A recent unpublished Court of Appeal decision addressed the limitations of the WCAB to substitute findings of fact in the appellate process.
In Los Angeles Department of Water and Power vs. WCAB (Jeanette France), the Court of Appeal reversed a WCAB appellate decision that substituted new findings of fact in a Labor Code 132(a) case.
The applicant was employed by the Department of Water and Power (DWP) when she sustained an accepted injury on 1/9/2017 to her lower back and shoulder. She was terminated on 2/1/2017. The applicant was not a traditional employee, but rather had been hired through an emergency appointment outside of the regular civil service process. Her employment could not last more than one year and she could be terminated at any time, without cause.
After she was terminated, the applicant filed a lawsuit against the DWP alleging discrimination under the Fair Employment and Housing Act. The Superior Court granted the employer’s motion for summary judgment.
She then proceeded with her workers’ compensation case, which settled via Compromise and Release for $35,000. However, the Labor Code 132(a) case was not settled and proceeded to trial. At trial, the applicant testified on her behalf and the applicant’s supervisors testified on behalf of the employer (one of whom had passed away, but whose deposition transcript was admitted as evidence).
The applicant testified that she reported her injury on 1/10/2017 and was then terminated on 2/1/2017. She claimed that she was not given an explanation for her termination, that she had never been disciplined or written up, and that her performance had never been criticized.
The employer witnesses testified that the applicant was hired under a special provision in the city charter that allowed an emergency placement for a maximum term of one year. Such emergency hires could be terminated at any time, without cause, because the position is temporary. No documentation of poor job performance was required to terminate the employment. Finally, the witnesses testified that there were problems with the applicant’s performance, which had been communicated to her. They also testified that her termination was not related in any way to her workers’ compensation injury.
The workers’ compensation administrative law judge denied the 132(a) claim and dismissed the petition. The judge found that the applicant was terminated for legitimate, non-discriminatory reasons, mainly poor performance that predated her industrial injury. The applicant failed to prove that the employer had terminated her because she had filed a worker’s compensation claim. She also failed to present any evidence that the people who terminated her knew about her workers’ compensation case.
The applicant appealed, and the WCAB granted the petition, rescinded the order of the trial judge and substituted new findings of fact that her termination did violate Labor Code 132(a). The WCAB stated that it conducted an “independent review of the entire record” and concluded that the employer did not carry its burden of establishing that good cause existed for the applicant’s termination.
The WCAB stated that there was no evidence of writeups or disciplinary actions and that the employer witnesses’ testimony did not support the claim that her work performance was poor. The WCAB awarded the applicant increased compensation, costs and expenses, reinstatement, and reimbursement for lost wages and work benefits.
The Court of Appeal reversed this decision. It noted that while the WCAB, on appeal, is allowed to resolve conflicts in the evidence and make its own credibility determinations, such a decision must be supported by substantial evidence in light of the entire record. The WCAB cannot do this by “isolating evidence which supports the board and ignoring other relevant facts of record, which rebut or explain the evidence.”
The WCAB ignored relevant evidence and mischaracterized the record on appeal. The entire record directly contradicted the WCAB’s finding that no one testified that the applicant was terminated for poor performance.
In fact, one witness testified that the appointment was ended because of her poor performance. The WCAB ignored and misrepresented the testimony of an employer witness concerning the applicant’s poor performance. While the WCAB was free to question the credibility of the testimony, “it was not free to ignore it completely.”
The WCAB also ignored the evidence in the motion for summary judgment, which had been admitted in the 132(a) proceedings. That evidence described problems with the applicant’s performance. The WCAB also ignored testimony from the deposition of the deceased supervisor and failed to note that there was a reasonable explanation for the lack of documentation concerning the applicant’s performance.
The Court of Appeal reversed the WCAB’s decision and ordered the WCAB to reinstate the workers’ compensation judge’s initial award in favor of the employer.
IN CONCLUSION
The immediate takeaway from this decision is that the WCAB is limited in its appellate capacity from making findings of fact that are controverted by evidence. Specifically, the WCAB failed to identify the numerous instances where employer witnesses identified legitimate non-discriminatory reasons for the applicant’s termination, including her poor performance. Practitioners should be aware when reviewing both appellate decisions and findings of fact at the trial level when evidence is presented in an isolated or one-sided manner.
While evidence, both documentary and testimonial, may be rebutted or contradicted at trial, when rendering a decision the WCAB — as well as trial judges — must address these conflicts and ultimately make a determination as to which evidence is more persuasive.
What they cannot do, however, is ignore evidence when making factual determinations. Practitioners should carefully review transcripts and summaries of evidence and testimony, as well as opinions on decision to confirm that evidence has not been isolated, misrepresented, or presented as unrebutted if this is not the case. In short, one must not look purely at the decision the court has reached, but rather how they reached it and whether they have fairly and accurately addressed the evidence submitted at trial.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about workers’ compensation defense issues, feel free to contact Michael at mburns@bradfordbarthel.com or (408) 392-8202.
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