Home > 132a, Defenses, Sanctions > Tired of Litigating Baseless 132a/Discrimination Claims?

Tired of Litigating Baseless 132a/Discrimination Claims?

How many times have you looked at the file on your desk (or your computer screen, for those of this blog’s readers in a paperless environment) and rolled your eyes?  You know the claim before you is baseless; you know it will probably lose; you know the applicant is just shaking you down, hoping it is cheaper to pay him or her off rather than litigate the case.  It makes me even less of a happy camper, the thought of the smiling fraudster applicant and the shady attorney getting away with it (or lien claimant and hearing representative, for that matter).

Wouldn’t you like to do something about it?  Wouldn’t you like to increase the cost of doing business on these guys just a little bit?  Wouldn’t you like to recoup a sliver of that money they made you pay out to defend against a claim with so many holes in it, it was previously used in the spaghetti straining industry?

Sanctions are rarely a remedy, and petty name-calling is generally discouraged in the world of California Workers’ Compensation.  So here is a possible solution – the next time you are facing one of these worthless claims, say those two words that involuntarily appear at the forefront of your mind:

Malicious Prosecution!  (This is a family-friendly blog, after all!)

Without going into the details of the underlying workers’ compensation 132a case (applicant failed to carry his burden and was awarded nothing on the 132a claim), the facts are these:

Employer successfully defeated a 132a claim, then filed a complaint in civil court against the applicant’s attorney and law firm. (Naming names is not done here, at WCDefenseCA, as my dear readers know, but upon request I will e-mail you a copy of the Court of Appeals decision, which includes the names of all parties.  Please send all requests to gregory@grinberglawoffice.com).

The trial court and the Court of Appeals both ruled the case can proceed.  Unfortunately, however, the Court of Appeals opinion is an unpublished one.

Let’s all watch this one closely – if we’re lucky, applicant’s attorneys will be forced to think twice before shaking down employers with baseless claims.

Categories: 132a, Defenses, Sanctions
  1. January 7, 2012 at 12:55 pm

    We would be very interested in this case and the outcome.
    We have an Idaho Cl atty that may fall within this realm. ARG

  2. Tom Maupin
    January 9, 2012 at 12:41 pm

    I think this is a great decision and wonder why we haven’t seen more of them in the past (perhaps there have been othe similar cases that I have just not seen). But, I am also wondering why the exclusive jusrisdiction of the WCAB doesn’t somehow come into play? Malicious prosecution is a separate tort but doesn’t the tort arise out of an exclusive provision of the Labor Code – namely 132a? Just wondering.

    • January 9, 2012 at 2:11 pm

      I wonder if the plaintiff’s attorney’s could be persuaded to file a petition to have this case published – it would be very helpful to the defense community if it provided some binding authority.

      I would interpret the malicious prosecution action as any other that could arise out of a WC case – if applicant’s attorney had slugged the employer instead of trying to extort him, the battery would be a civil (and probably criminal) tort rather than an issue for a WCJ to resolve.

  3. January 10, 2012 at 7:25 am

    I like the thought here. For years, I have watched as California plaintiff attorney’s filed their 132A’s in the hope of shaking down a business caught up in a Workers’ Compensation claim for every last dime they could possibly squeeze out of the employer/carrier. It is the aspect of work comp that makes everyone crazy who deals with claims there! Here is a chance to maybe change that. Good food for thought when analyzing your claim. In defending claims, you need to take a good long look at all the possible defenses. This may be one that will work for you in certain cases. And, in using it you may have a positive effect on making that attorney think a few times before he does it again. In a world where there are few outright wins for employers, that would be a win!

  1. January 12, 2012 at 8:05 am
  2. April 9, 2012 at 8:05 am
  3. May 23, 2012 at 8:02 am

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: