the course and scope of their employment.

Applied to determine if defendant discriminated against applicant by terminating him due to his workers' compensation claim.

From the decision · page 6DISCUSSION We observe that under section 132a, "[i]t is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment." Section 132a protects an employee from retaliation or discrimination by an employer because of an exercise of workers' compensation rights. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 [63 Cal.Comp.Cases 944] (Moorpark); Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658 [43 Cal.Comp.Cases 1205]; Department of Rehabilitation v. Workers' Comp. Appeals Bd. (Lauher) (2003) 30 Cal.4th 1281, 1298-1299 [68 Cal.Comp.Cases 831]; Smith v. Workers' Comp Appeals Bd. (1984) 152 Cal.App.3d 1104, 1109 [49 Cal.Comp.Cases 212] (Smith); see Usher v. American Airlines, Inc. (1993) 20 Cal.App.4th 1520, 1526 [58 Cal.Comp.Cases 813].) Section 132a provides in pertinent part:

Department of Rehabilitation v. Workers' Comp. Appeals Bd. (Lauher) (2003) 30 Cal.4th 1281

To establish a prima facie case of discrimination under section 132a, the employee must show he had a legal right to the benefit or status deprived and the employer had a corresponding legal duty to provide or refrain from taking it away.

Applied to assess whether applicant established a prima facie case of discrimination.

From the decision · page 7In Lauher, the Supreme Court clarified its definition for "discrimination," noting that in its previous decisions in Smith, supra and Barns v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, the Court held that an employer's action which caused detriment to the employee because of an industrial injury was sufficient to show a violation of the statute. (Lauher, supra, 30 Cal.4th at p. 1299 quoting [1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev. 2d ed., Peterson et al. edits, 2002)], § 10.11[1], p. 10-20 ["[t]he critical question is whether the employer's action caused detriment to an industrially injured employee"]; see Barns, supra, 216 Cal.App.3d at p. 531.)

ADJ12284038 · March 26, 2021

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