Defendant medically restricted applicant from the spotter position prior to August 25, 2008, and did not lift those restrictions.
Favours Defendant prevailed
This showed defendant followed usual procedures in medically restricting applicant, not deviating to discriminate.
From the decision · page 5Here, the record reveals that defendant determined that applicant was medically restricted
from the spotter position prior to August 25, 20084; that applicant's medical restrictions were not
lifted; and that the parties received Dr. Hunt's June 5, 2009 medical opinion not on the issue of
whether applicant was medically restricted from the spotter position but on whether he was
medically restricted from "a job that never actually existed." (Opinion on Decision, pp. 3-4;
Report, p. 6.) On this record, we are unable to discern evidence that defendant's conduct in
medically restricting applicant from obtaining the spotter position before Dr. Hunt's June 5, 2009
report and declining to release him from the restrictions as a result of the report constituted a
deviation from its usual procedures for evaluating whether an injured employee is medically able
to perform an available position. Therefore, we are persuaded that the WCJ correctly concluded
that "[t]here was no evidence presented that would suggest other employees... were allowed... to work at a spotter position with [the] same or more work restrictions." (Opinion on Decision,
p. 4.)
No evidence showed other employees with the same or more work restrictions were allowed to work as spotters.
Favours Defendant prevailed
This supported the conclusion that applicant was not singled out for disadvantageous treatment.
From the decision · page 2A memo dated 8/25/08 stated the job of a spotter is "more demanding in
some ways than a regular driver and with these limitations, Elmer could not
safely do his job." (Exhibit 4)...
There was no evidence presented that would suggest other employees in
similar situations were... able to work at a spotter position with same or
more work restrictions as Applicant....
This issue seemingly went off the tracks when Dr. Hunt gave an opinion in
2009 about returning to work for a job that never actually existed. Applicant
has provided no credible evidence to the judge that the actual spotter job in
2009 and 2010 was as described to Dr. Hunt at the 2009 exam and at Dr.
Hunt's deposition later that year.
(Opinion on Decision, pp. 3-4.)
WCJ's credibility determinations favored defendant's witness and discredited applicant's testimony on the spotter position duties.
Favours Defendant prevailed
The Board accorded great weight to these credibility findings, supporting the denial of discrimination claim.
From the decision · page 6credibly regarding the duties of the spotter position and that applicant testified without credibility
regarding that issue. (Report, pp. 5-7.) We accord great weight to these determinations because
the WCJ had the opportunity to observe the witnesses' demeanor at trial. (Garza v. Workmen's
Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318§ 319 [35 Cal.Comp.Cases 500, 504§ 505].) In
addition, the record before us lacks evidence of considerable substantiality that would warrant our
rejection of these credibility determinations. (Id.)