ADJ9729654 — California WCAB decision

ADJ9729654 · November 22, 2022

The WCAB rescinded the Findings of Fact, substituted findings that applicant established a prima facie section 132a claim based on termination shortly after injury claims, false denial of claims, and deferred issues of business necessity and pretext, returning the matter to trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Pomona

What the panel ordered

Applicant seeks reconsideration of the Findings of Fact issued on December 3, 2020, where the WCJ found no violation of Labor Code section 132a by defendant. The WCAB granted reconsideration to study factual and legal issues further.

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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 §132aApplicant prevailed

Applicant established a prima facie claim by showing termination shortly after injury claims and false denial of claims; issues of business necessity and pretext deferred for further proceedings.

From the decision · page 2We have considered the allegations of the Petition and the contents of the Report. Based on our review of the record, and for the reasons stated below, as our Decision After Reconsideration, we will rescind the Findings of Fact, substitute findings that (1) applicant established his prima facie section 132a claim based upon the record showing that defendant terminated applicant on November 13, 2014 shortly after applicant made known his specific and cumulative injury claims, denied his specific injury claim on false grounds on December 5, 2014, and denied his cumulative injury claim on false grounds on May 4, 2015; and (2) defer the issues of whether defendant acted out of business necessity, and, as appropriate, whether defendant's stated business reasons were pretextual; and we will return this matter to the trial level for further proceedings consistent with this decision.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant reported specific injury on November 1, 2014, and cumulative injury on November 12, 2014, before termination on November 13, 2014.

Favours Applicant prevailed

This timing established that termination occurred after injury reporting, supporting the prima facie discrimination claim under Labor Code section 132a.

From the decision · page 11Because WCJ Munoz determined that applicant sustained his specific injury on November 1, 2014 and reported it on that same date, that applicant reported his cumulative injury on November 12, 2014, and that applicant was terminated by defendant on November 13, 2014; and because defendant did not seek reconsideration of WCJ Munoz's decision, WCJ Munoz's determinations regarding when applicant reported his injuries and when he was terminated became final, and, as such, the law of the case. (§ 5900, 5950; see also 9 Witkin Cal. Proc. Appeal § 480 (stating that the law of the case doctrine generally provides that where a court states a rule of law necessary to its decision, that statement of the law is conclusive and determinative of the rights of the same parties in subsequent proceedings in the same case).) Consequently, our evaluation of the record concerning the issue of whether applicant established his prima facie section 132a claim begins with the question of whether defendant terminated applicant after he "made known his... intention to file a claim." (Lauher, supra at p. 1300; § 132a.)

Defendant denied specific and cumulative injury claims on false grounds that injury was reported post-termination, singling out applicant for disadvantageous treatment.

Favours Applicant prevailed

This denial on false grounds demonstrated discriminatory treatment, supporting the prima facie claim.

From the decision · page 12In addition, the record shows that applicant filed his specific and cumulative injury claims on November 18, 2014, that defendant denied the specific injury claim on December 5, 2014 on the false grounds that he had not reported the injury before termination, and that defendant denied the cumulative injury claim on May 4, 2015 on the false grounds that he had not reported the injury before termination. (Minutes of Hearing and Summary of Evidence, November 19, 2015, p. 9:6- 7; Ex. 1, Notice of Denial of Claim for Workers' Compensation Benefits, December 5, 2014.) In this regard, we are persuaded that the evidence demonstrates that defendant singled applicant out for disadvantageous treatment by denying these claims on the false grounds that he had been terminated before asserting them.

The rules the panel named

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

Lauher v. Workers' Comp. Appeals Bd.

Prima facie case for discrimination under Labor Code section 132a requires showing injury, adverse consequences triggered by injury, and deprivation of a legal right or status.

Applied to evaluate applicant's prima facie claim of discrimination under section 132a.

From the decision · page 10Based on its specific application to the facts of Lauher, we view the Court's phrase "singled out for disadvantageous treatment" to be an application of the broader standard adopted by Lauher--that, in addition to showing that he or she suffered an industrial injury and that he or she suffered some adverse consequences as a result of some action or inaction by the employer that was triggered by the industrial injury, an applicant "must also show that he or she had a legal right to receive or retain the deprived benefit or status, and the employer had a corresponding legal duty to provide or refrain from taking away that benefit or status." (Lauher, supra at p. 1300.) Stated another way, an employee must show they were subject to "disadvantages not visited on other employees because they were injured...." (Id.)3 Because the employee in Lauher was not deprived of a legal right to TDI, and therefore could not show he was treated differently than other employees with respect to his alleged detriment, he could not establish a prima facie case of discrimination.

Judson v. Workers' Comp. Appeals Bd.

Employer's business necessity defense requires showing actions were reasonable and necessitated by business realities; burden shifts to applicant to prove pretext if employer meets burden.

Referenced for deferring business necessity and pretext issues for further proceedings.

From the decision · page 12When an employee establishes a prima facie case, the defendant still retains the right to present evidence to rebut applicant's prima facie case. (See § 5705; Judson, supra, 22 Cal.3d at p. 667.) In rebuttal, the employer must show that its actions were "...necessitated by `the realities of doing business.'" (Judson, supra, 22 Cal.3d at p. 667; Smith, supra, 152 Cal.App.3d at p. 110.) The employer's stated business reasons must be reasonable under the facts of the case. (Barns, supra, 216 Cal.App.3d at p. 534-535.) Thus, evidence produced by an employee in the prima facie case, and the related inferences raised by such evidence, may support a finding of retaliation or discrimination if the reason offered by the employer is unreasonable or not credible under the

ADJ9729654 · November 22, 2022

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