Bella injured her back pushing a heavy cart at work. When she complained of the pain, her boss told her to get a massage at his masseuse's shop, to take some over-the-counter pain medicine and to not file a workers' compensation claim. He even drove her to the store to buy ibuprofen.  As the pain grew more intense, Bella went to her primary care physician who refused to treat her because the injury occurred at work and was not covered by her personal health insurance. When Bella finally filed a workers' compensation claim and went to see the workers compensation doctor, her boss got angry and fired her.

Injuries at work that result in retaliation fall into a complicated area of law that bridges two separate legal systems: workers' compensation law and disability discrimination law. Retaliation is defined as subjecting a worker to an adverse employment action where a substantial factor in the decision to do so is the employee's status in a protected group or because the employee engaged in a protected activity.  One group that the law protects is people with disabilities.  One activity that it protects is filing or attempting to file a workers' compensation claim.

Workers' compensation law imposes a penalty on employers who retaliate against an employee for filing or attempting to file a workers' compensation claim.  The California Labor Code imposes civil liability on employers who discriminate against workers with disabilities. Under federal law a disability is a disease or condition that substantially limits the plainitff's ability to participate in major life activities.  Under California law a disability is a disease or condition that limits a plaintiff's ability to participate in major life activities.

One reason that back injuries may constitute a disability under California law is because of a case litigated in 2003 by Joseph Lovretovitch, a Los Angeles employment lawyer.  In that case, Colmenares v. Braemar Country Club, Inc., 130 Cal.Rptr.2d 662 (2003), the California Supreme Court found that a back injury could be held to limit a major life activity.  Specifically, the court held that:

A plaintiff seeking to establish physical disability under the FEHA had to show: (1) a physiological disease or condition affecting a body system; and (2) the disease or condition limited (as opposed to substantially limited, as required under federal law) the plaintiff's ability to participate in major life activities.

Section 132a of the California Labor Code provides a modest penalty for employers who fire an employee because he claimed or received workers' compensation benefits including:

1. A 50% increase in the workers compensation benefit up to $10,000,
2. The employee's costs and expenses up to $250,
3. Reinstatement and
4. Lost wages and benefits.

But depression and other emotional distress that the employee suffers because of and after being terminated, for example because of being unable to find another job, is not subject to the workers compensation exclusive remedy rule and the employee can sue in superior court. Bray v. WCAB, 26 Cal.App.4th 530 (1994).

In 2012, a California Court of Appeal held that a worker may not sue in a civil action in superior court for an employer's retaliation for filing a workers' compensation claim. Dutra v. Mercy Medical Center Mt. Shasta, Calif., 209 Cal.App.4th 750 (2012). The court held that section 132a barred alternative remedies and only allowed the employee to bring the retaliation claim through the workers compensation appeals process.  The court did note that the workers compensation law was not the exclusive remedy for disability discrimination, which includes retaliation for a disability.

A way to understand the difference is to consider the reason for the adverse employment action, here the company firing Bella. To the extent the reason Bella's boss fired her was because she brought the workers' compensation claim, Bella must bring the claim under section 132a of the California Labor Code as a workers compensation matter.  To the extent the employer fired Bella because she had a disability that interfered with her doing her job, or because the employer did not want to incur the expense or inconvenience of employing Bella because of her disability, Bella can bring that claim as retaliation for seeking a workplace accommodation and also for disability discrimination.  She can bring this claim in the superior court. If the employer did not explore with Bella how it could make reasonable accommodations to help her do her job with her disability, which may include a leave of absence, this claim is outside of the workers compensation "exclusive remedy" rule.

Sean Olender refers workers compensation cases to a California Certified Specialist in workers' compensation law located in Cupertino. In Bella's case, the workers' compensation lawyer managed the workers' compensation claim and Sean filed a civil complaint for disability discrimination and retaliation.

Sean reviewed Bella's medical documents, interviewed witnesses, and worked to organize important evidence. Sean was able to negotiate a settlement for Bella equal to approximately one year of wages. Bella was unhappy with the way her prior employer treated her, so she did not seek reinstatement. Bella was happy with the result of Sean's work.