ADJ8246247 — California WCAB decision

ADJ8246247 · July 27, 2021

Petition for Reconsideration granted in part to admit Exhibit G; Joint Findings of Fact and Award affirmed as amended; applicant found to have proven a Labor Code section 132a violation; awarded increased compensation, costs, lost wages subject to proof, and attorney's fees.

Issues decided

Medical opinions weighed

Authorities named

District office

Oxnard

What the panel ordered

Defendant sought reconsideration of the Joint Findings of Fact and Award issued on May 3, 2021; the WCJ filed a Report and Recommendation on Reconsideration recommending partial grant of the petition to admit Exhibit G into evidence and denial of other contentions; the Appeals Board granted reconsideration and affirmed the F&A except to admit Exhibit G.

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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.

Discrimination under Labor Code §132aApplicant prevailed

Applicant established a prima facie case of retaliation by showing close temporal proximity between settlement and termination; defendant failed to provide evidence of good faith business necessity; applicant's testimony was credible and unrefuted.

From the decision · page 8"In the present case, applicant contends that defendant singled him out for disadvantageous treatment by terminating his employment after he agreed to resolve his cases in chief. Here we observe that an employer who discharges an employee because the employee received a workers' compensation settlement is in violation of section 132a and that evidence demonstrating a close temporal proximity between the settlement and the discharge may serve to establish the employee's prima facie claim. (§ 132a; see, e.g., Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353)."

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant testified consistently and credibly on three occasions regarding his section 132a claim.

Favours Applicant prevailed

The WCJ accorded great weight to applicant's credibility and found no evidence refuting his testimony, supporting the finding of a 132a violation.

From the decision · page 3Nevertheless, we concur in the WCJ's opinion that the addition of Exhibit G into the record does not affect the outcome of the F&A. (Report, p. 3.) More specifically, as the WCJ states in the Report, applicant testified on three occasions as to the facts and circumstances surrounding his section 132a and industrial injury claims; applicant's testimony was consistent and credible throughout; and defendant proffered no testimonial, documentary or other evidence to refute applicant's section 132a claim. (Report, pp 3-4.) Because we accord the WCJ's credibility determination great weight, and because the record contains no evidence refuting applicant's testimony, we conclude that the evidence of applicant's prior felony convictions is insufficient by itself to discredit his testimony herein. (See Garza v. Worker's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].)

Defendant ordered applicant to clean out his locker and desk shortly after applicant returned to work following settlement.

Favours Applicant prevailed

This close temporal proximity between settlement, return to work, and discharge supports the prima facie case of retaliation under Labor Code section 132a.

From the decision · page 8Defendant effectively ordering applicant to remove his personal effects from his place of work together with the above supports a finding Applicant was, in fact, terminated from his employment at Walgreens as of December 9, 2015. This is in-between one week and a few weeks.

Defendant failed to provide evidence of good faith business necessity for termination.

Favours Applicant prevailed

Without evidence of business necessity, defendant's termination of applicant is found to be retaliatory under Labor Code section 132a.

From the decision · page 8No evidence documentary, testimonial or other evidence, refuted applicant's prima facie showing of being singled out in retaliation for having filed a workers' compensation claim. Based on defendant's lack of offering any reason for applicant's termination it is found applicant has proved up his L.C. § 132a violation.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Boeken v. Philip Morris, Inc. (2004) 122 Cal.App.4th 684, 727; Evid. Code, § 788

Evidence of prior felony convictions is admissible to attack witness credibility and may disprove wage loss claims depending on circumstances.

Exhibit G was admitted to attack applicant's credibility but did not discredit his testimony.

From the decision · page 3Here we observe that evidence of prior felony convictions is considered probative and admissible as to the issue of witness credibility. (See Boeken v. Philip Morris, Inc. (2004) 122 Cal.App.4th 684, 727; see also Evid. Code, § 788 [evidence of witness's prior felony conviction admissible for the purpose of attacking witness's credibility].) We also observe that evidence of prior felony convictions may tend to prove disqualification from certain positions of employment and thus may be admissible for the purpose of disproving wage loss claims, depending upon the surrounding circumstances.

Labor Code section 132a; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353

An employer who discharges an employee because the employee received a workers' compensation settlement violates Labor Code section 132a; close temporal proximity between settlement and discharge may establish a prima facie case.

Applicant established prima facie case by showing close temporal proximity; defendant failed to show good faith business necessity.

From the decision · page 8"In the present case, applicant contends that defendant singled him out for disadvantageous treatment by terminating his employment after he agreed to resolve his cases in chief. Here we observe that an employer who discharges an employee because the employee received a workers' compensation settlement is in violation of section 132a and that evidence demonstrating a close temporal proximity between the settlement and the discharge may serve to establish the employee's prima facie claim. (§ 132a; see, e.g., Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353)."

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's consistent and credible testimony on three occasions

From the decision · page 3Nevertheless, we concur in the WCJ's opinion that the addition of Exhibit G into the record does not affect the outcome of the F&A. (Report, p. 3.) More specifically, as the WCJ states in the Report, applicant testified on three occasions as to the facts and circumstances surrounding his section 132a and industrial injury claims; applicant's testimony was consistent and credible throughout; and defendant proffered no testimonial, documentary or other evidence to refute applicant's section 132a claim. (Report, pp 3-4.) Because we accord the WCJ's credibility determination great weight, and because the record contains no evidence refuting applicant's testimony, we conclude that the evidence of applicant's prior felony convictions is insufficient by itself to discredit his testimony herein. (See Garza v. Worker's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].)

activities of daily livingfavours Applicant prevailed

Evidence of close temporal proximity between settlement and termination, including defendant ordering applicant to clean out locker and desk

From the decision · page 8Defendant effectively ordering applicant to remove his personal effects from his place of work together with the above supports a finding Applicant was, in fact, terminated from his employment at Walgreens as of December 9, 2015. This is in-between one week and a few weeks.

Documentary evidencefavours Applicant prevailed

Defendant failed to proffer evidence of good faith business necessity for termination

From the decision · page 8No evidence documentary, testimonial or other evidence, refuted applicant's prima facie showing of being singled out in retaliation for having filed a workers' compensation claim. Based on defendant's lack of offering any reason for applicant's termination it is found applicant has proved up his L.C. § 132a violation.

ADJ8246247 · July 27, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

What proof carried it

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