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County of San Luis Obispo v. Workers' Compensation Appeals Board9/29/2005
CERTIFIED FOR PUBLICATION
Opinion ordered published October 19, 2005.
The County of San Luis Obispo (County) petitions for a writ of review to determine the lawfulness of a decision of the Workers' Compensation Appeals Board (WCAB) finding the County discriminated against its employee, Art Martinez, for sustaining a work-related injury. (Lab. Code, ยง 132a.) The County contends it permissibly took Martinez off work because his medical restrictions were inconsistent with the requirements of his job. We agree that Martinez failed to establish a prima facie case of discrimination and that the County met its burden of showing reasonable business necessity.
FACTS
Respondent Art Martinez sustained industrial injury to numerous body parts, including his neck, spine, wrist and shoulder, on February 24, 2000, while working as a mental health therapist in the homeless outreach program for the County. The injuries occurred during an assault by a violent patient. The County admitted injury and paid Martinez temporary disability from the date of injury until he returned to work in February 2003.
On September 24, 2001, Martinez had back surgery. On June 17, 2002, Dr. Kissel, the surgeon, issued a report recommending that Martinez's work be modified so that he not be required to restrain patients to avoid reinjuring his lower back.
On December 9, 2002, Dr. Kissel issued a report declaring Martinez permanent and stationary. The report states that Martinez had lost 25 percent of his pre-injury capacity for bending, stooping, lifting, pushing, pulling, climbing and other activities involving comparable physical effort. Dr. Kissel contradicted his prior opinion and stated that Martinez's injury did not preclude him from physically restraining patients. On December 16, in a letter to Martinez's attorney, Dr. Kissel again stated Martinez's injuries did not preclude him from restraining combative patients.
Based on Dr. Kissel's revised opinion, the County permitted Martinez to return to work on February 23, 2003. His old job was not available, and he was placed at Vicente School, a facility serving emotionally disturbed teenagers.
Subsequently, Martinez selected Dr. Hutchinson as qualified medical examiner. He examined Martinez and issued a report on May 22, 2003. The report imposed work restrictions of no "very heavy lifting" and "heavy work activities." Dr. Hutchinson opined that Martinez should not be returned to a job with a potential for involvement in physical altercations. In a subsequent deposition, Dr. Hutchinson testified that Martinez had lost half of his pre-injury capacity for activities of bending, stooping, lifting, pushing, pulling, climbing or other comparable activities and that Martinez should not be doing a job with the potential of becoming involved in a physical altercation. In response to the question "if his job involves the potential for physical altercation, then he should not be doing that job," Dr. Hutchinson replied: " hat's what I've repeatedly said."
Martinez designated Dr. Ruda, a chiropractor, as his primary treating physician on May 22, 2003. In a report issued August 21, Dr. Ruda stated he was "in complete agreement" with Dr. Hutchinson's opinion.
The County's risk manager, Dori Duke, requested a description of Martinez's duties at Vicente School after being informed of the Hutchinson and Ruda reports. In response, County Mental Health Youth Services issued a memorandum on September 2, 2003, that described Martinez's duties as including the potential for altercations with teenagers, some weighing 300 pounds. The memo also states: "This program has been in existence fo
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