LOPEZ vs. LUIS SOSA DAIRY
(2015) 2015 Cal. Wrk. Comp. P.D. Lexis 664
Applicant sustained injury while working at defendant dairy. In addition to his Application for workers’ compensation benefits, the applicant filed a Petition for Penalties under Labor Code § 132a, alleging discrimination. The employer did not appear at the trial of the Labor Code Section 132a claim.
The unrebutted trial testimony showed that following the injury, the employer harassed the employee by continually urging him to work when he could not. The employer came to the applicant’s home and when he saw the applicant walking with a cane, took the cane away, causing him to fall. The employer returned to the employee’s house, attempting to set fire to a gas heater and told the employee he was fired.
Despite this testimony, the Workers Compensation Judge found that the applicant failed to establish disparate treatment necessary to support a finding of discrimination under Labor Code § 132a. The applicant filed a Petition for Reconsideration.
The WCAB granted Reconsideration and noted that under the “unique” factual circumstances described by the applicant, he had met his burden of showing that he was singled out for disadvantageous treatment because of the industrial injury.