Gelson's Markets v. Workers' Compensation Appeals Board

FACTUAL AND PROCEDURAL HISTORY

Applicant Paul Fowler worked as an order puller/machine operator for Gelson’s. He sustained an industrial injury to his neck, and his treating physician, Frank Badin, M.D., took him off work on August 3, 2004. On March 1, 2005, a neurosurgeon performed a cervical fusion on Fowler. His claim of industrial injury to his neck while working for Gelson’s was addressed by the April 19, 2007, entry of a stipulated award of 20 percent permanent disability and future medical treatment.

Fowler inquired about returning to work, and produced a release for activity permit from Dr. Badin. The permit stated that Fowler could return to work on June 27, 2005, with his use of a forklift and Raymond Reach-Fork Truck limited to one hour per day. Kelli Garcia, a Gelson’s risk manager who managed workers’ compensation and insurance for injured workers, received Dr. Badin’s release for Fowler. Garcia thought the note was not clear and did not provide Gelson’s with enough information about Fowler’s restrictions. Garcia testified that she needed to make sure Fowler was capable of performing all functions of his job, and the release specified only a small and insignificant aspect of Fowler’s job. Garcia needed to make sure that Dr. Badin had Fowler’s physical job description and knew what Fowler’s work for Gelson’s involved. She therefore telephoned Dr. Badin, and asked him if he had the job description of Fowler’s job functions; Dr. Badin said he thought he did but was not sure. Dr. Badin also told Garcia that he really did not feel Fowler should be returned to work, and thought Fowler should stay temporarily totally disabled.

Dr. Badin responded in a July 18, 2005, letter: “I reviewed the description of employee’s job duties with Mr. Paul Fowler. Mr. Fowler is of the impression that he can carry out his job duties. Mr. Fowler is, therefore, released to return to his job as a stacker machine operator/order selector with no restrictions.” Garcia did not return Fowler to work after receiving Dr. Badin’s letter, because in their previous conversation Dr. Badin told Garcia that he did not want to return Fowler to work but Fowler wanted to work. On July 20, 2005, Garcia wrote to Dr. Badin that Gelson’s did not accept Dr. Badin’s July 18, 2005, letter because it said Fowler felt he was able to return to work and therefore he should be able to return to work. Garcia wanted Dr. Badin’s expert medical opinion about whether Fowler could return to work and with what restrictions. Garcia never received that expert medical opinion from Dr. Badin, who stopped responding and did not return Garcia’s phone calls.

Fowler and Gelson’s agreed to submit Fowler to an agreed medical examiner, Dr. Angerman. After examining Fowler, Dr. Angerman served Gelson’s with a copy of his report on September 22, 2006. The report stated that Fowler retained factors of permanent disability regarding the cervical spine. These included intermittent minimal to slight pain on most occasions, becoming more than slight and occasionally slight to moderate with prolonged motions of the cervical spine, and decreased range of motion of the

Garcia concluded that Dr. Angerman’s report was inconclusive and that Gelson’s needed clarification from Dr. Angerman. Dr. Angerman’s report stated that Fowler should be given the option of returning to his usual job activities. In the previous paragraph Dr. Angerman gave no restrictions, but also said Fowler had lost 25 percent of his preinjury capacity. Garcia received no information about what Fowler’s preinjury job capacities were for lifting, pushing, pulling, and prolonged motions, and needed clarification about what Fowler was currently able to' lift. Garcia could not determine whether Fowler’s loss of 25 percent of job capacity caused him to fall below the job requirements in Gelson’s job description. Garcia did not return Fowler to work after Dr. Angerman’s report, because as distinct from Fowler’s opinion, Gelson’s still had received no physician’s medical opinion as to whether Fowler could return to work.

Dr. Angerman resolved the question in his December 1, 2006, deposition. Dr. Angerman testified that he thought Fowler could probably perform his usual and customary job. Based on Dr. Angerman’s deposition testimony, Gelson’s returned Fowler to work on January 8, 2007.

Fowler filed a petition for benefits and increased compensation under section 132a, claiming backpay from June 27, 2005, to January 6, 2007, and a $10,000 statutory penalty. The workers’ compensation administrative law judge made findings. First, because Dr. Badin’s June 20, 2005, and June 27, 2005, releases were ambiguous and contradictory and Garcia attempted to clarify these ambiguities with Dr. Badin, Gelson’s failure to reinstate Fowler on June 27, 2005, did not violate section 132a. Second, because Dr. Angerman’s report was not ambiguous as to Fowler’s ability to return to work, Gelson’s failure to reinstate Fowler after July 19, 2006, violated section 132a. Third, Fowler was entitled to increased compensation of $10,000 and reimbursement for lost wages from July 20, 2006, through January 6, 2007, less credit for any sums paid during this period.

Pursuant to section 5950, Gelson’s filed a petition in this court seeking issuance of a writ of review and an order annulling the WCAB findings, award, and decision after reconsideration. On August 6, 2008, this court issued a writ of review directing the WCAB to certify and return a copy of records and documents reviewed by the WCAB on Gelson’s petition for reconsideration, giving the WCAB an opportunity to appear and to file a response to the petition for writ of review, and setting the matter for oral argument.

ISSUES

Petitioner Gelson’s claims that:

1. The WCAB decision rests on a definition of discrimination in violation of section 132a which the California Supreme Court has rejected and replaced; and

2. Section 132a requires a prima facie showing of disparate treatment, and the WCAB erred as a matter of law in imposing liability pursuant to section 132a because there was no evidence of disparate treatment.

DISCUSSION

1. Standard of Review

Section 5952 sets forth the standard of review of a petition filed pursuant to section 5950: “The review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether:

“(a) The appeals board acted without or in excess of its powers.

“(b) The order, decision, or award was procured by fraud.

“(c) The order, decision, or award was unreasonable.

“(d) The order, decision, or award was not supported by substantial evidence.

“(e) If findings of fact are made, such findings of fact support the order, decision, or award under review.

“Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.”

“Although we defer to the Board’s determination of facts if supported by substantial evidence, we review the Board’s legal decisions de novo, for ‘[i]t is for the court to decide whether the facts found by the Board constitute a violation of section 132a.’ ” (Lauher, supra, 30 Cal.4th at p. 1298.) “While we accord ' “significant respect” ’ to the Board’s interpretation of statutes in the area of workers’ compensation [citation], we subject the Board’s conclusions of law to de novo review [citations].” (Id. at p. 1290.)

2. Fowler Did Not Make a Prima Facie Showing of Gelson’s Liability for Discrimination in Violation of Section 132a

Gelson’s claims that the WCAB erroneously imposed liability for discrimination pursuant to section 132a because Fowler presented no evidence of disparate treatment by Gelson’s because of his industrial injury.

Section 132a states: “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.

“(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee’s compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”

The WCAB’s June 2, 2008, decision after reconsideration stated: “In order to make a prima facia [szc] showing of discrimination the employee need only that [sic] action is taken by the employer to the injured worker’s detriment.” Some authority supported this statement. Smith v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 1104 , 1109 [ 199 Cal.Rptr. 881 ] concluded that “action which works to the detriment of the employee because of an injury is unlawful under section 132a.” Barns v. Workers’ Comp. Appeals Bd. (1989) 216 Cal.App.3d 524 [ 266 Cal.Rptr. 503 ], citing Smith, similarly stated that “a worker proves a violation of section 132a by showing that as the result of an industrial injury, the employer engaged in conduct detrimental to the worker.” (Id. at p. 531.) In Lauher, however, the California Supreme Court added a new element to the prima facie case of discrimination which a worker must establish to show a violation of section 132a. (Lauher, supra, 30 Cal.4th at pp. 1300-1301.) The WCAB’s decision in this case applied the former standard which Lauher replaced, failed to recognize Lauher, and did not apply the new standard Lauher established.

In Lauher an employer required an industrially injured employee to use sick leave when he was away from the office for medical treatment of his injury. (Lauher, supra, 30 Cal.4th at pp. 1287, 1298.) The employer also required employees with nonindustrial injuries to follow this rule. (Id. at p. 1301.) Because the industrially injured employee did not show that his employer treated him differently from nonindustrially injured employees and singled him out for disadvantageous treatment because of the industrial nature of his injury, the employee failed to establish a prima facie case of discrimination under section 132a and the employer was not liable under that statute. (Lauher, at pp. 1300-1301.)

Section 132a is interpreted liberally to achieve the goal of preventing discrimination against workers injured on the job. This liberal interpretation, however, does not mean that any action by an employer that is detrimental to the industrially injured employee violates section 132a. (Lauher, supra, 30 Cal.4th at p. 1300.) For such an employee “merely to show he suffered an industrial injury and that he suffered some detrimental consequences as a result is insufficient to establish a prima facie case of discrimination within

Andersen v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369 [ 57 Cal.Rptr.3d 839 ] illustrates the application of the Lauher standard. The employer in Andersen required industrially injured workers to use earned vacation time when attending medical appointments. By contrast, the employer allowed nonindustrially injured workers to use sick leave when attending medical appointments. (Id. at pp. 1378-1379.) By making the use of sick leave depend on whether a worker had an industrial or a nonindustrial injury, the employer treated industrially injured workers disparately and detrimentally, which was illegal discrimination that violated section 132a. (Id. at p. 1380.)

Here Fowler made no showing that Gelson’s treated him differently from nonindustrially injured employees. That is, Fowler made no showing that Gelson’s would have returned to work a nonindustrially injured employee whose physician provided the same releases, but discriminated against Fowler by not returning him to work. Fowler made no showing that Gelson’s treated him disadvantageously because of the industrial nature of his injury, as compared to how Gelson’s treated a nonindustrially injured employee. Thus he did not make a prima facie case of discrimination in violation of section 132a and did not shift the burden to Gelson’s to establish an affirmative defense.

Therefore the WCAB award in favor of Fowler and his attorneys and against Gelson’s should be annulled.

The award of the Workers’ Compensation Appeals Board is annulled. Costs on appeal are awarded to petitioner Gelson’s.

Croskey, Acting P. J., and Aldrich, J., concurred.

The petition of respondent Paul Fowler for review by the Supreme Court was denied January 21, 2010, S178615.