What the panel ordered
The Board rescinded the prior Findings and Order, substituted findings that applicant established a prima facie claim under Labor Code section 132a, deferred the issues of defendant's legitimate business reasons and whether those reasons were pretextual, and returned the matter to the trial level for further proceedings.
Applicant sought reconsideration of the Joint Findings and Order issued on May 29, 2019, which denied his claim under Labor Code section 132a. The WCJ had found no violation by defendant. The Board granted reconsideration to further study the issues.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
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.)