RALEY INC v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Third District, California.

RALEY'S, INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Laura Cook, et al., Respondents.

No. Civ. C007420.

Decided: June 25, 1990

Mitchell S. Burns, Sacramento, Elizabeth A. Coyne, Redwood City, Floyd C. Carrico, Wyatt, Carrico and Burns, Sacramento, for petitioner. S. Curt Winter,Andrew K. Rauch, Susan J. Schlueter, Mastagni, Holstedt and Chiurazzi, Sacramento, for respondents.

INTRODUCTION

In this petition for writ of review, Raley's, Inc. requests that the order of the Workers' Compensation Appeals Board (“Board”) denying its petition for reconsideration and finding a violation of Labor Code section 132a 1 be annulled.   We find that the Board did not improperly shift the burden of proof to the employer on the defense of business realities under section 132a and that its decision is supported by substantial evidence.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 1987, respondent Laura Cook filed an application for adjudication of claim with respondent Board as a result of injuries sustained to her right shoulder and knee while working as a courtesy clerk with Raley's Supermarket in Placerville.   The injury occurred on February 12, 1987, when Cook was hit by a shopping cart.   Cook is right-handed.

Raley's was permissibly self-insured and its claims were administered by Claims Management, Inc.

On February 18, 1988, Cook filed a Petition for Increase of Benefits and Remedies pursuant to Labor Code Section 132a.   The petition alleged that Raley's discriminated against her as a result of her application for workers' compensation benefits.   The alleged discrimination occurred on July 23, 1987 when Raley's store manager, Bob Navarro, terminated her after she reported back to work.

At a hearing before a Workers' Compensation Judge (WCJ), Cook testified that she was examined by Dr. Clark for Claims Management in July 1987.   Dr. Clark released Cook to work.   In his report of July 8, 1987, Dr. Clark stated that he did not “find sufficient factors of disability to justify the idea that this patient is disabled from working as a grocery checker.2  She is able to return to that type of employment at this time.”

Dr. Clark never told Cook that he was releasing her to work.   She was informed of her release by an employee of Claims Management after her benefits were cut off.   Her own treating physician, Dr. Joy, did not release her to work and had certified her for disability through August 30, 1987.   Because her benefits ceased, she stopped seeing Dr. Joy at the end of July.   Around August 1987, she sought a second opinion from Dr. Young.   Her mother paid for this evaluation.   Dr. Young concurred with Dr. Joy that she should not be released to work, that she should be considered disabled for an “indefinite period of time” and that an arthroscopy of her right shoulder might be needed in the future.   Young never released her to work.   In a report of November 30, 1987, Dr. Spademan indicated that Cook's disability was “permanent, stationary and ratable at this time.”

Cook testified that she initiated a conversation with Navarro about returning to work around July 23, 1987.   She did this on her attorney's advise after her benefits were cut off.   Cook informed Navarro that Dr. Clark had released her but that her treating physician had not.   She said she would be glad to return to work but could not lift heavy things, such as a gallon of milk, with her right arm.   She offered to do lighter work at the store, like stocking or decorating.   According to Cook, Navarro said he could not use anyone on light duty and that she was terminated.   She did not remember anything else from this conversation.

Navarro's recollection of this conversation was different.   He testified that Cook said she was unable to do all her duties and requested light duty.   He stated that checkstand or courtesy clerk work is the lightest available.   Due to seniority, Cook was not eligible for other departments.   After he told her there was no light work, Navarro said it was up to Cook to decide what she wanted to do.   Cook responded, “I see” and said that she did not want to injure herself.   He believed Cook wanted him to help her decide and that she decided to quit.   Navarro said Cook did not agree with him that she should be terminated but that he agreed with her.   He did not recall her exact words regarding termination.   She left the store “politely.”

Navarro did not discuss with Cook whether she had a permanent disability or whether she could return later.   He did not remember whether he informed the carrier of this conversation.

After Cook left, Navarro filled out a Raley's “blue form” for termination.   It indicated that Cook had been released to work on July 13, 1987.   The explanation given on the form for termination was that, “after a brief discussion,” Cook “felt it was in her best interest to voluntary terminate, do [sic ] to her previous injury.   Said she could not perform her regular courtesy clerk duties as the doctor described [sic ].”  The parties stipulated that Navarro did not show Cook the blue form and that Cook did not know that it said she voluntarily terminated her employment.

The job duties of a courtesy clerk involve bagging groceries and assisting customers take groceries to their cars.   The heaviest duty involved lifting 50 pound bags of dog food, two or three times a day.   Cook testified that she had difficulty lifting over her head.   Most of her work as a courtesy clerk was waist high and involved lifting from waist level into grocery bags or baskets.   At the date of the hearing, she testified that her condition regarding lifting remained unchanged and that she could not return to perform courtesy clerk work.   Since her injury, Cook has used her left hand and arm for heavy work, such as vacuuming or carrying grocery bags.

Approximately four times a year, Raley's had decorating work related to promotional contests.   In the past, Cook performed decorating work.   She testified that she would have done this work, although she could not do some of it if it was overhead.

Cook received $2,336 in temporary total disability benefits for the period February 13 through July 8, 1987.   She was without income or state disability from July 1987 through September 1987 when she was hired as a receptionist.   She left this job to return to school and help her mother after surgery.

On July 6, 1989, the WCJ found, inter alia, that Cook was permanently disabled 73/434 percent and that Raley's violated section 132a.   He ordered reimbursement of lost wages and work benefits and reinstatement.

Regarding the section 132a allegation, the Judge found that “[f]rom the testimony of both witnesses, it is clear that applicant was somewhat at a loss as to her recourse when Mr. Navarro informed her that there was no limited work for her;  given that applicant had gone to the site at the recommendation of her attorney to offer to return to work, I find it unlikely that she would have indicated her self-termination as clearly as Mr. Navarro would have believed.   Indeed, he could not recall her precise statement which led him to believe she was quitting.   Both witnesses testified they engaged in some discussion as to what work she could or could not do;  in this context, it seems Mr. Navarro presumed that when applicant left the premises she was electing to quit her job.   From the meager account of that conversation, such a presumption by Mr. Navarro was unreasonable and his completion of the termination form was unwarranted.   As he testified that he did not know then whether her disability was permanent or still temporary, the evidence is sufficient to conclude applicant was being penalized for having been injured on the job and loosing [sic] time from work because of that injury.”

On July 19, 1989, Raley's petitioned for reconsideration on the grounds that the evidence did not justify the findings of fact and the findings of fact did not support the award under section 132a.   Raley's argued that Navarro's completion of the blue form lent greater credibility to his recollection of the events.   Raley's also contended that the conflict between Cook and Navarro “as to whether or not the applicant at the time of that conversation communicated to Mr. Navarro that she was terminating voluntarily” was “of no moment.”   Because Cook requested light work and there was evidence that light work was not available, section 132a did not apply.

Cook also petitioned for reconsideration because the WCJ failed to award her a 50 percent increase in compensation benefits under section 132a.

The WCJ issued its report and recommendation denying Raley's petition and granting Cook's petition.   The judge noted that Raley's had changed its position from arguing at the hearing that Cook quit, as evidenced by Navarro's testimony and the blue form, to arguing that it was not relevant whether she quit or was terminated due to her insistence on light work.  “These fluctuating postures by defendant reaffirm this court's conclusion of a violation of Labor Code Section 132a;  contrary to Petitioner's contention, it is of “import” whether applicant quit or was terminated since it went to the very heart of Mr. Navarro's testimony regarding what occurred and his impressions therefrom during the conversations at issue.   The question of availability of light work was tangential to the question of whether Mr. Navarro's conclusion regarding applicant's intent was warranted, as the availability of light work was what appeared to Mr. Navarro to be the motivating factor behind applicant's alleged voluntary quit.   Petitioner's argument that applicant was rightfully terminated because light work was not available is a posture taken only since the hearing and is in straight conflict with Mr. Navarro's testimony Exhibit C, and the defendant's posture at trial[.  W]hether or not such light work was available is not at all certain except that Mr. Navarro testified he could not recall whether decorating work was available at the time.”

On August 18, 1989, the Board adopted the WCJ's report and recommendation and denied Raley's request for reconsideration.   The Board noted that “although defendant has changed its theory of defense, it still has not met its burden of proof to show a legitimate business purpose for applicant's termination.   (Smith v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 1104, 1109, 49 Cal.Comp.Cases 212, 216 [199 Cal.Rptr. 881] ).”

The Board deferred to the WCJ's finding of credibility, quoted above, regarding the conversation between Cook and Navarro which concluded that it was unreasonable for Navarro to have presumed Cook quit when she left.   The Board found that Raley's had committed a detrimental discriminatory act related to Cook's compensation case in violation of section 132a.   The Board also granted Cook's petition and awarded her a 50 percent increase in benefits under section 132a.

Raley's thereafter petitioned for writ of review under section 5952.3  On review, Raley's argues that the WCJ's findings and award and the Board's denial of its petition for reconsideration are not supported by substantial evidence.   Raley's also contends that the Board improperly shifted the burden of proof to them on the issue of whether or not the employer's action constituted a violation of section 132a.

STANDARD OF REVIEW

 A review of an award by the Board is confined to a determination whether, under applicable principles of law, the award is supported by substantial evidence.  (Judson Steel Corp. v. Workers' Comp. Appeals B.d (1978) 22 Cal.3d 658, 664, 150 Cal.Rptr. 250, 586 P.2d 564.)  “The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review.   Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board.”  (§ 5953.)  “Thus if the board's findings ‘are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award.’ ”  (Judson, supra, at p. 664, 150 Cal.Rptr. 250, 586 P.2d 564 quoting Riskin v. Ind. Acc. Com. (1943) 23 Cal.2d 248, 254, 144 P.2d 16.)   The credibility of witnesses, the persuasiveness or weight of the evidence, and the resolving of conflicting inferences, are questions of fact.  (Western Electric Co. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629, 644, 160 Cal.Rptr. 436.)  “The reviewing court, of course, is not bound by the WCAB's conclusions on questions of law.”   It must decide whether the facts found by the Board constitute a violation of section 132a.  (Ibid.)

I

BURDEN OF PROOF

Raley's challenges the Board's determination that “it still has not met its burden of proof to show a legitimate business purpose for applicant's termination” as required under Smith v. Workers' Comp. Appeals Bd., supra, 152 Cal.App.3d 1104, 1109, 49 Cal.Comp.Cases 212, 216, 199 Cal.Rptr. 881.)   It argues that the Board erroneously relied on Smith and that the burden of proof is upon the injured employee to prove that she is “ready, willing and able” to return to her former work duties.   Only then does the burden shift to the employer to prove an affirmative defense of business realities.   Because Cook “herself” made the decision that she was physically unable to return to her “former position”, the burden never shifted.

 We reject this contention.   Once a worker shows that, as a result of an industrial injury, the employer engaged in conduct detrimental to the worker, the burden shifts to the employer to demonstrate that its actions were necessitated by the realities of doing business.   The Board did not err in placing this burden on Raley's.   As discussed in Section II, there was substantial evidence to support its conclusion that Raley's failed to meet its burden.

Section 132a codifies a state policy “that there should not be discrimination against workers who are injured in the course and scope of their employment.”   Specifically, it provides that “[a]ny 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 4 an application for adjudication with the appeals board, 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 ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars.  ($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.”

The meaning and purpose of section 132a was explained in Judson, supra, 22 Cal.3d at page 668, 150 Cal.Rptr. 250, 586 P.2d 564.   There, the Court found that the termination of an employee's seniority rights and, ultimately, his employment as a result of absence from work due to industrial injury constituted a violation of section 132a.   The Court noted that section 132a serves both a deterrent function of discouraging employers from discriminating against injured employees and a remedial function of providing compensation to aggrieved workers who suffer discrimination as the result of a work injury.   The mandate that workers' compensation laws are to be construed liberally to protect injured workers applies to section 132a.   (Ibid.)

Judson rejected the notion that section 132a solely prohibits the enumerated actions of “discharging or threatening to discharge” an employee.   Discrimination “in any manner” against industrially-injured employees is encompassed within the statute.   The Court emphasized, however, “that our present holding in no way mandates that an employer retain all employees who sustain injuries on the job․  Section 132a does not compel an employer to ignore the realities of doing business by “reemploying” unqualified employees or employees for whom positions are no longer available.”  (Id. at p. 667, 150 Cal.Rptr. 250, 586 P.2d 564.)

The burden of proving the affirmative defense that “business realities” necessitate a discharge is on the employer.  (Smith, supra, 152 Cal.App.3d 1104, 1109, 199 Cal.Rptr. 881.)  Smith annulled a Board decision which found no improper discrimination based on its erroneous interpretation of section 132a.   The employer had a rule that employees were eligible to be fired upon two consecutive unreported absences.   After the company physician had refused to authorize medical tests, the injured applicant scheduled a meeting with her attorney and the employer's compensation manager.   She was terminated under the two-absence rule.   The Board found that the applicant had failed to carry her burden of proof that she had been discriminated against for filing a claim and that she was lawfully terminated under a uniformly interpreted rule applied across the board.

In rejecting the Board's analysis placing the burden on the applicant, the court held that “section 132a proscribes certain actions triggered by the industrial injury which work to the detriment of the claimant, unless they were necessitated by ‘the realities of doing business.’   As can be inferred from Judson Steel, supra, ․ the only reasonable procedure for implementing such a rule is to make it the claimant's burden to show the detriment, the action, and its cause, and the employer's burden to prove an affirmative defense of business realities.”  (Id. at p. 1109, 199 Cal.Rptr. 881.) 5

The relationship between section 132a and the business realities defense was recently addressed by the First District in Barns v. Workers' Comp. Appeals Bd. (Arcata Redwood Company) (1989) 216 Cal.App.3d 524, 266 Cal.Rptr. 503, which annulled a Board determination finding no violation due to justifiable business necessity.6  The court reiterated its holding in Smith, supra, 152 Cal.App.3d at p. 1109, 199 Cal.Rptr. 881, that “a worker proves a violation of section 132a by showing that as the result of an industrial injury, the employer engaged in conduct detrimental to the worker.   If the worker makes this showing, the burden shifts to the employer to show that its conduct was necessitated by the realities of doing business․   We emphasized that the employer must demonstrate that its action was ‘necessary ’ and ‘directly linked to business realities. ’ ”  (Id. 216 Cal.App.3d at p. 531, 266 Cal.Rptr. 503, emphasis in original.)

 In light of section 132a's remedial and deterrent purposes, it is appropriate that an employer bear the burden of demonstrating that detriment caused to an injured employee is the result of business realities and not the result of the employee's recourse to workers' compensation benefits.7  This conclusion comports with the purpose of the workers' compensation law “of extending their benefits for the protection of persons injured in the course of their employment.”  (§ 3202.)   It is further buttressed by Labor Code section 5705, which provides that the “burden of proof rests upon the party holding the affirmative of the issue.”   As discussed below, there was substantial evidence to support the Board's determination that Raley's failed to meet its burden of proof on this issue and that its conduct thereby constituted a violation of section 132a.

II

SUBSTANTIALITY OF EVIDENCE

In support of its contention that there was not substantial evidence to sustain the Board's award under section 132a, Raley's asserts that it is not relevant whether Cook voluntarily quit or was terminated.   The real issue is whether, on the record as a whole, the evidence supports a finding that Cook was discriminated against due to her industrial injury.

The practical benefit of this argument to Raley's is obvious.   Were we to accept that Raley's termination of Cook was truly “of no moment”, we would also be compelled to conclude that she suffered no prima facie detriment.   Under this scenario, the burden of proof on the defense of business realities would not shift to Raley's.   This is merely another unsuccessful way of couching its argument that the burden is on the employee.

Prima Facie Detriment

 Faced with conflicting testimony on who initiated the termination, the WCJ concluded that Navarro's action in presuming that Cook voluntarily terminated was unreasonable.   There is substantial evidence to support this conclusion.

The record demonstrates that, although she had not been released to work by her treating physician, Cook reported to work and offered to work.   She informed Navarro that her doctor had not released her and that there were some tasks she still could not perform.   When she was told that Raley's could not use her, the WCJ found that “she was somewhat at a loss as to her recourse.”   The WCJ assessed the weight and credibility of Navarro's testimony in light of his inability to recall what Cook said which led him to conclude that she wanted to terminate her employment.   Based on this assessment, he found that Navarro's presumption that Cook elected to quit when she left was unreasonable.   The characterization of her termination as voluntary on her termination form was therefore unwarranted.   The fact that Cook was never given a copy of this form also supports an inference that it may not have accurately summarized their conversation.   These factual findings are conclusive on appeal and fully support the conclusion that Raley's terminated Cook.

 The discriminatory act which supports a violation of section 132a must be predicated upon the industrial injury.  (22 Cal.3d at p. 665, 150 Cal.Rptr. 250, 586 P.2d 564.)  “This court emphasized this required connection in Leamon v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 1409, 1414–1415, 235 Cal.Rptr. 912, where it refused to find discrimination in the discharge of an employee because the evidence showed the employer had ample grounds for the discharge other than unexcused absences which were later found to be due to work injuries.   Because the employer's actions were not related to the work injuries or time missed because of such injuries, there could be no discrimination prohibited under section 132a.”  (Stemler v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 577, 580, 251 Cal.Rptr. 364.)

Section 132a “does not specify what is required for an employee to set forth a prima facie case of discrimination.   Some states specify that discrimination must be shown to have been motivated exclusively by the compensation claim.   Presumably, the California rule is that a prima facie case can be made by showing that the industrial injury was a cause, though not the sole cause, of the discriminatory conduct by the employer.”  (Hanna, Cal.Law of Employee Injuries and Workmen's Comp., 2.Ed., Vol. 1, § 1401(3).)  This rule was recently applied in Barns, supra, 216 Cal.App.3d at page 531, 266 Cal.Rptr. 503, where the court held that the employee had presented a prima facie case under section 132a because “it is undisputed that his industrial injury was a direct cause for his loss of employment.”  (Emphasis added.)   Although Barns is not factually identical to the case before us, it demonstrates the principle that a prima facie case sufficient to shift the burden of proof is made out where the industrial injury is a cause of the alleged discrimination.8

 Although it is undisputed that Cook imposed some restrictions on her ability to work, these restrictions were directly caused by an injury sustained in the course and scope of her employment.   Her injury was thus a direct cause of the alleged discrimination.   Knowing that her treating physician had not released her to work, and without further inquiry, Navarro in effect gave Cook an ultimatum to perform all tasks and run the risk of further injuring herself or not working.   The ensuing termination constituted prima facie detriment sufficient to shift the burden of proof to Raley's on business realities.

Defense of Business Realities

There was substantial evidence that Raley's did not meet its burden of proving that its termination of Cook was “necessary” and “directly linked to business realities.”  (Smith, supra, 152 Cal.App.3d at p. 1109, 199 Cal.Rptr. 881.)

 Business realities do not necessitate the termination of employment unless the employer reasonably believes that the worker is permanently disabled from performing the job, or will be disabled for such a long time that termination is necessary in light of demonstrated business realities.   (Barns, supra, at p. 535, 266 Cal.Rptr. 503.)  “In order to reasonably believe that a worker is permanently barred from resuming employment, the employer must have some evidence that the injury itself is sufficiently permanent and stable to permit a prognosis with reasonable medical certainty.”  (Emphasis in original.)  (Id. at p. 536, 266 Cal.Rptr. 503.)

 The court in Barns, supra, held that the employer had failed to carry its burden of proving that its refusal to restore Barns to light duty and its termination of him were necessitated by the realities of doing business.   Of consequence to this action is the court's determination that “even if light duty had been unavailable for some reason, none of the asserted justifications formed a reasonable basis for believing in May 1987 that it was necessary to terminate his employment, only eight months after the injury occurred, at a time when Barns was still showing improvement and his injury had not yet been declared permanent and stable.”  (Id. at p. 533, 266 Cal.Rptr. 503.)   The court found that “complete termination of employment based on a mere likelihood of permanent disability, where the worker's injuries are not yet permanent and stable” was unwarranted.  (Id. at p. 533, 266 Cal.Rptr. 503.)

Raley's argues that Barns is not controlling because it was based on unique facts unlikely to occur again.9  It is true that Barns was released to light duty, refused work, then terminated whereas Cook was released to normal duties, requested light work and then terminated.   The overriding factor here and in Barns is that both employees were terminated as a result of their injuries without a reasonable basis for concluding that their injuries were permanent and that they would be permanently unable to perform all of their former duties.   Raley's argues that Cook's “self-determination” of her medical status is dispositive.   This argument ignores the fact that Cook's treating physician had not released her to work.   Her action was thus not a self-certification devoid of medical justification.   Furthermore, she informed Navarro of this conflict in opinion.   Despite this knowledge, Navarro terminated her without inquiring whether she would be able to return later or whether her injury was permanent.10

Raley's failed to meet its burden of proof for two reasons.   First, as noted by the WCJ, “whether or not light work was available was not at all certain except that Mr. Navarro testified that he could not recall whether decorating work was available at the time.”   It is undisputed that Cook had performed this work in the past and that Raley's had this type of work approximately four times each year.   It is reasonable to infer from his testimony that Navarro took no action to determine if this work was or would be available.   Raley's termination of Cook only five months after her injury based on an asserted but unsubstantiated absence of light work was precipitous.   That Cook continued to maintain that she was unable to resume full duties at the hearing in December 1988 is not relevant to the reasonableness of Raley's actions in July of 1987.   Second, at the time of her termination, Navarro “did not know then whether her disability was permanent or still temporary․”   As a result, the Board adopted the finding of the WCJ that “the evidence is sufficient to conclude applicant was being penalized for having been injured on the job and loosing [sic] time from work because of that injury․”   There was sufficient evidence in the record to support this conclusion.   Although Cook informed Navarro that her own doctor had not released her to work, Navarro did not inquire if her injury was permanent.   He did not contact Claims Management to discuss or verify her status.   Navarro made no effort to determine if Cook would be able to return at a later time.11

Under these circumstances, there was substantial evidence to support the Board's conclusion that Raley's did not prove that its termination of Cook was necessitated by legitimate business realities.

III

ATTORNEY'S FEES ***

DISPOSITION

The Board's award is affirmed and the case is remanded to the Board for an award of reasonable attorney's fees under section 5801.   Costs to respondent Cook.

FOOTNOTES

1.   All further undesignated statutory references are to the Labor Code.

2.   Although Dr. Clark referred to Cook here as a “grocery checker”, it is clear from his report that he knew she was a courtesy clerk who “bagged groceries”.   He did not appear to be aware of the amount of lifting involved in her work, however, as he made no reference to tasks other than bagging groceries and noted that Cook reported that she could not lift a pot weighing one-half to one pound.

3.   Under section 5952, the scope of review by the court “shall not be extended further than to determine, based upon the entire record ․ whether:  [¶] (a) The appeals board acted without or in excess of its powers.  (b) The order, decision, or award was procured by fraud.  [¶] (c) The order, decision, or award was unreasonable.  [¶] (d) The order, decision, or award was not supported by substantial evidence.  [¶] (e) If findings of fact are made, such findings of fact support the order, decision, or award under review.  [¶] Nothing in this section shall permit the court to hold a trial de novo to take evidence, or to exercise its independent judgment on the evidence.”

4.   By amendment effective for injuries occurring on or after January 1, 1990, discrimination based on filing or making known an intention to “file a claim for compensation with his or her employer” is also prohibited.  (§ 132a (Amended by Stats.1989, c. 892, § 20).)

5.   Prior to Smith, the Second District held that where an employer refuses to allow an employee to return to work because there was no work available which she could perform without either the risk of reinjury or further injury, there was no violation of section 132a.   The court stated that if the employee could demonstrate that she could have returned to work and performed her job without risk of reinjury or further injury to herself, then the Board could properly draw an inference of prohibited discriminatory action by the employer unless the employer can demonstrate to the contrary.  (Western Electric Co. v. Workers' Comp. Appeals Bd., supra, 99 Cal.App.3d 629, 644–645, 160 Cal.Rptr. 436.)   This analysis is not inconsistent with the holding in Smith.   Once an employee shows prima facie detriment and the employer meets its burden of demonstrating business realities based on medical evidence of the risk of reinjury, the burden shifts back to the employee to rebut with evidence of ability to perform without risk of reinjury.   Unlike the present case, in Western Electric, the employer's doctor placed restrictions on the employee due to risk of reinjury, whereas the employee's doctor had released her to normal duties.   The WCJ also found that the employer had made a good faith effort to place the employee in a position consistent with the restrictions.   No positions were found.   The court annulled the Board's decision reversing the WCJ and finding a violation.   It held that there was no substantial evidence of discrimination under section 132a.

6.   Both parties requested and were granted leave to file supplemental briefs on the effect of Barns, supra, 216 Cal.App.3d 524, 266 Cal.Rptr. 503.   The somewhat convoluted facts in Barns are briefly these:  Barns was temporarily disabled by an on-the-job injury to his finger while working in a sawmill.   He was given lighter duty while recovering.   After he was medically released for normal duty, he reinjured this finger.   He was again released for light work.   He was refused work because the company did not want to take the chance he may be reinjured.   Barnes accepted the carrier's offer of vocational rehabilitation benefits.   He told his rehabilitation counselor that he could do any job except his original one and that he wanted to avoid working in sawmills because of his hand.   Shortly thereafter, he was terminated based on the risk of reinjury and his acceptance of rehabilitation services.   Prior to his termination, his injury was not permanent.   After his termination, he was medically released to work without restrictions and rehabilitation benefits were discontinued on the grounds that he was able to return to his usual occupation.   He was thereafter refused work for existing openings.   (Id. at pp. 527–528, 266 Cal.Rptr. 503)

7.   Malice or bad faith is not required for a violation of section 132a.   Acts “which are motivated entirely by neutral criteria unrelated to the claimant or the class of industrially injured employees may nevertheless violate section 132a.   Of course, evidence tending to prove malice or bad faith will necessarily undercut a tendered defense of ‘business realities' ”.  (Smith, supra, 152 Cal.App.3d at p. 1110, n. 5, 199 Cal.Rptr. 881.)

8.   Barns' termination was based on medical evidence that he could not return to his former position due to risk of re-injury.   This rule is in keeping with the liberal construction of the act as demonstrated in a related context in the interpretation of “proximate cause” for an injury “arising out of and in the scope of employment” under section 3600.   The “definition of ‘proximate cause’ is not identical to that found in common law tort principles.   In applying this requirement, ‘reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.  [Citation.]’ ”  (Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 734, n. 3, 190 Cal.Rptr. 904, 661 P.2d 1058.)

9.   See Footnote 5, ante.

10.   A hindsight analysis based on Cook's testimony a year later that she still could not perform her duties is not the appropriate method of addressing the reasonableness of Raley's action at the time it terminated her.

11.   In his report of July 8, 1987, Dr. Clark stated, “it seems to me that the patient is for practical purposes permanent and stationary at this time.   She is ready for a final rating.”   As indicated previously, this opinion was in conflict with that of both Drs. Joy and Young.   It was not until November 30, 1987, that Dr. Spademan indicated that her disability was permanent, stationary and ratable.   Despite Dr. Clark's opinion, there is no indication in the record that Navarro had this report.   It is undisputed that Navarro did not know or ask whether Cook's disability was permanent or temporary when he terminated her.

FOOTNOTE.   See footnote *, ante.

DAVIS, Associate Justice.

PUGLIA, P.J., and SPARKS, J., concur.