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Keyword: ‘132a’

Employer Not Served with 132a Recon; Recon Denied!

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrial carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

Categories: Uncategorized

132a Claim Fails – Even If WCJ Thinks Employer Isn’t Nice

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrially-caused carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

Categories: Uncategorized

Raising 132a in Application Does Not Trigger Discovery Timeline

Boilerplate pleadings should be discouraged in workers’ compensation.  They might save a little time for the party filing them, but they end up wasting the time of opposing counsel and the Board.  If Labor Code section 132a is an issue in this case – go ahead and raise it.  If it isn’t, refrain.  But if you’re going to raise 132a, then run with it – don’t stamp 132a on every single application.

For example, a worker might return to his job after an injury, get promoted, get a raise, and be held up as an example to his co-workers as a model employee – one who meets misfortune head on and works hard to get past it.  Some applicant attorneys would include 132a in their application.  Why?  Because it’s easier to kitchen-sink a form rather than do a full investigation of a case at intake.

Which brings us to the case of Edwin Mendoza v. J & S Auto Hand Wash.  Applicant worked for Auto Hand Wash and sustained injury to multiple parts of his body over a six-year period ending in May of 2011.  Applicant filed a claim in August of 2011, and (wouldn’t you know it) raised the issue of 132a in his application.  The actual petition for increased benefits was not filed until January of 2012.  A Declaration of Readiness to Proceed was filed by applicant ten days later on all issues except the 132a claim.

Should the 132a claim have been set for trial on the same date as the case-in-chief?  Applicant’s position was that it should not and that discovery had not yet been completed.  But, at the time of the Mandatory Settlement Conference, applicant had almost seven months since raising the issue in his application, and had not begun to conduct discovery on the matter.  The workers’ compensation Judge set all issues for trial, reasoning that applicant has had plenty of time to conduct discovery and has chosen not to.  The clock began ticking when the issue was raised on the application, not when the petition was filed.

Unfortunately, the Workers’ Compensation Appeals Board sided with applicant’s position, granting his petition for removal.  The Board responded to applicant’s claim that he “will be severely prejudiced if a final decision is made on his claim if he has not had the opportunity to conduct discovery.”   With this sentiment, your humble blogger agrees…

If applicant had not had the opportunity to conduct discovery, setting the matter for trial would have been prejudicial.  However, applicant had ample opportunity from August 2011 to March of 2012 to depose the employer or subpoena records.

In the WCJs report and recommendation, it is noted that “[t]he Petition for Removal gives no explanation for the applicant’s not having conducted discovery on the 132a claim.”

I understand the concern of giving applicant a harsh result, but shouldn’t we be trying to move things along?  After all, the allegations forming the basis of the 132a claim were not a surprise – the issue was raised in the application.

On the bright side, an EAMS search reflects that the case has settled by compromise and release.  So perhaps there was a happy ending after all?

Categories: Uncategorized

132a Claim Fails Because Employee Was Being a Jerk

The end of a business relationship can be a nasty event – and when all the stops are pulled, accusations of discrimination often fly if there is even a hint of a workers’ comp claim in the air.

Labor Code section 132a, which governs claims of industrial-injury-based discrimination, is often invoked when the following sequence of events occurs:

1)      Employee is employed;

2)      Employee sustains an industrial injury;

3)      Employee is no longer employed.

Where’s the discrimination?  It’s not always there.  In the event of a completely baseless 132a claim, the employer can recoup the time and expense wasted defending the frivolous action by filing a malicious prosecution claim in civil court.

Often enough, the story is one of a bitter employee fired for reasons unrelated to any injury, as was the case in John Piechota v. SEI Information Technology (a November, 2011 panel decision recently denied review by the Court of Appeal).

Applicant was employed as an information technology consultant and, while flying on business, sustained injury to his left knee roughly a month after being hired.  He saw a doctor for this injury but the doctor prescribed no work restrictions.  A month later, while on a connecting flight (employer apparently refused to authorize a direct flight or private corporate jet) applicant re-injured his left knee and this time got work restrictions prohibiting travel for three weeks.

Applicant, at the time, was holding on to a $2,400 laptop for his employer which the employer had paid for.  When his employer asked for the laptop back, he refused, reasoning that he had e-mailed all pertinent information to a co-worker, so the employer didn’t really “need” the laptop.

After several rebuffed attempts to get the laptop back, including offering to go to applicant’s house to pick it up, the employer decided it was time to let Mr. Piechota go on to do great things.  Applicant refused to let anyone come to his house because he was too disabled to come to the door, even though he was already conducting a job search the next day.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board both found applicant to be less than credible – applicant had claimed that he was forced to pay for the laptop computer and his flights, although the documented evidence appeared to favor deeper pockets than his in that regard; there was a reason the employer wanted its laptop back as they had paid for it!

The judicial powers also found that the evidence was very clearly in favor of the defense: applicant had been fired because he refused to return the company’s property.  Of particular assistance to the defense in this case was the fact that the discussion of applicant’s uncooperative demeanor was the subject of an e-mail discussion amongst management, and the decision was clearly taken to terminate his employment if he didn’t return the laptop.

Perhaps it’s time to consider a malicious prosecution action?

Categories: 132a, Tactics and Strategy

On 132a and Fitness for Duty Exams

February 29, 2012 Leave a comment

This was a close call.  A community college police offer alleges an injury to his psyche and goes off work for several months before returning to full duty.  He is on the job, gun and all, for two years before his case resolves, settling by way of stipulation to 38% permanent disability.  When human resources gets wind of the settlement and the terms of the settlement, the director insist he undergo a “fitness for duty” evaluation, and is then found by the evaluator not to be fit for duty.

After some unsuccessful effort to find an alternative, non-gun-wielding job for applicant, he was let go.  Then came the 132a claim.  Labor Code section 132a prohibits discrimination based on workers’ compensation claims.  This means that an employer can not retaliate against an injured worker for filing a claim, or treat an industrially injured worker any worse than a non-industrially injured worker.  WCDefenseCA has had occasion to touch upon this hazardous area of the law before.

The issue came before a workers’ compensation Judge, who found that defendant had violated section 132a.  WCDefenseCA does not normally side with WCJs who side with applicants, but in all fairness to this WCJ in this case, this was a close call.

Applicant was told to undergo a fitness for duty exam and eventually dismissed after two years on the job without a problem, and the triggering mechanism for this was his award.  In other words, it does not look good.

On the other hand, you have a guy walking around with a loaded gun, confronting citizens after their real or imaginary violation of the law.  Public safety is an issue, and someone rendered 38% permanently disabled as a result of a psyche injury could well be perceived as not the best candidate for such a position of authority.

The Workers’ Compensation Appeals Board reversed, granting defendant’s petition for reconsideration, reasoning that applicant had failed to show it was the industrial nature of his injury which triggered the evaluation and termination of employment.

After all, if human resources discovered that applicant had sustained an injury to his psyche that caused 38% permanent disability while engaged in some non-industrial activity, defendant would have likely proceeded in much the same way.

Employers often have “fitness for duty” exams, but when the exams are conducted on a discretionary basis, 132a claims tend to arise.  It is important to tread carefully around this area, and pay particular attention to being even-handed with respect to the nature of injuries, industrial and non-industrial, when drafting policies.

Categories: 132a