Separate Pilar Abratte, Petitioner v. Workers' Compensation Appeals Board, County of Los Angeles, Respondents

Civil No. B134844--

Court of Appeal, Second Appellate District, Division Seven

WARNING - CASE NOT PUBLISHED:

This opinion is not published in official reports and therefore not citable in judicial actions or proceedings. See Cal. Rules of Ct., Rule 977.

DISPOSITION:

Disposition: Proceeding to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded.

Counsel: For petitioner--Lewis, Marenstein, Wicke & Sherwin, by Karin V. L. Gomez
For California Applicants' Attorneys Association as amicus curiae on behalf of petitioner--Farrell, Fraulob, Brown & Gant, by Larry Drasin and Paul R. Gant,
For respondent County of Los Angeles--Jenkins, Petersen & Clewis, by Monroe Thomas Clewis
For City of Los Angeles as amicus curiae on behalf of respondent County of Los Angeles--James K. Hahn, City Attorney, Garrett Kuehn, Assistant City Attorney, Robert M. Unruh, Deputy City Attorney
For County of San Diego as amicus curiae for respondent County of Los Angeles--John J. Sansone, County Counsel, Diane Bradsley, Assistant County Counsel, Edmund E. Mozulay and Miriam E. Brewster, Senior Deputies

OPINIONBY: Opinion By: Johnson, J.

OPINION: INTRODUCTION

Petitioner, Pilar Abratte, was industrially injured while working for the County of Los Angeles (County). When her inability to return to work continued for more than one year from the date of injury, the County's contributions to health insurance and accrual of sick and vacation time ceased pursuant to the Los Angeles County Code and an agreement with Abratte's union.

Abratte claimed this was discriminatory under the Labor Code because there was insufficient showing of business necessity for such action. The Workers' Compensation Appeals Board (WCAB) determined the County acted pursuant to valid business purposes, and that the work benefits claimed are earnings, which are fully compensated by temporary disability provided under the Labor Code.

We find sufficient business necessity was not presented, and annul and remand the matter for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Pilar Abratte, a medical technologist for the County of Los Angeles, admittedly sustained bilateral carpal tunnel syndrome to her wrists while at work from February 1, 1979, to August 17, 1995. Abratte was intermittently temporarily totally disabled beginning on or about August 25, 1995, had surgical left carpal tunnel release on March 21, 1996, right carpal tunnel release on July 23, 1996, and was further disabled from July 23, 1996, through November 16, 1997.

Pursuant to Los Angeles County Code (LACC) section 6.20.070(C), 70 percent of Abratte's salary, which included owed workers' compensation benefits, continued to be paid for periods up to one year from the date of injury. During this time set contributions by the County toward Abratte's health insurance also continued pursuant to a MEMORANDUM OF UNDERSTANDING FOR SUBMISSION TO BOARD OF SUPERVISORS REGARDING FRINGE BENEFITS (MOU) with Abratte's union, the Local 660. According to the MOU the County contributed certain amounts toward an employee's health insurance, with any remaining money to be taxable income, as long as the employee was in pay status for at least eight hours during the preceding month.

In addition, during the one-year period following her injury, Abratte accrued sick and vacation days according to LACC section 6.20.070(F)(2),
which further provides such accrual ends when salary continuation ceases and an employee is only entitled to workers' compensation benefits.

By letter from the County's claims representative, Abratte was notified her salary continuation expired on August 17, 1996, and she would begin receiving workers' compensation temporary total disability benefits at the rate of $448 per week. Abratte was later informed she would have to pay $405.51 monthly to sustain her health insurance, which she did less her dental coverage.

Abratte subsequently filed a petition alleging that the County's discontinuance of health insurance contributions and accrued sick and vacation days due to being temporarily totally disabled was discriminatory under Labor Code section 132a.

Section 132a in relevant part states, '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. [P ] (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 . . . 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.'

For trial Abratte's brief alleged the County was subject to section 132a pursuant to section 4155, and county ordinances and union agreements did not excuse terminating work benefits due to an industrial injury without a showing of business necessity under the leading case of Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658 [150 Cal. Rptr. 250, 586 P.2d 564, 43 Cal. Comp. Cases 1205]. In Judson Steel Corp. a crane operator lost his seniority under a union contract for being disabled 12 consecutive months due to an industrial injury, and as a result was laid off with other employees. Since the 12-month period was normally extended but the employer failed to contact the union, the Supreme Court determined the termination to be discriminatory under section 132a. In addition, the Supreme Court applied liberal construction under section 3202, and further stated that a union could not bargain away its members' statutory rights under section 132a, although an employer is not compelled ' . . . to ignore the realities of doing business by 'reemploying' unqualified employees or employees for whom positions are no longer available.' (Judson Steel Corp., supra, 22 Cal.3d at p. 667.)

Abratte also cited cases which found discrimination under section 132a for discontinuance of fringe benefits during shorter periods of temporary disability. In Beverly Hospital v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 491 (writ den.), a cook was industrially injured and temporarily disabled after working for more than 90 days, which was sufficient to qualify for the hospital's health insurance. However, hospital contributions and the insurance coverage stopped months later, allegedly because vesting had not occurred while the employee was considered on a 'leave of absence' on the first of the month following the 90 days.

In Maraviov v. Tenet Health Systems Hosp., Inc. (1997) 25 California Workers' Compensation Reporter 341, section 132a discrimination was found when employer contributions for health insurance were terminated after 12 weeks of disability according to the leave of absence policy, even though the cost to contribute for all employees off work could exceed a million dollars. The WCAB further held the matter was not preempted by ERISA.

Similarly, canceling health benefits of a mover who had injured his left knee and missed work for 90 days violated section 132a, even though the insurance could have been continued by COBRA payments made by the injured worker. (Schick Moving Systems v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 1307 (writ den.).)

Finally, Abratte asserted a showing of intentional discrimination is not required if detriment resulted from the industrial injury and the County's action, citing County of Santa Barbara v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 211 [167 Cal. Rptr. 65, 45 Cal. Comp. Cases 872] (following industrial injury deputy sheriff impermissibly demoted reducing pay and compensation rate, even though solely due to inability to do job as with all injuries) and Shoals v City of Los Angeles (1989) 17 California Workers' Compensation Reporter 75 (unnecessary to show intentional discrimination in demoting police officer following an industrial injury; remanded also to develop the record regarding business realities).

The County countered that public employers do not discriminate by following local ordinances, which are more specific than section 132a and thus control according to Stemler v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 577 [251 Cal. Rptr. 364, 53 Cal. Comp. Cases 390]. In Stemler a Cal-Trans employee did not receive a $50 bonus under a union contract due to time lost while disabled from an industrial injury. Nevertheless, the Court of Appeal noted that Government Code section 19994.20 authorized such a bonus program, which prevailed in any conflict with the more general section 132a considering Code of Civil Procedure section 1859.

At trial Abratte testified she had returned to work, and confirmed that after one year following her injury she had to pay her health benefits and sick and vacation time no longer accrued.

The County called Naidu Permaul, who managed the Office of Administration of Benefits. Permaul essentially testified County contributions towards health benefits cease when an employee is no longer on pay status pursuant to the union agreement and county codes. Permaul further stated that the budget was 13 billion dollars, there were approximately 78,000 County employees with 1,000 workers on no-pay status per month, which could cost 4 million dollars in premiums. However, Permaul had no idea how many employees were off work for industrial injuries, nor the cost of these premiums.

The workers' compensation judge (WCJ) determined that the County had not discriminated under section 132a. In the opinion on decision, the WCJ concluded valid business purposes were intended by the longstanding county ordinances and the MOU, which were applied without concern for whether an industrial injury was involved, and actually discriminated in favor of Abratte by extending benefits without her having to work.

In addition, the WCJ reasoned that since employees while temporarily totally disabled were limited to the compensation set forth in section 4653
and not entitled to earnings, and paid vacation was considered earnings for work already performed according to Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1 [272 Cal. Rptr. 134], Abratte was not entitled to further accrual of sick and vacation days as these benefits were not being earned.

Abratte petitioned for reconsideration with the WCAB. Abratte added to her trial brief that the State had preempted workers' compensation, although counties were authorized to adopt additional regulations or address subjects not covered, according to Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573 [109 Cal. Rptr. 260]. Abratte also distinguished Henry as not addressing workers' compensation, accrual of sick days or other fringe benefits.

In addition, Abratte contended a negotiated agreement, even if longstanding, did not necessarily mean it was nondiscriminatory or a business necessity. She also argued it was an unconscionable burden and a severe detriment for a temporarily disabled worker to pay almost $400 a month for insurance from $448 per week, especially after salary continuation and employer contributions ceased. Furthermore, under Smith v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 1104 [199 Cal. Rptr. 881, 49 Cal. Comp. Cases 212], it was the County's burden to show its actions were necessitated by the realities of doing business and Permaul did not testify of the cost of premiums for industrially injured workers in off-pay status.

The County answered by adding to its trial brief that section 132a does not override article XI, section 5, subdivision (a) and section 6, subdivision (b)
of the California Constitution, which provides local governments with exclusive authority concerning employee wages. The County further contended it was not discriminatory to carry out agreements with organizations representing its employees, as sanctioned by Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296 [152 Cal. Rptr. 903, 591 P.2d 1]. In that case the state Legislature conditioned monetary assistance to local governments for lack of funds caused by Proposition 13 on not giving employees cost-of-living increases as agreed under union contracts. The Supreme Court found such terms to be an infringement of municipal government's constitutional right to contract with unions and determine wages, which was not preempted by a justifiable state concern.

In addition, the County distinguished Judson Steel Corp. as involving seniority rights, and the WCAB cases cited by Abratte as also pertaining to private employers and much shorter periods of temporary disability when benefits ended. The County concurred with the WCJ that the benefits in issue must be earned as indicated in Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774 [183 Cal. Rptr. 846, 647 P.2d 122] (paid vacation equated with deferred wages for services rendered, which section 227.3 prevented from forfeiture upon termination), and further alleged the annual savings to taxpayers was 4 million dollars.

In the report on reconsideration the WCJ essentially repeated the reasons stated for the decision. The WCAB adopted the WCJ's report and denied reconsideration.

Abratte filed for review incorporating her previous arguments. Abratte also points out that under section 4453, subdivision (c)(1) the definition of average weekly earnings, from which temporary total disability is calculated, does not include the value of health insurance or sick and vacation days. Abratte reasons that since these items are not treated as earnings, and thus are fringe benefits as confirmed by the actual title of the MOU, section 132a controls.

Abratte still maintains her rights cannot be bargained away under Judson Steel Corp., business necessity was not shown by longstanding union agreements, ordinances or Permaul's testimony, and it is not excuse discrimination was unintentional when the detriment was caused but for the industrial injury.

In elaborating its prior position the County answers that Judson Steel Corp. did not consider nor include local governments which act under constitutional authority concerning wages, nor hold every resulting detriment discriminatory such as receiving temporary disability in lieu of earnings. The County also maintained health insurance, sick and vacation days are earned benefits, a 12-month extension was reasonable and much greater than the time determined discriminatory by the cases cited by Abratte, and an increase would cost 4 million dollars annually plus the statutory penalties.

As amicus curiae, the California Applicants' Attorneys Association (CAAA) advocates that Judson Steel Corp. parallels this case because seniority rights are earned, which were taken away after a 12-month absence due to an industrial injury and later found discriminatory despite a union agreement. CAAA further claims the County failed to show it was too costly to continue Abratte's benefits similar to Barns v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 524 [266 Cal. Rptr. 503, 54 Cal. Comp. Cases 433].

Barns was a green chain puller of heavy lumber who injured his left middle finger, was given light duty and later returned to his regular job when the tendon in his finger snapped leading to surgery. The employer subsequently refused to offer light duty even with the surgeon's approval. When Barns entered vocational rehabilitation his job and fringe benefits, including health insurance and accrual of vacation and holiday time, were terminated allegedly to avoid reinjury. Thereafter, Barns was released to full duties by his surgeon, but the employer refused to reinstate him, hiring others with less experience.

The Court of Appeal held business necessity had not been shown. A full release was unnecessary for light duty since Barns had previously been given such an assignment. A supervisor's hunch could not establish fear of reinjury because Barns was improving and had not been discharged from treatment, while participating in vocational rehabilitation did not necessarily mean he could never do the job. In regards to fringe benefits, there was no evidence it was necessary to cut costs before the physician's final evaluation, or that the expenses would continue indefinitely.

CAAA also points out that section 132a has been applied in many public entity settings, such as Jordan v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 162 [220 Cal. Rptr. 554, 50 Cal. Comp. Cases 688] (utility company phone operator who had been given three 6-month leaves of absences as allowed under union contract not entitled to another absent at least a showing of ability to perform job), City of Richmond v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 42 (writ den.) (sergeant improperly transferred due to industrial heart trouble resulting in cut in pay), County of Santa Barbara and Shoals.

The County responds that neither Judson Steel Corp. nor any case addresses governmental bodies acting pursuant to law authorized by the Constitution rather than internal policy, which should distinguish public entities. Furthermore, the County should not be penalized under section 132a for following the law, treating alike all employees missing work is not the issue and a cost of 4 million dollars a year established business necessity.

The City of Los Angeles has also filed an amicus curiae brief. The City's contentions include that if fringe benefits are not treated as earnings, which is inconsistent with the Internal Revenue Code, a temporarily disabled employee earning a higher salary as a substitute for benefits would unfairly receive less than Abratte. Similarly, that employer would unequally escape exposure to penalties for paying only temporary disability, contrary to the County.

In addition, the City interprets Beverly Hospital as limited to whether the employee's right to health insurance vested rather than as the headnote indicates it is discriminatory to stop paying premiums after 90 days of temporary disability. Schick Moving Systems is also faulted for relying on Beverly Hospital, while Maraviov is discounted as not a writ denied case and for being reported by a trade periodical, without a copy having been provided under California Rules of Court, rule 977(c).

Finally, the City urges it is no more unfair for Abratte to pay her health insurance than to receive temporary disability instead of wages, workers' compensation is not intended to compensate all losses, costs would greatly increase and employers would avoid providing benefits such as health insurance.

The County of San Diego joined as amicus curiae. The County of San Diego points out that section 4453 only provides for two-thirds of wages up to a statutory maximum during periods of temporary disability, while section 4454 excludes certain benefits from the calculation of average weekly earnings. Since workers' compensation is a complete system of compensation, it is reasoned that section 132a should be harmonized and not interpreted as requiring additional benefits. Otherwise, to avoid discrimination an employer would have to continue full salary, stock options, bonuses, and social security contrary to sections 4653, 4453 and 4454.

The County of San Diego adds that terminating employment status, as in Judson Steel Corp., County of Santa Barbara, Barns and Beverly Hospital, is a detriment critically different than simply providing benefits as required by statute. In regards to Maraviov and Schick Moving Systems, which found termination of health benefits to be discriminatory, there was no attempt to harmonize section 132a with the compensation statutes, and writ denied cases although citeable are not binding on the Court of Appeal.

DISCUSSION

I. PUBLIC AGENCIES ARE SUBJECT TO SECTION 132a.

The state and other public entities such as the County are conclusively presumed to have elected to come within the provisions of workers' compensation under section 4155, while section 3300 defines employers to include, '(a) The State and every State agency. (b) Each county, city, district, and all public and quasi public corporations and public agencies therein.'

In addition, the WCAB and appellate courts have consistently applied section 132a to public as well as private employers, and no case has been cited exempting governmental entities from compliance. This is true even when the detriment due to the industrial injury was unintentional. (County of Santa Barbara; City of Richmond and Shoals.)

II. THE COUNTY ORDINANCES AND MOU DO NOT SUPERSEDE SECTION 132a.

The County has been given plenary authority concerning the wages of its employees, even over general state law. (Cal. Const., art. XI, ? 5, subds. (a), (b) and 6 subd. (b); Sonoma County Organization of Public Employees.) However, the Supreme Court further acknowledged that this power was subject to state law as to matters of statewide concern.

Section 4 of article XIV of the California Constitution in relevant part states, 'The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce, a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability . . . . A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers . . . to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment . . . . ' (Emphasis added.)

In addition, section 132a begins, '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.' (Emphasis added.)

It is clear from these laws that workers' compensation, and particularly discrimination against industrially injured workers, which were not issues in Sonoma County Organization of Public Employees, are subjects of unlimited statewide concern.

Healy v. Industrial Acc. Com. (1953) 41 Cal.2d 118 [258 P.2d 1], also involved such a conflict, between a city charter requiring deduction of pension payments from an award and the Labor Code prohibiting an employee from paying for compensation, even indirectly by contributing to the pension. The Supreme Court determined workers' compensation was of statewide concern and in such matters the general Labor Code prevailed over the more specific city charter.

Stemler, which deals with workers' compensation and section 132a, does not limit Healy. Stemler concerned two state statutes of different subject matter,
and more importantly without addressing the constitutional prospective. Section 132a, therefore, controls over the county ordinances in this case.

Similarly, terms of the County's agreement with the Local 660 must yield when conflicting with section 132a, nor can Abratte's union bargain away its members' statutory rights against discrimination. (Judson Steel Corp.)

III. SECTION 132a ENCOMPASSES EMPLOYMENT BENEFITS.

Section 132a specifically includes, ' . . . reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.' (Emphasis added.) Thus, there is no doubt the statute extends to employment benefits, in addition to lost wages, especially considering section 3202.

The statute also does not distinguish between job benefits and wages in order to treat recovery for these items differently, but allows for all such losses no matter how classified. Further, there are no express limitations on the type or extent of benefits to be reinstated or reimbursed.

Case law further supports the application of section 132a to various work benefits, such as health insurance and accrual of vacation and sick days. Judson Steel Corp. addressed the improper loss of seniority rights leading to termination. Barns found there was insufficient justification to terminate fringe benefits such as health insurance and the accrual of vacation and holiday time. The canceling of health insurance during periods of temporary disability violated section 132a in Beverly Hospital, Maraviov and Schick Moving Systems, which cases are properly citeable. (See fn. 6, ante.)

While sections 4653, 4453 and 4454 define what is to be included in calculating average weekly earnings, which is compensated by temporary disability payments, and other categories of benefits are excluded from the calculation, and in Henry and Suastez vacation is part of wages under labor law, it does not automatically follow discontinuing health insurance contributions or accrual of sick and vacation time is beyond the reach of section 132a. Otherwise, employees could lose these critical benefits at any time after an industrial injury upon payment of temporary disability, no matter how serious the injury or the circumstances. Such a result would be contrary to, and not harmonious with, the state Constitution which provides for the general welfare of all workers to the extent of relieving from the consequences of any industrial injury.

Furthermore, the phrase 'in any manner discriminates' set forth in section 132a comprehensively includes other ways an employer commits discrimination not covered by discharge, or threatening to discharge. (Judson Steel Corp. and Smith.) Acts in any manner that are discriminatory can involve issues of earnings, such as pay cuts because of an industrial injury,
and earnings therefore are not excluded under the statute. In other words, the facts of each case must be harmonized with the realities of doing business under Judson Steel Corp. rather than with how earnings are defined for purposes of establishing the temporary disability rate.

IV. BUSINESS NECESSITY

Once the injured worker demonstrates detrimental actions occurred due to the industrial injury, the burden shifts to the employer to show that the actions were necessitated by the realities of doing business, often referred to as business necessity. (Judson Steel Corp.; Smith and Barns.)

In this case the County essentially concedes detriment to the stoppage of benefits due to the industrial injury and inability to work after surgery. However, the County and amicus curiae have provided a variety of other reasons why these benefits are not owed, some of which have been already addressed.

A. Business Necessity When The Alleged Discriminatory Act Occurred

The WCJ concluded that the County's valid business purpose for entering into the MOU basically satisfied business necessity. However, agreements cannot bargain away section 132a rights (Judson Steel Corp.), and there was no specific evidence why benefits needed to be terminated before Abratte returned to work (Barns), other than the previously existing MOU and county ordinances.

Although Permaul testified the cost factor was 4 million dollars, he had no idea of the number of industrially injured workers in off-pay status, nor could he estimate these costs, just as in Maraviov. Thus, the County's claim taxpayers could pay 4 million dollars annually for extending benefits in cases of industrial injury is unsubstantiated by the record, and the significance of the actual costs in a 13 billion dollar budget is unknown.

B. Work Benefits Need Not Be Extended Beyond Business Necessity.

In order to reasonably limit the continuance of work benefits following an industrial injury, case law such as Barns provides for a showing of business necessity to justify ending benefits, even before an injured worker is released from treatment or returns to work. However, as in Barns no such showing was made in this case.

Furthermore, extending work benefits even beyond one year from the date of injury may be reasonable absent sufficient business necessity. (Judson Steel Corp.; Kaiser Permanente Group.) Cases such as Abratte's generally involve more serious injuries, prolonged periods of treatment and disability, and greater economic hardship.

The City alleges employers will pay higher salaries in lieu of needed health care for workers in order to avoid extension of fringe benefits and to limit liability to temporary disability. There is no evidence this has happened under well-established law, or that it would be more economical or practical to do so. On the contrary, despite these factors the County agreed to continue work benefits for a year.

DISPOSITION

The decision of the WCAB is annulled and remanded for further proceedings consistent with this opinion. In addition, considering the unique and complex issues addressed, the County shall also be provided further opportunity to develop the record regarding business necessity as set forth herein. (Shoals.)

I concur:

CONCURBY:
Lillie, P.J.
Concurring Opinion By: Neal, J.

CONCUR: I concur in the majority's decision, but only because I believe it compelled by Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658 [150 Cal. Rptr. 250, 586 P.2d 564, 43 Cal. Comp. Cases 1205]. In my view the Supreme Court should overrule Judson, for the reasons briefly explained below.

Petitioner, Ms. Abratte, was an employee of Los Angeles County, and a member of a County employees union. The collective bargaining agreement provided for Abrattte (and thousands of other County employees) to receive, in addition to a base salary, 'flex earnings' which could be received in cash or earmarked to pay premiums for health (and other) insurance. Abratte elected that her flex earnings go to pay health insurance premiums.

The collective bargaining agreement further provided that disabled employees would receive 'salary continuation' for a full year after a disabling injury, after which salary, including 'flex earnings,' vacation pay, and sick leave, would cease, and the employees would receive workers' compensation benefits instead.

Abratte became disabled as a result of a work-related injury. She received salary continuation for one year, and then, consistent with the collective bargaining agreement, salary continuation, 'flex earnings' payments for her health insurance premiums, vacation pay, and sick leave were terminated, and she began getting workers' compensation.

Abratte contends that termination of the insurance payments, vacation pay, and sick leave unlawfully discriminated against her, in violation of Labor Code section 132a.

By its terms Labor Code section 132a prohibits discrimination against an employee because she has filed or intends to file an application for workers' compensation, or has testified in another employee's workers' compensation case. In other words, the section bars employers (and insurers) from treating employees differently in retaliation for invoking rights under the workers' compensation law. As Justice Richardson observed in his dissent in Judson (joined by two other justices), section 132a is narrowly focused and prohibits only discrimination in retaliation for filing a workers' compensation claim, or testifying in a proceeding. '[S]ection [132a] clearly was intended to assure that an employee would not be penalized by his employer merely because he exercised his legal right to invoke appeals board procedure.' (Judson, supra, 22 Cal.3d at 669, emphasis added.) Richardson criticized as 'faulty' the 'majority's . . . premise that section 132a and its penal award provisions apply to every kind of employer discrimination, and not only those acts specified in that section.' (Id. at 670.)

I agree with Justice Richardson. Section 132a, properly construed, applies only to discrimination in retaliation for invoking workers' compensation rights. It does not generally prohibit treating disabled workers who are no longer on the payroll differently from those remaining fully employed. Indeed, the workers' compensation law explicitly requires substantially different treatment for disabled workers, specifying, for example, that disabled workers shall receive disability payments of only a fraction of their average weekly earnings when fully employed. (Lab. Code, ? 4653, 4658.)

There is no evidence here that County discriminated against Abratte because she filed a workers' compensation claim. There is no evidence County would have acted differently had Abratte not sought workers compensation at all. County was entitled under the agreement to end the flex benefits after a year regardless of whether or not Abratte sought workers' compensation, and County has agreed to treat thousands of other County employees in the same way if they leave employment because of disability.

Judson suggests that the County's termination of Abratte's benefits (and like treatment of other employees) can be justified only if required by 'the realities of doing business' (Judson, supra, 22 Cal.3d at 667), and the majority remands for analysis of County's policy under this test. But what does the test mean? For the County, 'doing business' means allocating scarce, finite revenues among a variety of essential services: fire and police protection, hospitals, child welfare, and so on. The County already has made an allocation, presumably after an appropriate political process. How is it now to determine whether it should allocate more money to benefits for disabled employees, and less for other services? The Labor Code provides no guidance; the 'realities of doing business' test does not appear there. Nor is the necessary guidance to be found in Judson, or in the majority opinion.


-------------------Footnotes-----------------

1 LACC section 6.20.070(C) in relevant part states, 'Any employee who is absent as a result of an industrial injury . . . deemed compensable by the director of personnel or the workers' compensation appeals board . . . shall receive compensation pursuant to the following: [P ] a. To receive the difference between 70.0 percent of his base salary and the sum of the benefits prescribed by the worker's compensation laws of the state of California . . . . Employees shall be eligible to receive such compensation for a period of one year from the date of injury.'

2 LACC section 6.20.070(F)(2) states, 'Employees who are absent under provisions of subsection D1 of this section shall not earn any vacation or sick leave for the duration of such absence.' Subsection D in relevant part states, 'After One Year. An employee, who is compelled to be absent as the result of a compensable industrial injury after one year from the date of injury . . . may elect one of the following: [P ] 1. To receive only those benefits provided under the worker's compensation laws of the state of California . . . .' In other words, sick and vacation days continue to accrue until the first year after the date of injury expires and only workers' compensation benefits are provided.

3 All further references to statute is to the Labor Code unless stated otherwise.

4 Section 4155 states, 'The State and each county, city, district, and public agency thereof and all State institutions are conclusively presumed to have elected to come within the provisions of this division as to all employments otherwise excluded from this division.'

5 Section 3202 states, 'This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.' Section 3202 has been held to apply to all aspects of workers' compensation, including factual as well as statutory issues. (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055 [40 Cal. Rptr. 2d 116, 892 P.2d 150, 60 Cal. Comp. Cases 316].)

6 WCAB panel decisions reported in the California Workers' Compensation Reporter are regarded as properly citable authority, particularly on the issue of contemporaneous administrative construction of statutory language. (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1995) 37 Cal.App.4th 675, 683, fn. 4 [43 Cal. Rptr. 2d 660, 60 Cal. Comp. Cases 717]; Griffith v. Workers' Comp. Appeals Bd. 209 Cal.App.3d 1260, 1264, fn.2 [257 Cal. Rptr. 813, 54 Cal. Comp. Cases 145].)

7 Employee Retirement Income Security Act of 1974, at Title 29, United States Code section 1001 et seq

8 The federal Consolidated Omnibus Budget Reconciliation Act of 1985, at Title 26, United States Code section 4980(B), and Title 29, United States Code section 1161 et seq.

9 Code of Civil Procedure section 1859 states in part, 'In the construction of a statute the intention of the legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.'

10 Section 4653 states, 'If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.' Under section 4453, subdivision (c)(1), average weekly earnings is arrived as follows: 'Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.'

11 Temporary total disability benefits are a substitute for wages under the Labor Code during the time an injured worker is incapacitated from working. (Edgar v. Workers' Comp. Appeals Bd. (1998) 65 Cal.App.4th 1 [76 Cal. Rptr. 2d 83, 63 Cal. Comp. Cases 703]; Ritchie v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174 [29 Cal. Rptr. 2d 722, 59 Cal. Comp. Cases 243] and Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227 [20 Cal. Rptr. 2d 26, 58 Cal. Comp. Cases 323].)

12 In Henry the Appellate Department of the Superior Court decided that since vacation was earned and thus vested, payment for unused vacation upon termination under section 227.3 could not be waived, considering Civil Code section 3513 (law established for public reason cannot be nullified by private agreement).

13 In Smith the Court of Appeal was not convinced the employer had met its burden of showing an excused absence rule was properly applied in firing a temporarily disabled worker. If the action was not necessary, commented the court, it was not linked directly to business realities, referring to Judson Steel Corp.

14 Section 5, subdivision (a) of article XI of the California Constitution states, 'It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.' Section 5, subdivision (b) states, 'It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: . . . (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.'

15 Section 6, subdivision (b) of article XI of the California Constitution states, 'A charter city and county is a charter city and a charter county. Its charter city powers supersede conflicting charter county powers.'

16 The statutory penalties do not include prosecution for a misdemeanor by the WCAB. (Ravert v. Taitak Int'l. Indus. (1976) 41 Cal.Comp.Cases 497, in banc.)

17 CAAA's brief also refers to writ denied cases citing Barns. In Kaiser Permanente Group v. Workers' Comp. Appeals Bd. (1993) 58 Cal.Comp.Cases 161 (writ den.), the WCAB found business necessity lacking in the firing of a nurse after she had not worked for over a year due to an industrial back injury. The court noted that Kaiser, a large employer, had hired temporary help and failed to contact the treating doctor regarding the nurse's ability to continue working. Scantibodies Laboratories Inc., v. Workers' Comp. Appeals Bd. (1991) 56 Cal.Comp.Cases 517 (writ den.) involved the firing of a medical technician, and loss of health benefits, while on temporary disability for a back injury. The employer contended it was too busy a time in sales, although admitting 20 employees, including temps, did the same job, and that the treating physician was not contacted. The WCAB and Court of Appeal found a lack of business necessity, and rejected the assertion that health insurance was unnecessary since medical treatment was provided under workers' compensation.

18 However, California Rules of Court, rule 977(c) refers to unpublished opinions, and see footnote 6, ante

19 Jimenez v. Workers' Comp. Appeals Bd. (1991) 1 Cal.App.4th 61 [1 Cal. Rptr. 2d 660, 56 Cal. Comp. Cases 682]. In this case Abratte's maximum rate was $448 per week.

20 Section 4454 states, 'In determining average weekly earnings within the limits fixed in Section 4453, there shall be included overtime and the market value of board, lodging, fuel, and other advantages received by the injured employee as part of his remuneration, which can be estimated in money, but such average weekly earnings shall not include any sum which the employer pays to or for injured employee to cover any special expenses entailed on the employee by the nature of his employment, nor shall there be included either the cost or the market value of any savings, wage continuation, wage replacement, or stock acquisition program or of any employee benefit programs for which the employer pays or contributes to persons other than the employee or his family.'

21 Edgar and section 3201 which states, 'This division and Division 5 (commencing with Section 6300) are an expression of the police power and are intended to make effective and apply to a complete system of workers' compensation the provisions of Section 4 of Article XIV of the California Constitution.'

22 Ralphs Grocery Co. v. Workers' Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 827, footnote 7 [45 Cal. Rptr. 2d 197, 60 Cal. Comp. Cases 840].

23 During oral argument the County raised Government Code section 53200 as a specific state statute which controls over the more general section 132a. However, Government Code section 53200 et seq. addresses group insurance and not workers' compensation.

24 (See County of Santa Barbara and Richmond.)