A non published case ruling that there was no 132 (a) violation and the decision was res judicata

This is a non-published case of the Court of Appeal

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

The applicant had an admitted injury. The applicant was on temporary disability and then returned to work. The applicant then went off work again. The employer disputed whether this was industrial. The applicant returned to work and was suspended from work pending an investigation as to her absence.

The applicant was eventually terminated and filed a claim for discrimination under Labor Code section 132(a).

There was a Compromise and Release. The applicant went to trial on the 132(a) claim and the Workers’ Compensation Judge (WCJ) found in the applicant’s favor and ordered the defendant to reinstate the applicant.

The employer filed a petition for reconsideration and the WCJ reversed his prior ruling. The applicant filed for reconsideration but the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition. The applicant did not file for review with the Court of Appeal within 45 days.

The applicant made a request for reinstatement when she had already been terminated. Therefore, no employment relationship existed.

They discuss the Lauher case and the reason she did not file timely for writ. They indicate that just because the applicant was unrepresented they cannot violate jurisdictional rules and the case was res judicata. Therefore, there was no 132(a) claim.


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.


Newsletter Sign up

SUBSCRIBE to our
Workers Compensation Feed

Recent Newsletters

Categories

Archives