Department of Rehabilitation v. Workers’ Comp. Appeals Bd., 68 Cal. Comp. Cases 831 (Cal. June 26, 2003) is a case most readers of this newsletter will identify by one of its parties: “Lauher.” Most also cite “Lauher” for the general argument “that’s not workers’ compensation discrimination!”

But what does Lauher really stand for in terms of defending against claims of 132a? Franco v. MV Transportation, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 120, *29-30 helps clarify an otherwise helpful case, and it does not stand for simply showing-up at trial and citing Lauher applies because the employer’s policy is the “same for everyone.”

It requires evidence. In this case evidence of what the policy was and that it applied to everyone equally, not just to injured workers who have filed or made an intent to file workers’ compensation claims or receive such benefits.

Labor Code § 132a has been “interpreted liberally to achieve the goal of preventing discrimination against workers injured on the job,” while not compelling an employer to “ignore the realities of doing business by ‘reemploying’ unqualified employees or employees for whom positions are no longer available.” (Lauher, supra, 30 Cal.4th at pp. 1298–1299 [citations omitted].)

In Lauher, the Supreme Court clarified its definition for “discrimination,” noting that in its previous decisions in Smith, supra and Barns v. Workers’ Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, the Court held that an employer’s action which caused detriment to the employee because of an industrial injury was sufficient to show a violation of the statute. (Lauher, supra, 30 Cal.4th at p. 1299).

The facts of Franco are simply stated as follows: Applicant filed an Application for Adjudication of Claim (Application) on May 25, 2011 claiming injury to his arm, hand, shoulder and trunk while employed by defendant as a bus driver on April 5, 2011. On January 4, 2012, applicant amended his Application to include a claim of injury to his back. On August 27, 2012, applicant amended his Application to allege cumulative injury from October 1, 2007 to August 23, 2012 to his arm, hand, shoulder, trunk, back, neck, bilateral lower extremities and head. The record reflects that applicant’s injury to his bilateral hands was not denied and that defendant provided medical treatment.

An AME reported. The reporting included an opinion “Mr. Franco is not able [*18] to return to his usual and customary job because of the vibration associated with driving a bus, even in the absence of job-related responsibilities that exceed his residual capacity. Prolonged sitting and exposure to vibration while driving his bus have contributed to his low back injury. I am not aware of how either could be ameliorated and allow him to return to his usual and customary job without the likely risk of further injury to his low back.”

Applicant stipulated the case with an Award based on that report. Four days later he On December 9, 2013, applicant filed a “Petition for Increased Benefits for Discrimination under Labor Code Section 132a” (132a Petition). Applicant alleged in pertinent part that at the time of his settlement on December 3, 2013, he was working full duty and had been released to full duty by Dr. Jaojoco. (Id., p. 2, lines 1–5.) He further alleged that on the afternoon of the day the parties settled his workers’ compensation cases, “defendant terminated or otherwise refused to reasonably accommodate his physical limitations and/or disabilities” based on the AME reporting and that he had not seen the AME the AME the primary treating physicians updated reports.

Franco v. MV Transportation, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 120, *21-22

The court in Franco (the “WCAB”) did not decide whether there was Labor Code § 132a violation due to deficient record but a panel interpreting Supreme Court’s decision in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, concluded that injured worker is not required, in every case, to prove that he or she was “singled out for disadvantageous treatment” to establish prima facie case for discrimination.

It held that more broadly interpreted, Lauher requires employee to show that, based on specific factual scenario underlying his or her discrimination claim, he or she was subject to “disadvantages not visited on other employees” because of injury, that although applicant here was ostensibly treated same as non-industrially injured workers with respect to his work release, employer’s apparent lack of policy with regard to handling medical-legal reports that conflict with opinion of treating physician that releases employee to work could be found to adversely affect industrially-injured workers in way that does not equally affect non-industrially-injured workers (who would presumably remain on job once released to work after injury or illness). It held that this pattern subjected applicant to disadvantages not visited upon other employees because of his injury, and that if, on remand, applicant establishes prima facie case of Labor Code § 132a violation by showing he suffered such disadvantages, employer retains right to defeat applicant’s discrimination claim by showing that employer acted out of business necessity. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.11[1]-[3]; [*3] Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.27[1], [6][a].]

As Lexis reported: “Although the panel’s decision did not resolve Franco’s claim of discrimination under Labor Code section 132a, it is noteworthy because it sets the record straight that an injured worker may make a prima facie showing of unlawful discrimination even where they cannot demonstrate a singling out for disadvantageous treatment, so long as they show some adverse result as a consequence of some action or inaction by the employer that was triggered by the industrial injury, and that they had a legal right to receive or retain the deprived benefit or status and the employer had a corresponding legal duty to provide or refrain from taking away that benefit or status. In other words, the injured worker must show they were subject to disadvantages not visited on other employees because of the industrial injury.”

This was not a “significant panel decision” and is not yet a “final case” resolution because it was remanded for additional trial. The original WCAB trial judge found in favor of the employer. Perhaps the judge will find the same way again. However first he will have to determine the employer “acted out of business necessity” as the Franco case has affirmed: an employer must “present sufficient factual evidence to dispute applicant’s prima facie case” it did not discriminate. Failure to do so results in a trial remand at best, and a loss at worst.

Remember my tried and true principle: one cannot win any case good looks, One can only win it based on good law and evidence.