The following represents a summary and analysis of some of the most recent case decisions issued by the California
Supreme Court, California Court of Appeal, and the Workers’ Compensation Appeals Board, and Statutes which the
Editor believes is significant to the claims involving LC 132(a) and of the Serious and Willful Misconduct and the practice of Workers' Compensation law generally. The summaries are only the Editor's interpretation, analysis, and legal opinion, and the reader is encouraged to review the original case decision in its entirety.
Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145] . However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96
Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236] . While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En
Banc Opinion)]
. Panel Decisions which are designated as “Significant” by the WCAB, while not binding in workers compensation proceedings, are intended to augment the body of binding appellate court and en banc decision and is limited to panel decisions involving (1) issue(s) of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) upon agreement en banc of all commissioners on the significance and importance of the issues presented and resulting decisions.
(See Elliot v. WCAB (2010) 182 Cal.App. 4 th 355, 361, fn. 3, 75 CCC 81; Larch v. WCAB (1999) 64 CCC 1098, 1099-1100 (writ denied).
§ 132a. Policy opposed to discrimination against injured workers; Misdemeanor offenses
It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.
(1) 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 for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be
increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
(2) Any insurer that advises, directs, or threatens an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge an employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and subject to the increased compensation and costs provided in paragraph (1).

(3) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee testified or made known his or her intentions to testify in another employee's case before the appeals board, is guilty of a misdemeanor, and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
(4) Any insurer that advises, directs, or threatens an insured employer under penalty of cancellation or a raise in premium or for any other reason, to discharge or in any manner discriminate against an employee because the employee testified or made known his or her intention to testify in another employee's case before the appeals board, is guilty of a misdemeanor.
Proceedings for increased compensation as provided in paragraph (1), or for reinstatement and reimbursement for lost wages and work benefits, are to be instituted by filing an appropriate petition with the appeals board, but these proceedings may not be commenced more than one year from the discriminatory act or date of termination of the employee. The appeals board is vested with full power, authority, and jurisdiction to try and determine finally all matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge. The appeals board may refer and any worker may complain of suspected violations of the criminal misdemeanor provisions of this section to the Division of Labor Standards Enforcement, or directly to the office of the public prosecutor.
nd
Applicant sustained injury to back while employed as a mental-health therapist. Ultimately the applicant underwent back surgery. While the applicant initially returned to work, the employer took the applicant off work when it learned that restrictions imposed by the QME and the primary treating doctor appeared incompatible with the job requirements which included physically restraining combative patients.
Applicant sought increased benefits under LC 132(a) on the grounds that the applicant has performed modified work successfully. In denying applicant’s petition for increased benefits the Court held that the mere showing that an injured worker suffered an industrial injury and that he suffered some detrimental consequences as a result is insufficient to establish discrimination under section 132(a). Now the employee must also demonstrate that he was singled out for disadvantaged treatment because of the industrial injury. The employer’s intent is determined at the time of the termination, not as of the time the applicant returns to work. In this case, the employer allegedly had concerns over increased harm to the worker thereby justifying termination as a business necessity.
rd
Applicant fell while attempting to sit in her chair while at work on 3/8/07. A month prior the applicant was notified that she was in violation of company policy regarding excess absenteeism’s and further that she would be terminated for any further absences. Following the 3/8/07 the applicant subsequently aggravated
Editor’s Comments: This decision demonstrates two key elements required of a LC 132(a) claim. First, evidence must establish that applicant was treated differently because of or on account of having made an industrial injury claim.
The mere fact a company policy and the resulting action taken pursuant to this policy has had a detrimental impact on the applicant alone is insufficient.
Second, LC 132(a) requires that at the time of the treatment/conduct/action by the employer, the applicant must actually be an employee. However, all employers should be reminded that while such conduct may not give rise to a
132(a) claim, that such conduct may support a claim under FEHA in that the employer has the obligation to “engage in the interactive process” and make
“reasonable accommodations” to employees with disabilities. her injury while dancing and was taken off work
4/9-10 but return to modified work by her PTP on 4/11. Applicant visited a different doctor who placed applicant on TD 4/11-19. When she returned on 4/20 she was suspended and ultimately terminated after ATT investigated and determined that the April absences were non-industrial. Applicant sought increased benefits under LC 132(a) alleging she was dismissed for having filed an industrial claim.
The QME supported an additional period of industrial TD. Thereafter the applicant and defendant resolved the issue of TD with ATT agreeing to pay $1,080 through Stip and Order approved by WCJ on 1/16/08. On rereview the WCJ citing Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4 th 1281, 68 CCC 831, held that applicant had failed to establish that “ATT treated her differently in a detrimental way because she sustained an industrial injury, not simply that an action taken as a result of her injury caused her detriment. . .ATT terminated
Allen because she failed to comply with the company’s absence policy. . .there was no evidence ATT treated her

differently on account of her industrial injury.” The WCAB upheld the WCJ on reconsideration with no further appeal taken by applicant.
Following settlement of TD on 1/16/08, applicant requested that she be permitted to return to work.
Defendant took no action with respect to applicant’s request. Applicant filed a second petition pursuant to LC
132(a). This time citing City of Anaheim v. WCAB (1981) 124 Cal.App.3
rd 609, 46 CCC 1264 , the WCJ held that given the lack of an employment relationship or any other type of nexus between the two parties at the time of applicant’s request for reinstatement, the Board was without jurisdiction to address the claim. Further the court noted that the applicant had failed to show ATT’s refusal to rehire her was related to the earlier workers’ compensation claim as required by Lauher.
Applicant sought review with the Court of Appeal upholding the WCAB noting that the decision for the first 132(a) claim was final. Therefore, the second 132(a) claim is without merit as the applicant was not an employee at the time applicant requested that she be allowed to return to work.
Applicant sustained injury due to workrelated stress and depression which, after applicant was determined to be P&S, resulted in Stipulation with Request for Award which provided for a 23% award and future medical care. The applicant continued to receive medical treatment which often resulted in the applicant missing up to four hours from work. His employer required the applicant to either take a reduction in pay for lost time, or utilize his vacation and sick time. Applicant sought TD and an award of increased benefits alleging violation of LC
132(a) and 5814 penalty.
The WCJ made an award of TD for time off work for industrially related medical treatment, a single 5814 penalty and benefits under LC 132(a) for discrimination.
“. . .Temporary disability indemnity serves as wage replacement during the injured worker’s healing period for the industrial injury. In contrast, permanent disability indemnity compensates for the residual handicap and/or impairment of function after maximum recovery from the effects of the industrial injury have been attained. Permanent disability serves to assist the injured worker in his adjustment in returning to the labor market. . .
. . .an employer’s obligation to pay TDI to an injured worker ceases when such replacement income is not longer needed. . .when the injured employee either returns to work or is deemed able to return to work, or when the employee’s medical condition achieves permanent and stationary status. . .”
Department of Rehabilitation/State of California v. WCAB (Lauher) 68 CCC at pgs. 836-837.
Editor’s Comments: In addressing the applicant’s entitlement to increase benefits under Labor Code 132(a) discussed and defined what constitutes
“discrimination” by employer as requiring “different and adverse/detrimental treatment” by the employer due to the applicant having filed/expressed intent to file for a work related injury.
.
The California Supreme Court reversed concluding that the applicant is not entitled to TDI to compensate him for wages lost due to attending medical appointments during the workday. Further, reimbursement of wage loss due to attending medical appointments are not required under LC 4600 as “reasonable required” costs “necessary to cure or relieve” the effect of the injury.
The Court also reversed as to the award of penalties and additional benefits under 132(a) as no legal right existed as to TD and all employees were required to use their sick leave or vacation time when absent from work.
th
Applicant, terminated absenteeism, filed a claim for industrial injury, and a petition alleging violation of Labor Code
132(a). Pacific Bell/employer had an attendance policy that provided automatic for after suspension being excessive pending termination for eight unexcused
“. . .A Worker demonstrates a prima facie showing of a Labor Code section 132a violation by proving that as a result of an industrial injury, the employer engaged in conduct detrimental to the worker. . .If the worker makes this showing, the burden shifts to the employer to show that its conduct was necessary and directly linked to the reality of doing business. . .section 132a expresses a policy opposing all discrimination against workers based solely on their having been injured in the course of employment. . .
Zapeda v. WCAB (2004) 68 CCC at pgs. 1332-1333.
Editor’s comments: The Court made it clear that the fact that the employer took some action or was involved in some conduct which caused detriment to an injured employee is not sufficient without evidence establishing the conduct was based solely on their having been injured at work. tardies in a calendar year.
Applicant had received warnings to tardiness, and had received a one-day suspension due to poor attendance.
Applicant had been tardy nine times at the time she was terminated. The WCJ denied applicant’s 132(a) petition.
WCAB denied reconsideration.
The Court of Appeal in upholding the WCAB determined the applicant failed to prove the industrial injury

caused her tardiness. The Court found “applicant was properly terminated for excessive tardiness and that there was no casual connection between her injury and the workers’ compensation claim and the termination.” The Court also determined that the applicant in a 132(a) petition required that the employer engages in the conduct detrimental to the worker.
Applicant had made a total of 32 written complaint to her supervisor about a co-worker’s conduct, which include alcohol abuse. The applicant’s supervisor’s response was that they had been dealing with the co-employee’s drinking problem for over 17 years. The applicant was injured when the co-worker, walking down the hall at work smelling like tequila, fell onto the applicant breaking applicant’s chair and causing the applicant to strike her face on the desk, falling to the floor with the co-worker falling on top of her. Although the industrial injury was accepted, applicant also filed a petition seeking increased benefits pursuant to LC 4553 alleging serious and willful misconduct on the part of the employer.
After hearing, the WCJ concluded that although there was no doubt the co-employee’s alcohol abuse caused applicant’s injury, and that the co-employee’s alcohol abuse had been repeatedly reported to the employer, no evidence was presented that the employer knew that the co-employee’s alcohol abuse was likely to cause injury or harm to another employee.
Therefore the WCJ found for the
§ 4553. Misconduct of employer; Increase of compensation
The amount of compensation otherwise recoverable shall be increased one-half, together with costs and expenses not to exceed two hundred fifty dollars ($250), where the employee is injured by reason of the serious and willful misconduct of any of the following:
(a) The employer, or his managing representative.
(b) If the employer is a partnership, on the part of one of the partners or a managing representative or general superintendent thereof.
(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.
employer. Applicant sought reconsideration.
The WCAB noted that negligence, no matter how gross was insufficient to sustain a finding of serious and willful misconduct on the part of the employer. The Board wrote that for serious and willful misconduct to be found it must be shown that the employer (1) knew of the dangerous condition, and (2) knew that the probable consequences of the condition would involve serious injury to an employee, and (3) failed to take corrective action.
(Mercer-Frazier Company v. IAC 18 CCC 3; John-Manville v. WCAB 44 CCC 878). In reversing the WCJ the
WCAB noted that at least five supervisors were aware of the co-employee’s frequent intoxication and should have known that that conduct was a condition that presented a serious risk of injury to those around him. In spite of this fact no action by the employer was taken. An S & W may be based on evidence the employer deliberately chose to ignore a condition which presented a serious risk of harm and injury.
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Applicant sustained injury on 8/25/08 which resulted in his death. On 8/20/09 the applicant’s widow’s attorney filed, but did not serve a petition for serious and willful misconduct. On 11/6/09 an amended S&W petition was filed and served on the employer. The employer asserted the one year statute of limitations as a bar to the petition. This issue was submitted to the
WCJ who held for the applicant. On reconsideration the WCAB upheld the WCJ arguing that the delay did not seem sufficiently
Editor’s Comments: This decision should not be construed as requiring filing and service of the petition for S&W within one year from the date of injury.
However, the prudent practitioner will both file and serve within one year out of fear that the employer will argue that the delay in service has resulted in being misled or prejudice justifying application of the one year statute of limitation under LC 5407.
egregious to warrant barring the claim.
On review, the Court of Appeal discussed that LC 5407 specifically requires only that the proceedings be “commenced” within 12 months from the date of injury. Citing two separate cases the Court noted that “commenced” connotes only filing, not filing and serving. The Court also noted that although LC 5400 provides that “no claim to recover compensation shall be maintained unless. . .there is service upon the employer” , this section goes on to provide that “any defect or

inaccuracy in a notice is not a bar to recovery. . .if it is found . . .that the employer was not in fact misled or prejudiced by such a failure.” In this matter the employer neither asserted being misled, or prejudiced, and further did not contest the WCJ’s conclusion that the employer was not misled or prejudiced. Review denied.
Applicant sustained injury when she was attacked by an unruly student on a bus. The student had a history of violence and had been recommended for a remedial program. The student’s parents had resisted placing their son in a remedial program. A decision was made to place the student in a special educational program for emotionally disturbed students. This program had a 50-day waiting period and the student’s mother demanded that her son continue to attend regular class during this period. It was during this period that the applicant was assaulted.
The WCJ found for the applicant on the Petition Seeking Increased Benefits alleging Serious and Willful
Misconduct. The WCJ relied on the fact that the School District knew about the student’s propensity for violence and failed to take adequate measures to protect the applicant.The decision of the WCJ was upheld by the WCAB.
The Court of Appeal reversed holding that the applicant must show that the School District had
“deliberately” failed to act for the applicant’s safety. The Court emphasized that the standard is that the conduct must be “serious and willful,” not a mere standard of negligence. Willfulness requires that the conduct be deliberate. The Court found that the evidence was clear that the School District had made some effort to remedy the situation.