An Appellate Court Has Overturned A WCAB Granting A Section 132(a)

This is a very significant case for workers’ compensation principles.

The applicant had an industrial injury to his neck. The treating physician took the applicant off work. The applicant had a cervical fusion. The applicant entered in to a Stipulated Finding and Award for 20 per cent permanent disability with future medical care.

Prior to this, the applicant had applied to return to work. Whether the applicant could return to work was disputed by the employer. The case went to trial. The Workers’ Compensation Judge (WCJ) found that the employer was liable for a section 132 (a) violation.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration by the employer agreed there was a violation and awarded lost wages.

The appellate court reviewed numerous appellate decisions. They determined that the employer did not discriminate against the employee because the employer did not treat the applicant any different then they treated nonindustrially injured employees. The applicant made no showing that the employer treated him disadvantageously because of his industrial injury.


Apportionment for Pre-Existing Pathology and Did Not Find Age Discrimination

This is a very significant case for workers’ compensation purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized.

The applicant had an admitted specific and cumulative trauma injury. The applicant was seen by an agreed medical examiner (AME). The AME determined that 20 percent of the applicant’s disability was due to her preexisting pathology.

At trial the workers’ compensation judge (WCJ) indicated that 20 percent of the applicant’s disability was nonindustrial. The applicant presented a vocational rehabilitation expert at trial to indicate the applicant’s loss of future earning capacity was 100 per cent.

The applicant filed a petition for reconsideration and the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The appellate court indicated the apportionment was not speculation. The applicant claimed that the apportionment violated age based discrimination under Government Code section 11135. The appellate court indicated the apportionment was not based on age.

In addition the applicant tried to argue the applicant was 100 percent based on the LeBoef V. WCAB and this was disallowed.


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