Legal Question in Workers Comp in California

I am a business professional and spend many hours each day on the computer. I filed a wc claim in April 2012 for repetitive stress injuries (bilateral carpal and cubital tunnel syndromes) suffered after a change in management and subsequent increase in my workload. After 10 months of conservative treatment, my doctor and I decided that my condition required surgery. I informed my manager that I would be proceeding with surgery on both arms, and I would likely be out for several months. 5 days later, he informed me that "for continuity's sake"' he was promoting my subordinate to a newly created position above me, and that she would now be the division leader. He was careful to point out that my title and salary would not be changing. However, I have lost my status as a division leader and am no longer part of the organization's leadership team. Several of my colleagues have used the term "demotion" when asking me about this change. Would this action be considered retaliatory or discriminatory?


Asked on 3/14/13, 8:19 pm

1 Answer from Attorneys
Nancy Wallace Nancy Wallace Atty at Law

This DOES sound like a violation of Labor Code Sec. 132(a), unlawful discrimination in retaliation for reequesting workers comp benefits.

PROVING HIS MIND SET is going to extremely tricky. Most attorneys won't even file the 132a Petition because proving the boss' intention and mind set is almost impossible.

You cannot prove any financial loss. So the judge won't be able to point to a direct impact from the 'discrimination'.

Will a Workers Comp Judge find that a loss of 'status' within the company falls within the meaning of LC Sec 132a? Tough to say. If there is no loss of pay nor a loss of hours or title, most judge would have a very hard time finding unfair discrimination.

If you had former managers and former co-workers who would be willing to testify there was a pattern of injury people getting demoted, and that they consider this a demotion, you might have a chance of proving retaliatory discrimination.

If the boss gets on the stand and testifies that the newly-created position would require a lof of travel and overtime and you would never be considered for this new position, even if you had not been injured, how to combat such testimony?

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Answered on 4/01/13, 5:05 pm


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