ADJ9962889 · April 13, 2022

The Board found that defendant deviated from its usual procedures by seeking a supplemental medical report from a non-treating physician and by imposing work restrictions without resolving conflicting medical reports, establishing a prima facie claim of discrimination under section 132a.

From the decision · page 8As to the issue of whether defendant deviated from its procedures by seeking a medical report from a non-treating physician, the record reveals that defendant returned applicant to work based upon the treating physician's report in January 2016 and applicant worked full duty for approximately a year and a half. (Report, p. 2.) In early 2017, with applicant's claim in litigation, the parties jointly sought a supplemental report from Dr. Wieseltier as to the issue of permanent disability of the cervical spine. (Ex. X, Report of Dr. Wieseltier, April 6, 2017, p. 4.) Dr. Wieseltier prepared the requested report and opined that applicant was precluded from "prolonged or repetitive neck movements and heavy lifting," but did not opine as to whether applicant should be restricted from work. (Id., p. 7.) Thereafter, defendant's attorney requested that Dr. Wieseltier prepare a supplemental report on whether or not the preclusions set forth in his April 6, 2017 report should result in restrictions. (Ex. X, Report of Dr. Wieseltier, August 2, 2017, p. 3.)

Defendant requested a supplemental medical report from a non-treating physician a year and a half after applicant returned to full duty, deviating from usual procedures.

Favours Applicant prevailed

This deviation supported the finding of a prima facie claim of discrimination under Labor Code section 132a.

From the decision · page 8As to the issue of whether defendant deviated from its procedures by seeking a medical report from a non-treating physician, the record reveals that defendant returned applicant to work based upon the treating physician's report in January 2016 and applicant worked full duty for approximately a year and a half. (Report, p. 2.) In early 2017, with applicant's claim in litigation, the parties jointly sought a supplemental report from Dr. Wieseltier as to the issue of permanent disability of the cervical spine. (Ex. X, Report of Dr. Wieseltier, April 6, 2017, p. 4.) Dr. Wieseltier prepared the requested report and opined that applicant was precluded from "prolonged or repetitive neck movements and heavy lifting," but did not opine as to whether applicant should be restricted from work. (Id., p. 7.) Thereafter, defendant's attorney requested that Dr. Wieseltier prepare a supplemental report on whether or not the preclusions set forth in his April 6, 2017 report should result in restrictions. (Ex. X, Report of Dr. Wieseltier, August 2, 2017, p. 3.)

Defendant imposed work restrictions based on Dr. Wieseltier's report without resolving the conflict with Dr. Einbund's unrestricted return to work opinion.

Favours Applicant prevailed

This failure to resolve conflicting medical opinions constituted a separate ground supporting the prima facie claim.

Initially found no work restrictions for right upper extremity; later found impairment and restrictions for cervical spine, including prohibition on prolonged or repetitive neck movements and heavy lifting; subsequently removed restrictions and returned applicant to full duties.

The Board considered the conflicting medical opinions of Dr. Wieseltier regarding work restrictions and found that defendant improperly imposed restrictions based on his report without resolving conflicts.

From the decision · page 4The Applicant was released by his treating doctor and returned to full duties around January of 2016. On September 6, 2016 the Applicant was evaluated by Dr. Wieseltier, the panel qualified medical evaluator. Dr. Wieseltier's reports, respectively are Board Exhibit X. At the time of the September 6, 2016 evaluation, the Applicant had complaints to his neck, right shoulder, right elbow and right hand.... In his September 6, 2016 report he addressed impairment to the right wrist and right shoulder, he did not address if there was impairment or work restrictions as to the neck. He found no work restrictions as far as the right upper extremity. The doctor noted that the Applicant could return to his usual and customary duties. The parties subsequently requested that the doctor issue a supplemental report to address the Applicant's cervical spine.

Released applicant to return to work without restrictions in December 2016 and September 2017 reports.

The Board noted the conflict between Dr. Einbund's unrestricted return to work opinion and Dr. Wieseltier's restrictions, which defendant failed to resolve properly.

From the decision · page 3Dr. Einbund's report dated December 13, 2016 states: the applicant is currently working in his usual and customary capacity. No work restrictions are indicated or necessary. (Ex. 4, Report of Dr. Einbund, Dember 13, 2016, p. 4.)

Labor Code section 132a

Labor Code section 132a prohibits employer discrimination against employees for filing workers' compensation claims.

The Board applied section 132a to assess whether defendant discriminated against applicant by imposing work restrictions and taking adverse actions based on medical reports.

From the decision · page 5Section 132a provides in pertinent part: 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...or an application for adjudication, or because the employee has received a rating, award, or settlement...testified or made known his or her intention to testify in another employee's case... is guilty of a misdemeanor and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits...

Lauher v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1126

The Supreme Court in Lauher clarified that to establish a prima facie claim under section 132a, an employee must show they were singled out for disadvantageous treatment compared to other employees.

The Board relied on Lauher to determine that applicant established a prima facie claim by showing defendant deviated from usual procedures and treated him differently.

From the decision · page 5In 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

Applicant testified he was taken off work based on a non-treating physician's report and used 350-400 hours of vacation and sick time while off work.

From the decision · page 3At trial, applicant testified that he had a workers' compensation claim for injury to his right shoulder, neck and right wrist and was released to return to work by his treating physician, Dr. Einbund in January 2016. (Minutes of Hearing, Order of Consolidation and Summary of Evidence, May 8, 2019, p. 5:16-19.) In August 2017, defendant took him off work based upon the supplemental report of a physician whom he had not seen. (Id., p. 5:20-23.) Before being taken off work, he had been working full duty without restrictions. (Id., p. 5:24.) He was off work for three to four months and used between 350 and 400 hours of vacation and sick time. (Id., p. 6:2- 3.)

Defendant's representative testified defendant did not treat applicant differently than other employees but deviated from usual procedures by requesting a supplemental report and imposing restrictions without resolving conflicts.

From the decision · page 3Defendant's risk management analyst, Pamela Jean Mackie, testified that she has held her position with defendant since 1994. (Id., p. 7:5-6.) In August 2017, after a QME report imposed medical restrictions, defendant held an interactive meeting during which applicant requested a reevaluation regarding whether the restrictions were appropriate, and applicant was taken off work because defendant could not accommodate the restrictions. (Id., p. 7:8-13.) After applicant was reexamined in October 2017 by Dr. Wieseltier, the restrictions were removed and applicant was returned to work. (Id., p. 7:14-15.) Defendant did not treat applicant differently than other employees. (Id., p. 7:17.)