Ehsan Alnimri sustained injury to his low back on June 20, 2010, while employed by Southwest Airlines as a ramp agent Ontario International Airport. He was required frequent lifting and carrying of weights up to 70 pounds and it occasionally involved lifting up to 100 pounds.
He was taken off work by his PTP, Dr. Sobol until September 2010 when he was returned to full duty. Alminri continued to work full duty without restriction until he was taken off the job on November 26, 2011.
Dr. Sobol the PTP issued findings based on the AMA Guides of approximately 28 % but with no work restrictions appearing in the report. Dr. Wakim found 14% impairment under the AMA Guides and found work restrictions which precluded him from very heavy lifting on a constant basis and 70 pounds on an occasional basis.”
On November 26, 2011, Alnimri was informed that he was being removed from duty due to a doctor’s report, but was not told which one. He eventually obtained a supplemental report from Dr. Wakim which returned him to full duty as of May 2012. He actually returned to work on June 20, 2012. Thus he was removed from work until June 19, 2012, when he returned to work without restrictions.
The parties resolved the case in chief by Stipulations with Request for Award on August 8, 2013. It proceeded to trial on the remaining L.C. 132a claim for the lost pay between November 26, 2011 and June 19, 2012. The WCJ ruled in favor in Alnimri finding discrimination under L.C. 132a, and awarded a $10,000 penalty and back wages. The WCAB affirmed in th panel decision of Alnimri v Southwest Airlines.
The WCAB conceded the determination by the California Supreme Court in Department of Rehabilitation v. Workers’ Comp. Appeals Bd (Lauher) (2003 ) 30 Cal.4th 1281, 1298-1299 [68 Cal.Comp.Cases 831] that an employer “does not necessarily engage in ‘discrimination’ prohibited by section 132a merely because it requires an employee to shoulder some of the disadvantages of his industrial injury. By prohibiting ‘discrimination’ in section 132a, we assume that the Legislature meant to prohibit treating injured employees differently, making them subject to disadvantages not visited on other employees because the employee was injured or had made a claim.”
But, the panel went on to say “Based on its specific application to the facts of Lauher, we view the Court’s phrase “singled out for disadvantageous treatment ” to be an application of the broader standard adopted by Lauher-that, in addition to showing that he or she suffered an industrial injury and that he or she suffered some adverse consequences as a result of some action or inaction by the employer that was triggered by the industrial injury, an applicant “must also show that he or she had a legal right to receive or retain the deprived benefit or status, and the employer had a corresponding legal duty to provide or refrain from taking away that benefit or status.” (Lauher, supra at p. 1300.) Stated another way, an employee must show they were subject to “disadvantages not visited on other employees because they were injured. .. .” (Id.) Because the employee in Lauher was not deprived of a legal right to TDI, and therefore could not show he was treated differently than other employees with respect to his alleged detriment, he could not establish a prima facie case of discrimination.”
“Thus, on the record before us, including the absence of evidence that defendant acted upon its decision to refer applicant to a company physician or otherwise complete its usual process for resolving conflicts between work status reports before dismissing applicant, we conclude that defendant subjected applicant to disadvantages not visited upon other employees because they were injured.”