Hernandez v. WCAB

N/A

OUTCOME: On appeal

This is a 132a case that I worked on as a defense attorney. The injured worker and the employer settled the workers' compensation claim based on a PQME report that found injury. The employee, regardles ... s of the injury had been fired for two reasons: (1) the work injury that was initially claimed was not a day that the employee worked and (2) the employee had signed off on a "fitness for duty" form that he did not have any injuries. Thus, at once, the employee was claiming both that he *was* injured (thus, the work comp claim resulted) and that he *was not* injured (thus, the fitness-for-duty form would have allowed him to keep his higher-paying position). Defense lost the 132a claim at trial with a finding that terminating the employee for claiming an injury -- even if on the wrong day -- was retaliation. On appeal, I argued that (1) claiming an injury for a day that the employee wasn't at work was genuinely initially viewed as fraud (in fact, the date of injury was not changed until after the termination had taken place), which is not retaliation for a workers' compensation injury and (2) even if the first point is incorrect, the fact that the employer fired the employee for lying on his fitness-for-duty form and that it had a history of terminating employees for lying is enough to legitimize the termination, which takes it outside of a 132a retaliation claim. This case must have given the WCAB a lot to think about because it has been on appeal at the reconsideration level for years (since the summer of 2015!).