Alfonso Salazar worked as a floater relief worker for Leprino Foods, when,he sustained serious injury in 2011 to his right hand and arm. The claim was accepted and medical treatment and benefits were provided.
A few weeks after his injury he was given an “Employer Warning Record” advising that he had failed to “tag out-lock out” the machine on which he was injured. As such, Applicant was terminated. A Petition for Increased Benefits pursuant to Labor Code § 132a was filed. Meanwhile, the underlying matter settled by way of Stipulations With Request for Award, approved February 11, 2014.
The Labor Code§ 132a discrimination case proceeded to trial. The WCJ found that Applicant’s termination was not based on a “good faith” personnel action. It was ordered that Applicant receive the supplemental benefit of $10,000 and be reinstated to his prior position.
After the 132a award issued, the employer alleged that the Teamster Pension Trust refused to administer the increase and they believed that it would violate the collective bargaining agreement to pay Applicant directly. The orders in the Amended award were quite specific as to how the $10,000.00 was to be paid. The Order stated: “[I]t is hereby ordered that Leprino Foods make payment of the increase directly to Mr. Salazar, Applicant herein. Amount to be adjusted by the parties.” There was nothing in the undersigned’s Amended Orders, or in the Orders of October 14, 2015 and January 28, 2016 that the sum of$10,000.00 be paid to the Teamster Pension Trust.
The employer petitioned for reconsideration. The WCJ recommended that the petition be denied reasoning that “If payment of the $10,000.00 supplemental benefit places Petitioners into some type of breach of the collective bargaining agreement with the Teamsters, which is not of Applicant’s doing. Petitioners triggered the entire chain of events by discharging Applicant from employ without benefit of a “good faith” personnel action. Petitioners had ample time to challenge the November 20, 2014 Amended Findings of Fact, Award, Order, and Opinion on Decision. Petitioners chose not to do so. Petitioners cannot now hide behind a claim of contractual breach with an unrelated third party to avoid a duty they have been court-ordered to comply with for more than one year.”
The WCAB denied reconsideration in the panel decision of Salazar v Leprino Foods. An employee who suffers retaliation or discrimination in violation of section 132a is not only entitled to an increase in workers’ compensation benefits, but is also ….. entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”
Here, defendant does not dispute that applicant’s termination was a violation of Labor Code section 132a, nor that the WCAB has the authority to issue both penalties and lost work benefits in the form of an increased pension benefit for the time applicant lost between his wrongful termination and his permanent and stationary date. Instead, defendant contends that to comply with the WCJ’s Order to issue the increased pension benefit directly to applicant would necessarily mean violating the collective bargaining agreement. However, the WCJ has not ordered defendant to pay increased pension benefits to applicant. Defendant was ordered to’ pay applicant damages to be calculated/adjusted by reference to his lost pension benefit. Accordingly, the WCJ had proper authority to order defendant pay applicant damages to be calculated by reference to his lost pension benefit.