HARTMAN v. MATHIS BOLINGER FURNITURE COMPANY INC

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Court of Appeal, Fifth District, California.

Sheila K. HARTMAN, Plaintiff and Appellant, v. MATHIS & BOLINGER FURNITURE COMPANY, INC., William Mathis, and Does I through X, Defendants and Respondents.

No. F013070.

Decided: May 30, 1991

Mary Louise Frampton, Frampton, Soley, Hoppe & Boehm, Fresno, for plaintiff and appellant. Richard J. Kern and Carol Corey, Emerson & Yrulegui, Fresno, for defendants and respondents.

OPINION

Appellant, Sheila K. Hartman, was employed by respondent Mathis & Bolinger Furniture Company (hereinafter Respondent) from December 4, 1969, to November 17, 1986.   Appellant alleges she was discharged on November 17, 1986, on account of her work related temporary disability.

On December 19, 1986, appellant filed an application for adjudication of claim before the Workers' Compensation Appeals Board (WCAB) alleging injuries arising out of and in the course of her employment between the dates of July 28, 1986, to November 5, 1986.   The application indicates that the injury occurred as a result of stress induced by management practices.   On January 27, 1987, appellant filed a petition for award under Labor Code section 132a before the WCAB alleging Respondent wrongfully discharged her because of her temporary industrial injury.

The judge of the WCAB reviewed both compromising release documents and issued his approval on March 17, 1988.

On February 24, 1988, appellant filed a complaint with the Department of Fair Employment and Housing, alleging discrimination based on medical conditions/physical handicap.1  A notice of case closure and right to sue was issued on April 28, 1988.

Appellant filed a complaint in the Tulare County Superior Court on September 1, 1988.   The complaint alleged the following causes of action:  violation of the Fair Employment and Housing Act;  breach of an oral contract for continued employment;  and breach of the implied covenant of good faith and fair dealing.   Respondent filed a motion for summary judgment on July 27, 1989.   On September 14, 1989, the court granted Respondent's motion for summary judgment and entered the following order:

“Motion for Summary Judgment is granted.   With respect to all of the causes of action, there is no triable issue with respect to the fact that the reason for the termination of plaintiff's employment was her work related injury;  consequently, her exclusive remedy for a wrongful termination for such reason is a workers' compensation claim under Labor Code Section 132a which she pursued to settlement, another material issue as to which there is no triable issue.  [Citations.]  Labor Code section 132a proscribes any discriminatory conduct against industrially injured employees, the conduct enumerated in the statute not being exclusive.   The fact that plaintiff does not claim that her termination was because she had filed or threatened to file a workman's compensation claim does not affect the result here.”

Notice of entry of judgment was filed on September 21, 1989.   A timely notice of appeal was filed.

The primary question presented is whether the exclusive remedy provision of the Workers' Compensation Act bars a civil action alleging a violation of the Fair Employment and Housing Act (FEHA) for termination because of a work related injury resulting in a physical handicap as defined by section 12926 of the Government Code.2  We conclude such a civil action is not barred and reverse.

DISCUSSION

I.Whether a Civil Action Alleging Violation of the Fair Employment and Housing Act is Barred by the Exclusive Remedy Provision of the Workers' Compensation Act?

The exclusive remedy provisions of the workers' compensation scheme are contained in Labor Code section 3600 et seq.   Because the injuries alleged occurred in 1986 they are governed by the Act as it read at that time.3  Labor Code section 3601 and 3602 provide that where conditions of compensation set forth in section 3600 occur, workers' compensation provisions are generally the exclusive remedy against the employer.4

In a series of cases culminating in 1990 in Shoemaker v. Myers, (1990) 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054, both the Supreme Court and various appellate courts “have struggled with the problem of defining the scope of these exclusive remedy provisions.”  (Id. at p. 15, 276 Cal.Rptr. 303, 801 P.2d 1054.)   In Shoemaker the court held:

“․ disabling injuries, whether physical or mental, arising from termination of employment are generally within the coverage of workers' compensation and subject to the exclusive remedy provisions, unless the discharge comes within an express or implied statutory exception or the discharge results from risks reasonably deemed not to be within the compensation bargain.”  (Id. at p. 7, 276 Cal.Rptr. 303, 801 P.2d 1054.)

In Shoemaker, the plaintiff filed an amended complaint alleging the following causes of action:  “(1) ‘wrongful termination,’ (2) unlawful retaliatory termination in violation of [Government Code] section 19683, (3) wrongful discharge in violation of fundamental public policy ․, (4) breach of contract and the implied covenant of good faith and fair dealing [Citation], (5) interference with business relationship and inducement of breach of contract, and (6) intentional infliction of emotional distress.”   (Shoemaker, supra, 52 Cal.3d at p. 10, 276 Cal.Rptr. 303, 801 P.2d 1054.)   The trial court concluded the “causes of action were barred by the exclusivity provisions of the workers' compensation law,” (Id. at p. 11, 276 Cal.Rptr. 303, 801 P.2d 1054, fn. omitted) and sustained the defendant's demurrer without leave to amend.

In considering the exclusivity question, the Supreme Court in Shoemaker first “synthesized certain principles pertinent to that question.”  (Id. at p. 15, 276 Cal.Rptr. 303, 801 P.2d 1054.)   First, the court noted that “ ‘[t]he basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment [citation]․’  Second, if the injuries did arise out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from the intentional conduct of the employer, and even though the employer's conduct might be characterized as egregious.”  (Shoemaker, supra, 52 Cal.3d at p. 15, 276 Cal.Rptr. 303, 801 P.2d 1054.)

The court further noted “that the legal theory supporting such exclusive remedy provisions is a presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.   The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.  [Citations.]  The function of the exclusive remedy provisions is to give efficacy to the theoretical ‘compensation bargain.’ ”   (Id. at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054.)

The court in Shoemaker then pointed out several instances where the exclusive remedy provisions were inapplicable.   First, “the exclusive remedy provisions apply only in cases of ․ industrial personal injury or death.”   (Shoemaker, supra, 52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054.)   Second, “the exclusive remedy provisions are not applicable under certain circumstances, sometimes variously identified as ‘conduct where the employer or insurer stepped out of their proper roles' [citations], or ‘conduct of an employer having a “questionable” relationship to the employment’ [citations], but which may be essentially defined as not stemming from a risk reasonably encompassed within the compensation bargain.  [Citations.]”  (Ibid.)

The court then considered each of the plaintiff's causes of action in light of the previously set forth principles and limitations.   The court first considered the plaintiff's cause of action for wrongful discharge.   In so doing, the court rejected the claim made in reliance on Georgia–Pacific Corp. v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 72, 192 Cal.Rptr. 643, that injuries from termination of employment do not constitute injuries arising out of and in the course of employment within the meaning of Labor Code section 3600.   The court concluded that the “Georgia–Pacific court's dictum is not supported by logic or precedent.”  (Shoemaker, supra, 52 Cal.3d at p. 18, 276 Cal.Rptr. 303, 801 P.2d 1054.)   The court held “that both the act of termination and the acts leading up to termination necessarily arise out of and occur during and in the course of the employment.”  (Id. at p. 20, 276 Cal.Rptr. 303, 801 P.2d 1054.)

That the act of discharge is deemed to arise out of and in the course of employment does not necessarily mean that workers' compensation provides the exclusive remedy for the discharge.   Where the conduct surrounding the discharge is “not seen as reasonably coming within the compensation bargain, a separate civil action may lie.”  (Shoemaker, supra, 52 Cal.3d at p. 20, 276 Cal.Rptr. 303, 801 P.2d 1054.)

The plaintiff in Shoemaker alleged he was terminated in violation of the “whistleblower” protection statute (Gov.Code, § 19683).   That statute “prohibited the use of official authority by state officers or employees, or by any person, to discourage, interfere with, restrain or coerce any state employee from reporting in good faith to appropriate authorities any actual or suspected violation of law occurring on the job or directly related thereto.   Section 19683 specifically provided that any person guilty of such wrongful conduct ‘may be liable in an action for civil damages brought against him by the offended party.’ ”  (Shoemaker, supra, 52 Cal.3d at p. 20, 276 Cal.Rptr. 303, 801 P.2d 1054.)   The appellate court held that the plaintiff's causes of action under section 19683 were barred by the workers' compensation law and that “insofar as section 19683 was in conflict with the Act, ․ the provisions of the Act controlled as it was the ‘more specific’ of the two statutory schemes.”  (Id. at p. 21, 276 Cal.Rptr. 303, 801 P.2d 1054.)

The Supreme Court disagreed.   The court first noted “there is considerable question whether the ‘general statute, specific statute’ rule is applicable under these circumstances.”  (Id. at p. 21, 276 Cal.Rptr. 303, 801 P.2d 1054.)   The court also concluded “to the extent both statutes may be potentially applicable, the whistle-blower statute ․ is the specific statute and the Act is the general statute, not vice versa.”  (Ibid.)

In concluding the whistle-blower statute was more specific, the court looked “to the purposes served by the competing statutes” (ibid.) and stated:  “[T]he purpose of the workers' compensation law is to provide a comprehensive scheme of compensation for all employees for industrial personal injury or death.   The purpose of an action under the whistle-blower protection statute, however, is to provide redress to a certain limited class of employees (state employees), for damages suffered as a consequence of the specific use of official power to deter a particular protected activity․”  (Shoemaker, supra, 52 Cal.3d at pp. 21–22, 276 Cal.Rptr. 303, 801 P.2d 1054.)

The court then concluded:

“[t]he Legislature's enactment of specific statutory protection for whistle-blowing activity, including a civil action for damages incurred from official retaliatory acts, defines the protected activity as a specific statutory exception to the provisions of workers' compensation law;  such conduct lies well outside the compensation bargain.”  (Shoemaker v. Myers, supra, 52 Cal.3d at p. 23, 276 Cal.Rptr. 303, 801 P.2d 1054.)

As in Shoemaker, there may be circumstances where both the FEHA and the Workers' Compensation Act are potentially applicable.   To that extent, the court “must look to the purposes served by the competing statutes to determine which controls.”  (Shoemaker, supra, 52 Cal.3d at p. 21, 276 Cal.Rptr. 303, 801 P.2d 1054.)  “[T]he purpose of the workers' compensation law is to provide a comprehensive scheme of compensation for all employees for industrial personal injury or death.”  (Ibid.)  Conversely, “[t]he broad goal of the FEHA is set forth at section 12920, which states in pertinent part:  ‘It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age.’ ”  (Rojo v. Kliger (1990) 52 Cal.3d 65, 72–73, 276 Cal.Rptr. 130, 801 P.2d 373, emphasis added.)

As the Supreme Court explained in Rojo, supra,

“[t]he California Fair Employment Practice Act (FEPA) was enacted in 1959 [citation] and recodified in 1980 in conjunction with the Rumford Fair Housing Act [citation] to form the FEHA.  [Citations.]  The law establishes that freedom from job discrimination on specified grounds ․ is a civil right.   [Citation.]  It declares that such discrimination is against public policy [citation] and an unlawful employment practice [citation].  [Citations.]   The statute creates two administrative bodies;  the Department of Fair Employment and Housing (Department) [citation], whose function is to investigate, conciliate, and seek redress of claimed discrimination [citation], and the Fair Employment and Housing Commission (Commission) [citation], which performs adjudicatory and rulemaking functions [citation].   An aggrieved person may file a complaint with the Department [citation], which must promptly investigate [citation].   If the Department deems a claim valid, it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion.   [Citation.]  If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Commission.  [Citations.]  The Department acts as a prosecutor on the accusation and argues the complainant's case before the Commission.  [Citations.]”  (Rojo, supra, 52 Cal.3d at p. 72, 276 Cal.Rptr. 130, 801 P.2d 373.)

“If no accusation is issued within 150 days after the filing of the complaint and the matter is not otherwise resolved, the Department must give complainant a right-to-sue letter.   Only then may that person sue in the superior court ‘under this part’ [citation].”  (Commodore Home Systems, Inc., v. Superior Court (1982) 32 Cal.3d 211, 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)  “In a civil action under the FEHA, all relief generally available in noncontractual actions, including punitive damages, may be obtained.   [Citation.]”  (Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 88, 264 Cal.Rptr. 319.)

The relationship between the FEHA and the Workers' Compensation Act was considered in Jones v. Los Angeles Community College District (1988) 198 Cal.App.3d 794, 244 Cal.Rptr. 37.   There the court held a FEHA claim based on race discrimination was not barred by the exclusive remedy provisions of the workers' compensation scheme.   Similarly, in Meninga v. Raley's Inc., supra, 216 Cal.App.3d 79, 264 Cal.Rptr. 319, this court rejected the argument that the workers' compensation scheme provided the exclusive remedy for an employee who alleged sex discrimination in violation of the FEHA.

Despite this authority and the compelling differences in the “evils addressed” by the FEHA and the Workers' Compensation Act, respondent argues the physical handicap discrimination claim is specifically barred by the exclusive provisions of the Workers' Compensation Act because Labor Code section 132a covers all discrimination claims “resulting from physical handicap occasioned by the employment.” 5  Section 132a broadly has been construed by the California Supreme Court to prohibit not only retaliation and discharge but also to prohibit any discrimination against employees injured in the course and scope of their employment.  (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564.)

In Pickrel v. General Telephone Company (1988) 205 Cal.App.3d 1058, 252 Cal.Rptr. 878, the Second District Court of Appeal held that because section 132a specifically addressed the problem of discrimination based on an industrial injury, the workers' compensation scheme provided the exclusive remedy for such claims.

Although Pickrel supports respondent's position, that case was decided before the Supreme Court issued its opinion in Shoemaker v. Myers, supra, 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054.   As the court pointed out in Shoemaker, that remedies are potentially available under the workers' compensation scheme does not necessarily mean that that scheme provides the exclusive remedy.   In concluding that a civil action under the whistle-blower's statute was not precluded by the exclusive remedy provisions of the Workers' Compensation Act the court held:

“We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.  [Citations.]  The whistle-blower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting.   The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law;  otherwise section 19683 would be rendered meaningless.  [Citations.]  As cogently explained in Jones v. Los Angeles Community College Dist., supra, 198 Cal.App.3d. 794 [244 Cal.Rptr. 37] ․, the evils addressed by the whistle-blower statute are different from those addressed by the workers' compensation law, and the Legislature cannot have ‘ “intend[ed] that the objectives ․ be defeated by the bar of the exclusive remedy provisions.” ’  [Citation.]  Thus, the Legislature's enactment of specific statutory protection for whistle-blowing activity, including a civil action for damages incurred from official retaliatory acts, defines the protected activity as a specific statutory exception to the provisions of the workers' compensation law;  such conduct lies well outside the compensation bargain.”  (Shoemaker v. Myers, supra, 52 Cal.3d at pp. 22–23, 276 Cal.Rptr. 303, 801 P.2d 1054.)

 Similarly here, the legislative history of the two statutory schemes in question indicate that in enacting the FEHA, the Legislature intended to provide additional remedies to those already granted under other provisions of law.

Labor Code section 132a originally was enacted as a criminal statute in 1941.  (Stats.1941, ch. 401, § 1, p. 1686.)   The Legislature amended the section in 1972 to provide not only for criminal sanctions for unlawful discrimination but also for the payment of a penalty.   At the same time, the section was amended to set forth the broad policy of the state prohibiting discrimination against industrially injured employees.  (Stats.1972, ch. 874, § 1, p. 1545.)

It was not until 1973 that the Legislature amended the Fair Employment and Housing Act to include physical handicap in the scope of its protection.   (Stats.1973, ch. 1189, § 6, p. 2501.)   The amendment made no reference to, or distinction between, those employees who were physically handicapped as a result of industrial injury and those who were handicapped from non-employment related causes.

Moreover, in 1980 the Legislature amended the FEHA by adding Government Code section 12993.  (Stats.1980, ch. 992, § 4, p. 3140, 3164.) 6  In adding section 12993, the Legislature expressly disclaimed any intent to repeal other applicable state laws affording remedies for discrimination.   As the court stated in Rojo v. Kliger, supra, 52 Cal.3d at pp. 74–75, 276 Cal.Rptr. 130, 801 P.2d 373, “ ‘[t]he FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination․  [Citation.]’ ”   The court in Rojo further stated:

“Because the FEHA, like its predecessor the FEPA, expressly disclaims any intent to displace other relevant state laws, no resort to interpretative aids is required and the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant.   While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to expand the rights and remedies available to victims of discrimination.  (§§ 12993, 12920.)   Under the act, plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.  [¶]

“In sum, we hold that the FEHA does not displace any causes of action and remedies that are otherwise available to plaintiffs.  (Rojo, supra, 52 Cal.3d at p. 82, 276 Cal.Rptr. 130, 801 P.2d 373;  fn. omitted.)

To the extent the “ ‘general statute, specific statute’ rule is applicable under these circumstances” (Shoemaker, supra, 52 Cal.3d at p. 21, 276 Cal.Rptr. 303, 801 P.2d 1054), the FEHA is the more specific of the two statutory schemes.  Labor Code section 132a provides broad protection against discrimination because of work related injury.   Conversely, the FEHA provides redress to a limited class of physically handicapped individuals.   Only those individuals suffering a “physical handicap” or medical condition as they are narrowly defined in Government Code section 12926 are afforded protection under the FEHA.7

Respondents provide no support for their assertion the Legislature intended to deny protection under the FEHA to those whose physical handicap resulted from a work related incident.   The Legislature presumably was aware of the exclusivity provisions of workers' compensation law when it added “physical handicap” as a protected class.  (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 596, 262 Cal.Rptr. 46, 778 P.2d 174.)   Had the Legislature intended to exclude all work related physical handicaps, it could have so stated when expressly defining “physical handicap” in Government Code section 12926.   We would find it anomalous that a law intended to expand the rights of designated classes in responding to employer discrimination would be limited by implication to exclude probable members of that class from its benefits.

As in Shoemaker in enacting the FEHA, and amending the statute to prohibit discrimination based on physical handicap and/or medical condition, the Legislature intended to “afford an additional remedy to those already granted under other provisions of law․”  (Shoemaker, supra, 52 Cal.3d at p. 22, 276 Cal.Rptr. 303, 801 P.2d 1054.)   The enactment of this specific statutory scheme to protect against discrimination based on physical handicap and/or medical condition, “including a civil action for damages incurred” from such discrimination creates a “specific statutory exception to the provisions of the workers' compensation law;  such conduct lies well outside the compensation bargain.”  (Id., at p. 23, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Accordingly, the trial court erred in concluding an action under the Fair Employment and Housing Act was barred by the exclusive remedy provisions of the workers' compensation scheme.

II.

Whether the Judgment May be Affirmed on an Alternate Ground Raised Below? **

DISPOSITION

The judgment with respect to count I is reversed.   In all other respects judgment is affirmed.

Costs to appellant.

FOOTNOTES

1.   Medical condition/physical handicap is defined in Government Code section 12926 subdivisions (f) and (h).   The parties did not dispute in the motion for summary judgment whether plaintiff's alleged disability was a “physical handicap” within the provisions of section 12926.   As such, we do not decide the point and merely assume for purposes of this appeal that appellant's alleged disability is a “physical handicap” within section 12926.

2.   In addition to the count alleging violation of the FEHA, appellant's complaint also alleged a cause of action for breach of contract, and a cause of action for breach of the implied covenant of good faith in fair dealing.   In this appeal, appellant argues the trial court erred in concluding a cause of action for violation of the FEHA was precluded by the exclusive remedy of workers' compensation.   Although this was also the grounds for granting the summary judgment on the remaining causes of action, appellant has limited her claim of error to the FEHA action.   We note that the issue of whether the workers' compensation scheme provides the exclusive remedy for a worker alleging wrongful discharge in violation of public policy is presently pending before the Supreme Court in Gantt v. Sentry Ins. Co. (SO14212.)  In her brief, appellant makes no argument regarding the propriety of the granting of summary judgment as to the second and third causes of action.   Accordingly we consider any error therein to have been waived.  (Pimental v. Safeway Stores, Inc. (1987) 196 Cal.App.3d 92, 94, fn. 1, 241 Cal.Rptr. 568.)

3.   Former Labor Code section 3600 provided:  “(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:  [¶] (1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.  [¶] (2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.  [¶] (3) Where the injury is proximately caused by the employment, either with or without negligence.  [¶] (4) Where the injury is not caused by the intoxication of the injured employee.  [¶] (5) Where the injury is not intentionally self-inflicted.  [¶] (6) Where the employee has not willfully and deliberately caused his or her own death.   [¶] (7) Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.  [¶] (8) Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.   The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision.   Failure of the employer to post such a notice shall not constitute an expression of intent to waive the provisions of this subdivision.  [¶] (b) Where an employee, or his or her dependents, receives the compensation provided by this division and secures a judgment for, or settlement of, civil damages pursuant to those specific exemptions to the employee's exclusive remedy set forth in subdivision (b) of Section 3602 and Section 4558, such compensation as is paid under this division shall be credited against the judgment or settlement, and the employer shall be relieved from the obligation to pay further compensation to, or on behalf of, the employee or his or her dependents up to the net amount of the judgment or settlement received by the employee or his or her heirs, or such portion of the judgment as has been satisfied.”  (Former Lab.Code, § 3600;  see Stats.1982, ch. 922, § 4 p. 3365.  Section 3600 was amended in 1986, (Stats.1986, ch. 755, § 1, p. 2474) and again in 1990, (Stats.1990, c. 939, § 1, p. ––––)).

4.   Labor Code section 3601 provides in relevant part as follows:  [¶] “(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases:  [¶] (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.  [¶] (2) When the injury or death is proximately caused by the intoxication of the other employee.”  (Lab.Code section 3601.)Section 3602 provides in relevant part:  [¶] “(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer, and the fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.  [¶] (b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:  [¶] (1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer.  [¶] (2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation.   The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.  [¶] (3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person.  [¶] (c) In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.”  (Lab.Code 3602.)

5.   Labor Code section 132a provides in relevant part as follows:  “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be increased by one-half, but in no event more than $10,000 ․, together with costs and expenses not in excess of $250․  Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”

6.   Government Code section 12993, subdivision (a) provides:  “[t]he provisions of this part shall be construed liberally for the accomplishment of the purposes thereof.   Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”

7.   Government Code section 12926 provides in relevant part:  “(h) ‘Physical handicap’ includes impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services.”   Section (f) defines medical condition as:  “any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidences.”

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Associate Justice.

STONE (Wm.A.), Acting P.J., and BUCKLEY, J., concur.