Problems with work release justify delayed return to work

Under California law, to show that an employer discriminated based on a work-related injury, the employee must demonstrate that the employer would have treated a worker who suffered a nonwork-related injury differently. An action that is detrimental to an employee does not necessarily mean that the employer singled out the employee for discrimination based on the nature of his injury.

Case name: Gelson's Markets, Inc. v. Workers' Comp. Appeals Bd. and Fowler, No. B209336 (Cal. Ct. App. 11/13/09).

Ruling: The California Court of Appeal annulled a finding that an employer engaged in discriminatory conduct when it refused to allow a claimant to return to work.

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What it means: California law penalizes an employer who discriminates "in any manner" against an employee who files a workers' compensation claim or who receives benefits. To show that an employer discriminated based on a work-related injury, the employee must demonstrate that the employer would have treated a worker who suffered a nonwork-related injury differently. An action that is detrimental to an employee does not necessarily mean that the employer singled out the employee for discrimination based on the nature of his injury.

Summary: A machine operator suffered a work-related neck injury. His doctor released him with significant restrictions. A manager thought the release was not clear and did not provide enough information. At the operator's insistence, the doctor issued another note releasing him without work restrictions. The manager contacted the doctor, contending there was no medically supported explanation for the change in restrictions over a seven-day period. After a second medical opinion, the employer allowed the operator to return to work. He sought increased compensation, back pay, and a $10,000 penalty for the employer's refusal to let him return to work. The Court of Appeal rejected his arguments. The court held that the operator failed to show that he was singled out for disadvantageous treatment because of the work-related nature of his injury. Specifically, the operator failed to show that the employer would have allowed an employee with same medical releases who was not injured on the job to return to work.

The court pointed out that an employer does not necessarily engage in discrimination because it requires an employee to "shoulder some of the disadvantages of his [work-related] injury." It noted that the antidiscrimination law is intended to prohibit treating injured employees differently, making them "suffer disadvantages not visited on other employees because the employee was injured or had made a claim." The operator had not provided information indicating any disadvantageous treatment was based on his work-related injury or his claim, and thus, he failed to establish the employer's conduct was discriminatory.

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January 18, 2010

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