ADJ606784 · May 20, 2022

Applicant failed to prove that defendant subjected him to disadvantages not visited upon other employees because of his industrial injury, and the WCJ's credibility determinations were accorded great weight.

From the decision · page 1Applicant seeks reconsideration of the Joint Findings and Order (F&O) issued on July 19, 2021, wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that defendant did not violate Labor Code1 section 132a and ordered that applicant's section 132a petition be denied.

Defendant medically restricted applicant from the spotter position prior to August 25, 2008, and did not lift those restrictions.

Favours Defendant prevailed

This showed defendant followed usual procedures in medically restricting applicant, not deviating to discriminate.

From the decision · page 5Here, the record reveals that defendant determined that applicant was medically restricted from the spotter position prior to August 25, 20084; that applicant's medical restrictions were not lifted; and that the parties received Dr. Hunt's June 5, 2009 medical opinion not on the issue of whether applicant was medically restricted from the spotter position but on whether he was medically restricted from "a job that never actually existed." (Opinion on Decision, pp. 3-4; Report, p. 6.) On this record, we are unable to discern evidence that defendant's conduct in medically restricting applicant from obtaining the spotter position before Dr. Hunt's June 5, 2009 report and declining to release him from the restrictions as a result of the report constituted a deviation from its usual procedures for evaluating whether an injured employee is medically able to perform an available position. Therefore, we are persuaded that the WCJ correctly concluded that "[t]here was no evidence presented that would suggest other employees... were allowed... to work at a spotter position with [the] same or more work restrictions." (Opinion on Decision, p. 4.)

No evidence showed other employees with the same or more work restrictions were allowed to work as spotters.

Favours Defendant prevailed

This supported the conclusion that applicant was not singled out for disadvantageous treatment.

From the decision · page 2A memo dated 8/25/08 stated the job of a spotter is "more demanding in some ways than a regular driver and with these limitations, Elmer could not safely do his job." (Exhibit 4)... There was no evidence presented that would suggest other employees in similar situations were... able to work at a spotter position with same or more work restrictions as Applicant.... This issue seemingly went off the tracks when Dr. Hunt gave an opinion in 2009 about returning to work for a job that never actually existed. Applicant has provided no credible evidence to the judge that the actual spotter job in 2009 and 2010 was as described to Dr. Hunt at the 2009 exam and at Dr. Hunt's deposition later that year. (Opinion on Decision, pp. 3-4.)

WCJ's credibility determinations favored defendant's witness and discredited applicant's testimony on the spotter position duties.

Favours Defendant prevailed

The Board accorded great weight to these credibility findings, supporting the denial of discrimination claim.

From the decision · page 6credibly regarding the duties of the spotter position and that applicant testified without credibility regarding that issue. (Report, pp. 5-7.) We accord great weight to these determinations because the WCJ had the opportunity to observe the witnesses' demeanor at trial. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318§ 319 [35 Cal.Comp.Cases 500, 504§ 505].) In addition, the record before us lacks evidence of considerable substantiality that would warrant our rejection of these credibility determinations. (Id.)

Dr. Hunt gave an opinion in 2009 about returning to work for a job that never actually existed, which was not on the issue of whether applicant was medically restricted from the spotter position.

The opinion was considered but found not to show deviation from usual procedures in medically restricting applicant from the spotter position.

From the decision · page 5Here, the record reveals that defendant determined that applicant was medically restricted from the spotter position prior to August 25, 20084; that applicant's medical restrictions were not lifted; and that the parties received Dr. Hunt's June 5, 2009 medical opinion not on the issue of whether applicant was medically restricted from the spotter position but on whether he was medically restricted from "a job that never actually existed." (Opinion on Decision, pp. 3-4; Report, p. 6.) On this record, we are unable to discern evidence that defendant's conduct in medically restricting applicant from obtaining the spotter position before Dr. Hunt's June 5, 2009 report and declining to release him from the restrictions as a result of the report constituted a deviation from its usual procedures for evaluating whether an injured employee is medically able to perform an available position. Therefore, we are persuaded that the WCJ correctly concluded that "[t]here was no evidence presented that would suggest other employees... were allowed... to work at a spotter position with [the] same or more work restrictions." (Opinion on Decision, p. 4.)

Labor Code section 132a

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

The Board applied section 132a to evaluate the applicant's claim of discrimination by medical restriction from the spotter position.

From the decision · page 2Under section 132a, "[i]t is the declared policy of this state that there should not be

Lauher v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1126

To establish a prima facie case of discrimination under section 132a, the employee must show they were subject to disadvantages not visited on other employees because of their industrial injury.

The Board applied the Lauher standard to determine that the applicant failed to show he was singled out for disadvantageous treatment.

From the decision · page 3In Lauher, the Supreme Court clarified its definition for "discrimination," noting that in

From the decision · page 6credibly regarding the duties of the spotter position and that applicant testified without credibility regarding that issue. (Report, pp. 5-7.) We accord great weight to these determinations because the WCJ had the opportunity to observe the witnesses' demeanor at trial. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318§ 319 [35 Cal.Comp.Cases 500, 504§ 505].) In addition, the record before us lacks evidence of considerable substantiality that would warrant our rejection of these credibility determinations. (Id.)