Gelson’s Markets v. Workers’ Compensation Appeals Board
On November 13, 2009, the California Court of Appeal rendered its decision in Gelson’s Markets v. Workers’ Compensation Appeals Board, a workers’ compensation discrimination case. The Court clarified existing law with respect to the burden of proof in a claim for discrimination based on an employee’s claim for industrial injury. The Court explained that, to prove a workers’ compensation discrimination claim, a worker injured on the job must prove not only that he or she suffered a detriment, but also that the employer treated the worker differently than other workers because of the industrial injury. See Gelson’s Markets v. Workers’ Compensation Appeals Board, 179Cal. App. 4th 201 (2009).
Paul Fowler worked as an order puller/machine operator for Gelson’s Markets. In 2004, he injured his neck while working. Fowler submitted a claim for benefits relating to his industrial injury. In 2007, his claim was resolved by a stipulation awarding him benefits for a 20 percent permanent disability, plus future medical treatment.
Eventually, Fowler desired to return to work. He submitted a release for activity permit from his doctor, authorizing Fowler to return to work but limiting his use of a forklift and reach-fork truck to one hour per day. Kelli Garcia, the Gelson’s Markets employee responsible for handling return to work issues, thought the release did not provide sufficient information regarding Fowler’s restrictions to permit Fowler to return to work. She telephoned Fowler’s doctor to find out whether the doctor had a description of Fowler’s job duties. The doctor said he thought so, but wasn’t sure, and went on to say that he did not feel Fowler should return to work, and thought Fowler should remain temporarily totally disabled. After her conversation with the doctor, Garcia told Fowler that Gelson’s could not accommodate the restrictions detailed in the release.
Fowler submitted a second release for activity from the same doctor, this time stating that Fowler could return to work with no restrictions. Garcia sent a letter to the doctor requesting more information because the release for activity forms were “confusing and inconsistent." She asked the doctor to review the job description for Fowler’s position, and comment on Fowler’s ability to perform the essential functions of the job, with or without accommodation.
The doctor responded by letter, stating that he had reviewed the description of Fowler’s duties, and that “Mr. Fowler is of the impression that he can carry out his job duties." Therefore, the doctor released him to return to work with no restrictions. Gelson’s did not return Fowler to work because the release stated only that Fowler thought he could perform his job duties, not that the doctor believed so.
Fowler and Gelson’s agreed to submit Fowler to an examination by an agreed-upon doctor. This doctor’s report stated that Fowler retained factors of permanent disability, such as pain and decreased range of motion, and that Fowler had lost 25% of his pre-injury capacity for lifting, pushing, pulling, prolonged motion of the spine, and overhead work activities. The report also stated, however, that the doctor did not believe that Fowler required formal work restrictions because Fowler presented as having good surgical results. Ultimately, the doctor concluded that Fowler should be given the option of returning to his usual and customary job duties.
Garcia determined the report was inconclusive, and asked for further clarification from the doctor. The doctor’s findings were not clarified until he was deposed some time later. Based upon that testimony, Fowler was returned to work in January 2007.
Fowler submitted a petition for benefits and compensation under California Labor Code section 132a, which prohibits an employer from discriminating against an employee because the employee filed a claim for worker’s compensation or received an award or settlement for an industrial injury. Employees who prove a claim for violation of Section 132a are entitled to reinstatement, lost pay and benefits, additional compensation, costs and benefits.
The workers’ compensation administrative law judge found in favor of Fowler, awarding Fowler increased compensation and back pay based upon Gelson’s failure to return Fowler to work following the report of the second doctor, which the judge found was not ambiguous. Gelson’s appealed.
The Court of Appeal set aside the WCAB decision in favor of Fowler. In reviewing the WCAB’s analysis of the evidence, the Court found that the WCAB made an error because it held Gelson’s liable for discrimination against Fowler without requiring Fowler to show that he was treated differently because of his industrial injury. In other words, there was no evidence that Fowler was treated differently by Gelson’s than Gelson’s would have treated someone returning to work after a non-work-related injury (for example, a car accident).
The Court explained that an employer can be held liable under Section 132a only if the “employer singles [the employee] out for disadvantageous treatment because of the industrial nature of [the] injury." Provided that employers treat workers with industrial injuries in the same manner as they treat other injured workers, they cannot be subjected to liability.
The Gelson’s Markets case serves as a reminder to employers that it is important to handle employees’ requests to return to work in a uniform fashion. Wise employers can reduce their risk of liability for workers’ compensation discrimination claims by having standard procedures to follow in evaluating return to work requests. Employers should require the same form of release (in terms of detail and information) without regard to the type of injury suffered by the employee.