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Gelson's Markets, Inc. v. Workers' Compensation Appeals Board

November 13, 2009


PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board. Annulled. (W.C.A.B. Nos. MON 0332851 and MON 0332852).

The opinion of the court was delivered by: Kitching, J.



Labor Code section 132a*fn1 penalizes an employer who discriminates "in any manner" against an employee who has filed a workers' compensation claim or received a rating, award, or settlement. An employer, Gelson's Supermarkets (Gelson's), petitions this court pursuant to section 5950 seeking annulment of a Workers' Compensation Appeals Board (WCAB) decision and award which found Gelson's liable for discrimination against an industrially injured employee, Paul Fowler, because Gelson's did not accept a physician's release to allow Fowler to return to work. In making this determination, the WCAB did not apply the standard established by the California Supreme Court in Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281 (Lauher). To establish a prima facie case of discrimination prohibited by section 132a, an employee must show that he suffered an industrial injury and that the employer caused him to suffer some detrimental consequence as a result. The employee must also show that the employer singled out the industrially injured worker for disadvantageous treatment because of the industrial nature of his injury, and treated the industrially injured employee differently by making him suffer disadvantages not visited on other employees because the employee was industrially injured or had made a workers' compensation claim. Fowler failed to make a prima facie case of discrimination against Gelson's under this standard. The WCAB award finding Gelson's liable for discrimination pursuant to section 132a must therefore be annulled.


Applicant Paul Fowler worked as an order puller/machine operator for Gelson's Supermarkets. He sustained an industrial injury to his neck, and his treating physician, Frank Badin, M. D., took him off work on August 3, 2004. On March 1, 2005, a neurosurgeon performed a cervical fusion on Fowler. His claim of industrial injury to his neck while working for Gelson's was addressed by the April 19, 2007, entry of a stipulated award of 20 percent permanent disability and future medical treatment.

Fowler inquired about returning to work, and produced a release for activity permit from Dr. Badin. The permit stated that Fowler could return to work on June 27, 2005, with his use of a forklift and "Raymond" reach-fork truck limited to one hour per day. Kelli Garcia, a Gelson's risk manager who managed workers' compensation and insurance for injured workers, received Dr. Badin's release for Fowler. Garcia thought the note was not clear and did not provide Gelson's with enough information about Fowler's restrictions. Garcia testified that she needed to make sure Fowler was capable of performing all functions of his job, and the release specified only a small and insignificant aspect of Fowler's job. Garcia needed to make sure that Dr. Badin had Fowler's physical job description and knew what Fowler's work for Gelson's involved. She therefore telephoned Dr. Badin, and asked him if he had the job description of Fowler's job functions; Dr. Badin said he thought he did but was not sure. Dr. Badin also told Garcia that he really did not feel Fowler should be returned to work, and thought Fowler should stay Temporarily Totally Disabled.

After talking to Dr. Badin, Garcia advised Fowler on June 24, 2005 that Gelson's was not able to accommodate these restrictions. Garcia then received a second release for activity from Dr. Badin, dated June 27, 2005. It stated that Fowler could return to work with "no restrictions." Garcia believed something was wrong, given Dr. Badin's first note containing a restriction and his statement that he thought Fowler should be Temporarily Totally Disabled. On July 6, 2005, Garcia wrote a letter to Dr. Badin stating that Gelson's could not return Fowler to work, and stating that the two release for activity forms Fowler had submitted from Dr. Badin "are both confusing and inconsistent based on his recent [March 2005] major surgery. Upon calling your office for clarification, we were given no medically supported explanation for the change in Mr. Fowler's restrictions over the seven (7) day period and in particular the second note did not explain the apparent contradiction with the first note." Garcia's letter requested that Dr. Badin review the job description of the physical requirements of Fowler's job, and comment on Fowler's ability to perform essential job functions with or without an accommodation, before Gelson's could determine whether to return Fowler to work. Garcia testified that Gelson's needed to know Fowler's restrictions if he was not ready to return to full duty, and needed to be certain Fowler had no further injury. Garcia's letter to Dr. Badin stated: "Specifically, can Mr. Fowler perform the essential functions of the job of Order Selector, either with or without reasonable accommodation?"

Dr. Badin responded in a July 18, 2005, letter: "I reviewed the description of employee's job duties with Mr. Paul Fowler. Mr. Fowler is of the impression that he can carry out his job duties. Mr. Fowler is, therefore, released to return to his job as a stacker machine operator/order selector with no restrictions." Garcia did not return Fowler to work after receiving Dr. Badin's letter, because in their previous conversation Dr. Badin told Garcia that he did not want to return Fowler to work but Fowler wanted to work. On July 20, 2005, Garcia wrote to Dr. Badin that Gelson's did not accept Dr. Badin's July 18, 2005, letter because it said Fowler felt he was able to return to work and therefore he should be able to return to work. Garcia wanted Dr. Badin's expert medical opinion about whether Fowler could return to work and with what restrictions. Garcia never received that expert medical opinion from Dr. Badin, who stopped responding and did not return Garcia's phone calls.

Fowler and Gelson's agreed to submit Fowler to an agreed medical examiner, Dr. Angerman. After examining Fowler, Dr. Angerman served Gelson's with a copy of his report on September 22, 2006. The report stated that Fowler retained factors of permanent disability regarding the cervical spine. These included intermittent minimal to slight pain on most occasions, becoming more than slight and occasionally slight to moderate with prolonged motions of the cervical spine, and decreased range of motion of the cervical spine. With regard to work restrictions, Dr. Angerman stated: "I do not feel he requires formal work restrictions referable to the cervical spine as he presents with a good surgical result following the single level decompression and fusion at the C5-6 level. From an orthopaedic standpoint, in all medical probability, it is felt the patient has lost 25% of his pre-injury capacity for lifting, pushing, pulling, prolonged motions of the cervical spine and prolonged overhead work activities." With regard to vocational rehabilitation, Dr. Angerman's report stated:

"The patient states he feels capable of returning to his usual and customary job activities as described. It is felt that an attempt to return this patient to his usual and customary job duties is warranted, however, if there is any increase in his symptomatology then he would be a Qualified Injured Worker. I feel he should be given the option of returning to his usual and customary job activities. Therefore, the patient is not a Qualified Injured Worker and vocational rehabilitation is not indicated."

Garcia concluded that Dr. Angerman's report was inconclusive and that Gelson's needed clarification from Dr. Angerman. Dr. Angerman's report stated that Fowler should be given the option of returning to his usual job activities. In the previous paragraph Dr. Angerman gave no restrictions, but also said Fowler had lost 25 percent of his pre-injury capacity. Garcia received no information about what Fowler's pre-injury job capacities were for lifting, pushing, pulling, and prolonged motions, and needed clarification about what Fowler was currently able to lift. Garcia could not determine whether Fowler's loss of 25 percent of job capacity caused him to fall below the job requirements in Gelson's job description. Garcia did not return Fowler to work after Dr. Angerman's report, because as distinct from Fowler's opinion, Gelson's still had received no physician's medical opinion as to whether Fowler could return to work.

Dr. Angerman resolved the question in his December 1, 2006, deposition. Dr. Angerman testified that he thought Fowler could probably perform his usual and customary job. Based on Dr. Angerman's deposition testimony, Gelson's returned Fowler to work on January 8, 2007.

Fowler filed a petition for benefits and increased compensation under section 132a, claiming back pay from June 27, 2005, to January 6, 2007, and a $10,000 statutory penalty. The Workers' Compensation Administrative Law Judge made findings. First, because Dr. Badin's June 20, 2005, and June 27, 2005, releases were ambiguous and contradictory and Garcia attempted to clarify these ambiguities with Dr. Badin, Gelson's failure to reinstate Fowler on June 27, 2005, did not violate section 132a. Second, because Dr. Angerman's report was ...

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