Stanford Law School - Robert Crown Law Library

Filed 6/26/03

IN THE SUPREME COURT OF CALIFORNIA

STATE OF CALIFORNIA
DEPARTMENT OF REHABILITATION )
et al.,
S100557
Petitioners,
) Ct.App.
4/1
D035665
v.
WCAB
No.
SDO189011
WORKERS’ COMPENSATION
APPEALS BOARD and RONALD
LAUHER, )
)
Respondents.

We address in this case two issues concerning the administration of the
workers’ compensation scheme in this state that have escaped definitive
resolution. First, when an employee who has suffered an industrial injury returns
to work following a determination the injury has become permanent and
stationary, is the employee entitled to temporary disability indemnity (TDI) to
compensate him for time off from work while pursuing continuing medical
treatment for that permanent injury? Second, does an employer discriminate
against the injured employee within the meaning of Labor Code1 section 132a if it

1
All further statutory references are to the Labor Code unless otherwise
stated.
1

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requires the employee to use sick and vacation leave when away from the
workplace seeking treatment for his permanent injury? We answer both questions
in the negative.2
FACTS
Applicant Ronald Lauher had worked as a rehabilitation counselor for
petitioner State of California Department of Rehabilitation (employer) for 25 years
when he submitted a claim for workers’ compensation benefits based on work-
related stress and depression. Dr. Donald Houts submitted a report stating Lauher
suffered from Gerstmann’s Syndrome, i.e., a brain lesion causing Lauher to
experience learning disabilities, but that he had responded to a number of
medications, and his condition was permanent and stationary. Based on this
medical report, Lauher entered into a stipulation with his employer and the
employer’s adjusting agency, State Compensation Insurance Fund (SCIF),
concluding he had suffered a compensable industrial injury to his psyche causing
temporary disability, and that this injury produced a permanent disability of 23
percent, compensable at $140 per week, to a total of $11,970. The stipulation
further stated that “[t]here IS a need for medical treatment to cure or relieve from
the effects of said injury. As specified in the report of Donald Houts, M.D., dated
05/12/97.”
The workers’ compensation judge (WCJ) thereafter accepted the stipulation
and denied Lauher’s additional claims for penalties under section 132a based on
allegations that his supervisor had made harassing telephone calls to Lauher and

2
Because we find employer did not discriminate against its employee, we
need not decide the third issue raised, which concerned whether the Court of
Appeal improperly disregarded the factual findings made below.
2

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his family, and that employer, before agreeing to the stipulation, had discriminated
against Lauher by requiring that he use accrued sick and vacation time for
absences to attend medical appointments. The WCJ denied a petition for
reconsideration, as did the Workers’ Compensation Appeals Board (WCAB or the
Board).
After agreeing to the stipulation, Lauher returned to work. He also
continued to see Dr. Houts for treatment. Dr. Houts was available for
appointments only during regular business hours. Lauher’s round-trip journey
from his office to Dr. Houts’s office is 58 miles. Depending on the traffic, it took
Lauher between two and one-half hours to four hours to drive to Dr. Houts’s
office, have a session with him, and return to Lauher’s place of employment.
Employer informed Lauher he would not be paid his full salary unless he took sick
leave or vacation time for time spent away from his office seeing Dr. Houts.
Lauher used close to 200 hours of either sick leave or vacation time to cover his
medical appointments with Dr. Houts.
Lauher then filed the petition that forms the basis of this case, seeking
reimbursement for the sick and vacation leave his employer docked him for time
he spent seeing Dr. Houts for poststipulation treatment, as well as penalties for
discrimination pursuant to section 132a. SCIF responded and explained that it had
paid Lauher industrial disability leave and TDI for his period of temporary
disability, but that he was not entitled to receive either benefit in the future
because his industrial injury had become permanent and stationary. Because,
according to the stipulation, Lauher was entitled to “future medical treatment,”
SCIF alleged that employer “continues to provide” for such treatment and denied
any discrimination: “[Employer] has not discriminated against the applicant
regarding non-reinstatement/reimbursement of leave time. The Employer’s policy
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in this regard is based on good faith business necessity and has been universally
applied in industrial and non-industrial injuries.”
The WCJ ruled that Lauher “established a nexus between his industrial
injury and [his employer’s] conduct of requiring him to take sick leave to attend
doctor’s appointments.” Specifically, citing section 4600, the WCJ ruled that
Lauher was “entitled to workers’ compensation benefits in the form of medical
treatment” and that includes “ ‘all reasonable expenses of transportation, meals
and lodging’ and ‘one day of temporary disability indemnity for each day of
wages lost. . . .’ The worker’s permanent and stationary status has no bearing on
his entitlement to receive treatment. Labor Code § 4600 does not say that the
worker will be considered temporarily disabled on the day that he goes for
treatment, but it says that the worker will be entitled to receive temporary
disability indemnity for each day of lost wages. If a worker goes for treatment and
must miss time from work, the worker should not be assessed sick leave but,
rather, should be paid at the temporary disability rate for the time lost.” Further,
the WCJ held employer had not established that a good faith business necessity
justified docking Lauher’s sick leave under these circumstances and concluded
employer had unlawfully discriminated against Lauher. Accordingly, the WCJ
ordered employer to pay a penalty of 10 percent “of the cost of all past, present
and future medical treatment in this case” and also ordered employer to pay
Lauher $10,000 for violating section 132a. The WCJ thereafter denied a petition
for reconsideration; the WCAB, over one dissent, affirmed.
The Court of Appeal disagreed with the WCAB, finding Lauher had not
met his burden of presenting a prima facie case of discrimination under section
132a. Accordingly, the appellate court annulled the WCAB’s decision. We
granted Lauher’s petition for review.
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DISCUSSION
A. Background
More than 90 years ago, our Legislature was directed to “create and enforce
a liability on the part of all employers to compensate their employees for any
injury incurred by the said employees in the course of their employment
irrespective of the fault of either party.” (Cal. Const., former art. XX, § 21, added
Oct. 10, 1911.) This language was modified by an amendment adopted on
November 5, 1918,3 which is in the current state Constitution, as renumbered,
without substantive change. (Cal. Const., art. XIV, § 4.) The Legislature
complied with this directive by enacting various provisions of the Labor Code.
This statutory scheme “rest[s] on the underlying notion that the common-law
remedy [for industrial injuries to workers], with the requirements of proof incident
to that remedy, involves intolerable delay and great economic waste, gives
inadequate relief for loss and suffering, operates unequally as between different
individuals in like circumstances, and that, whether viewed from the standpoint of
the employer or that of the employee, it is inequitable and unsuited to the
conditions of modern industry.” (Western Indemnity Co. v. Pillsbury (1915) 170
Cal. 686, 693.) “[T]he theory of [the workers’ compensation] legislation is that
the risk of injury to workmen in the industries governed by the law should be
borne by the industries, rather than by the individual workman alone. As the
ultimate result, the burden imposed in the first instance upon the employer, will, it

3
The 1918 amendment provided in part that the Legislature should “create,
and enforce a complete system of workmen’s compensation, by appropriate
legislation . . . .” (Cal. Const., former art. XX, § 21, as amended Nov. 5, 1918.)
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is said, be distributed, as part of the cost of production, among the consuming
public.” (Id. at p. 694.)
“This system attempts to assure employees of an expeditious remedy both
adequate and certain, independent of any fault on the part of employees and
employers. At the same time, it provides the employer with a liability which is
determinable within defined limits. It represents a philosophy that industry, as a
cost of doing business, should provide for the care and rehabilitation of workers
disabled by work injuries. In this way, society supports the program as a[n]
integral element of commerce and industry, rather than through tax-supported
plans.” (1 Herlick, Cal. Workers’ Compensation Law (6th ed. 2001) § 1.01[4],
p. 1-4.)
In creating and maintaining a system of workers’ compensation, the people
of this state made an important public policy decision and transformed how we
address workplace injuries. It should be remembered, however, that the purpose
of an award under the workers’ compensation scheme “ ‘is not to make the
employee whole for the loss which he has suffered but to prevent him and his
dependents from becoming public charges during the period of his disability. . . .
In short the award transfers a portion of the loss suffered by the disabled employee
from him and his dependents to the consuming public. . . . Complete protection is
not afforded the employee from disability because this would constitute an
invitation to malinger or to be careless on the job as he would then lose nothing in
assuming a disabled status.’ ” (Universal City Studios, Inc. v. Worker’s Comp.
Appeals Bd. (1979) 99 Cal.App.3d 647, 660.)
Once an injured worker is awarded compensation for an industrial injury
and that award is affirmed by the Board, our review of that decision is limited. As
to findings of fact, we defer to the Board’s findings if supported by substantial
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evidence. (§ 5952;4 Braewood Convalescent Hospital v. Workers’ Comp. Appeals
Bd. (1983) 34 Cal.3d 159, 164.) While we accord “ ‘significant respect’ ” to the
Board’s interpretation of statutes in the area of workers’ compensation (Avalon
Bay Foods v. Workers’ Comp. Appeals Bd. (1998) 18 Cal.4th 1165, 1174
(Avalon)), we subject the Board’s conclusions of law to de novo review (Barnes v.
Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685; see Western Growers
Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233
[“Questions of statutory interpretation are, of course, for this court to decide”]).
The Legislature, by enacting section 3202, has helped frame the issue of
review by an appellate court. That section provides that issues of compensation
for injured workers “shall be liberally construed by the courts with the purpose of
extending their benefits for the protection of persons injured in the course of their
employment.” Thus, “ ‘[a]lthough the employee bears the burden of proving that
his injury was sustained in the course of his employment, the established
legislative policy is that the Workmen’s Compensation Act must be liberally

4
Section 5952 provides: “The review by the court shall not be extended
further than to determine, based upon the entire record which shall be certified by
the appeals board, 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.”
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construed in the employee’s favor . . . , and all reasonable doubts as to whether an
injury arose out of employment are to be resolved in favor of the employee.
[Citation.] This rule is binding upon the board and this court.’ ” (Lamb v.
Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280.) Moreover, whether
an employee’s injury arose out of his employment is not the only question subject
to this rule: “All aspects of workers’ compensation law . . . are to be liberally
construed in favor of the injured worker.” (Save Mart Stores v. Workers’ Comp.
Appeals Bd. (1992) 3 Cal.App.4th 720, 723.)
With this standard of review in mind, we turn to the first issue posed in this
case: Was Lauher entitled to TDI to reimburse him for wages lost while pursuing
medical treatment for a permanent and stationary industrial injury?
B. Entitlement to TDI to Replace Wages Lost Attending Medical
Appointments for Treatment of a Permanent and Stationary
Injury
Lauher contends that “as a necessary means to the end of ensuring prompt
medical treatment [pursuant to section 4600], [an] employee is entitled to
temporary total disability indemnity for the time lost from work while attending
necessary medical treatment.” As we explain, because his industrial injury had
become permanent and stationary, he was no longer entitled to receive TDI.
Two of the types of benefits available to the worker injured on the job are
temporary disability indemnity, or TDI, and permanent disability indemnity, or
PDI. Although both take the form of financial benefits, “[i]t must be remembered
that temporary disability indemnity and permanent disability indemnity were
intended by the Legislature to serve entirely different functions. Temporary
disability indemnity serves as wage replacement during the injured worker’s
healing period for the industrial injury. [Citation.] In contrast, permanent
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disability indemnity compensates for the residual handicap and/or impairment of
function after maximum recovery from the effects of the industrial injury have
been attained. [Citation.] Permanent disability serves to assist the injured worker
in his adjustment in returning to the labor market. [Citation.]” (Maples v.
Workers’ Comp. Appeals Bd. (1980) 111 Cal.App.3d 827, 836; see also
Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 294.)
That TDI is intended as wage replacement is inferable from section 4653,
which requires temporary total disability be calculated as “two-thirds of the
average weekly earnings during the period of such disability, consideration being
given to the ability of the injured employee to compete in an open labor market.”
Because “[t]emporary disability indemnity is intended primarily to substitute for
the worker’s lost wages, in order to maintain a steady stream of income” (J. T.
Thorp, Inc. v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 333;
Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd., supra, 34
Cal.3d at p. 168), an employer’s obligation to pay TDI to an injured worker ceases
when such replacement income is no longer needed. Thus, the obligation to pay
TDI ends when the injured employee either returns to work (Huston v. Workers’
Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868; see also § 4651.1) or is
deemed able to return to work (Bethlehem Steel Co. v. Ind. Acc. Com. (1942) 54
Cal.App.2d 585, 586-587), or when the employee’s medical condition achieves
permanent and stationary status (Industrial Indem. Exch. v. Ind. Acc. Com. (1949)
90 Cal.App.2d 99; see generally Kopitske v. Workers’ Comp. Appeals Bd. (1999)
74 Cal.App.4th 623, 631; Ritchie v. Workers’ Comp. Appeals Bd. (1994) 24
Cal.App.4th 1174, 1179; 1 Hanna, Cal. Law of Employee Injuries and Workers’
Compensation (rev. 2d ed., Peterson et al. edits., 2002) § 7.02[1], p. 7-7 (Hanna)).
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By contrast, section 4650 provides that the first permanent disability
payment must be made by the employer within “14 days after the date of the last
payment of temporary disability indemnity.” From this, we may infer the
Legislature anticipates an employer has no legal obligation to pay PDI until the
obligation to pay TDI has ceased. Accordingly, we held in LeBoeuf v. Workers’
Comp. Appeals Bd. (1983) 34 Cal.3d 234 that “[t]he right to permanent disability
compensation does not arise until the injured worker’s condition becomes
‘permanent and stationary.’ ” (Id. at p. 238, fn. 2.) “A disability is considered
permanent after the employee has reached maximum medical improvement or his
or her condition has been stationary for a reasonable period of time.” (Cal. Code
Regs., tit. 8, § 10152; see Gee v. Workers’ Comp. Appeals Bd. (2002) 96
Cal.App.4th 1418, 1422, fn. 3; 1 Hanna, supra, § 8.03, pp. 8-16 to 8-17.)
That Lauher’s industrial injury was permanent and stationary is undisputed.
Lauher’s physician, Dr. Houts, so reported, and Lauher entered into a stipulation
with SCIF to that effect. That Lauher had returned to work is also undisputed.
Under these circumstances, we conclude he was not entitled to any further TDI
payments to compensate him for wages lost due to his attending medical
appointments during the workday. “An injured employee cannot be temporarily
and permanently disabled at the same time; thus, permanent disability payments
do not begin until temporary disability payments cease.” (City of Martinez v.
Workers’ Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 609; see also Ritchie v.
Workers’ Comp. Appeals Bd., supra, 24 Cal.App.4th at p. 1180 [same]; New
Amsterdam Cas. Co. v. Ind. Acc. Com. (1951) 108 Cal.App.2d 502, 507 [same];
1 Hanna, supra, § 7.02[1], p. 7-8 [same].) Here, Lauher had passed out of the
healing period (for which TDI serves as a wage replacement) and had agreed to a
stipulation compensating him for his diminished ability in the workplace due to a
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permanent and stationary injury. Because Lauher had begun collecting PDI, he
was no longer entitled to TDI.
Lauher’s counterarguments are not persuasive. As did the WCJ, he first
relies on section 4600, which relates generally to medical and hospital treatment
for an injured worker. That section provides in pertinent part that “Medical,
surgical, chiropractic, acupuncture, and hospital treatment, including nursing,
medicines, medical and surgical supplies, crutches, and apparatus, including
orthotic and prosthetic devices and services, that is reasonably required to cure or
relieve from the effects of the injury shall be provided by the employer.” He
contends that section 4600 should be liberally construed to include replacement of
lost wages occasioned by an employee’s medical treatment. Although he is
correct that “[t]he Legislature intended that section 4600 shall be liberally
interpreted in favor of the employee’s right to obtain reimbursement” (McCoy v.
Industrial Acc. Com. (1966) 64 Cal.2d 82, 86; Rodriguez v. Workers’ Comp.
Appeals Bd. (1994) 21 Cal.App.4th 1747, 1758), he is incorrect that even a liberal
interpretation of section 4600 will extend so far as to authorize the payment of
temporary disability indemnity to replace lost wages when an injury has become
permanent and stationary.
Lauher apparently would have us analogize the right to reimbursement for
sick and vacation leave used for seeking continuing treatment for a permanent and
stationary industrial injury to the right to reimbursement for transportation costs.
Citing Avalon, supra, 18 Cal.4th 1165, Hutchinson v. Workers’ Comp. Appeals
Bd. (1989) 209 Cal.App.3d 372, and Bundock v. Herndon and Finnigan (1923) 10
I.A.C. 32, Lauher contends that because section 4600 has been construed liberally
to compensate an injured worker for transportation costs associated with obtaining
medical treatment, we similarly should conclude he is entitled to TDI to
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compensate him for wages lost while seeking treatment with Dr. Houts. We
disagree because the two situations are not comparable. In Avalon, we observed
that although section 4600 “does not expressly refer to medical treatment
transportation expenses as an aspect of medical treatment benefits, they have
consistently been so regarded under the workers’ compensation laws. [Citations.]”
(Avalon, supra, at p. 1173.) “The board’s practice . . . of awarding medical
treatment transportation expenses,” we observed, “is of long standing,” noting that
such benefits have been paid “[a]s early as 1923.” (Id. at p. 1174.) No
comparable precedent exists for compensating an injured employee for his wage
loss once his injury becomes permanent and stationary.
Nor is Lauher’s claim for TDI to offset the associated wage loss he would
incur should he fail to use his sick and vacation leave during his appointments
with Dr. Houts supportable as a conceptual matter. Lauher argues that “[i]t
necessarily [follows] that if an injured worker loses wages from attending
necessary and mandated . . . medical treatment, there is a resultant chilling effect
on the injured worker’s ability to obtain medical treatment.” (Italics added.) We
disagree and reiterate that although TDI is intended as a wage replacement while
the injured worker is healing from his injury, once the injury becomes permanent
and stationary and/or the employee returns to work, any future benefits authorized
by the workers’ compensation scheme are not intended as wage replacement. The
worker is provided medical benefits, including reimbursement for transportation
costs (Avalon, supra, 18 Cal.4th 1165), during the healing period in order to
enable him to return to productive employment and to prevent him from becoming
a public charge. Once he returns to work, in addition to the wages he earns, he is
also compensated in the form of PDI for the permanent diminution of his abilities
caused by his industrial injuries. The system of workers’ compensation is not
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intended to provide full and total recompense for any and all consequences of a
worker’s injury, but instead represents a compromise between the interests of
workers and those of employers. As the Court of Appeal reasoned below, quoting
Mead v. Diamond International Corporation (1974) 39 Cal.Comp.Cases 1, 4:
“ ‘[I]n compensation practice day in and day out employees are totally
uncompensated for wages lost while attending to medical treatment during their
work day. It has long been considered that in exchange for that blanket coverage
of compensation without regard to fault, the employee bears some of the
burden.’ ” (Quoting the trial referee in Mead.) We agree.5
Although Lauher relies on specific language in section 4600 mentioning
reimbursement for transportation expenses, such language applies to a specific and
discrete situation not present in this case. Thus, the second paragraph of section
4600 provides in part: “Where at the request of the employer, the employer’s
insurer, the administrative director, the appeals board, or a workers’
compensation judge, the employee submits to examination by a physician, he or
she shall be entitled to receive in addition to all other benefits herein provided all
reasonable expenses of transportation, meals, and lodging incident to reporting for
the examination, together with one day of temporary disability indemnity for each
day of wages lost in submitting to the examination.” (Italics added.) Contrary to
the views of both Lauher and the WCJ below, this specific statutory benefit is not
a broad obligation to pay TDI to replace an employee’s wages for time away from

5
For the same reason, we reject the argument by amicus curiae California
Applicants’ Attorneys Association that, even if Lauher is not entitled to TDI in
this situation, he is nonetheless entitled to some form of wage replacement using
TDI as the “measure of recovery.”
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work while pursuing medical treatment for a permanent and stationary injury.
Rather, this benefit is in the nature of a medical-legal benefit, reimbursing the
employee for his time when requested to submit to a medical examination to
resolve a compensation claim. Lauher cannot take advantage of this benefit, both
because his semi-regular treatment with Dr. Houts is not undertaken at the request
of one of the enumerated entities, such as his employer or SCIF, and because his
appointments with Dr. Houts are for continuing treatment, not for an
“examination” connected with resolving an application for benefits.
Finally, Lauher argues the Schedule of Administrative Penalties,
Administrative Director Rule 10111.1(a)(4), which is codified in California Code
of Regulations, title 8, section 10111.1, subdivision (a)(4) (hereafter rule 10111.1),
indicates the Legislature’s intent that section 4600 be interpreted broadly enough
to authorize payment of TDI to reimburse an employee for time away from work
seeking medical treatment even though the employee’s injury has become
permanent and stationary. The Board accepted this argument as further support
for awarding TDI to reimburse Lauher for time spent out of the office seeking
treatment with Dr. Houts, but, with due respect to the Board, we do not.
Section 129, subdivision (a) provides in part: “To make certain that injured
workers, and their dependents in the event of their death, receive promptly and
accurately the full measure of compensation to which they are entitled, the
administrative director shall audit insurers, self-insured employers, and third-party
administrators to determine if they have met their obligations under this code.” In
connection with this auditing procedure, section 129.5, subdivision (a) provides in
pertinent part: “The administrative director may assess an administrative penalty
against an insurer, self-insured employer, or third-party administrator for
[enumerated failings].” Finally, section 129.5, subdivision (b) requires the
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administrative director to “promulgate regulations establishing a schedule of
violations and the amount of the administrative penalty to be imposed for each
type of violation.”
Pursuant to this legislative delegation, the Labor Department’s
administrative director promulgated rule 10111.1(a)(4). That provision sets forth a
schedule of graduated financial penalties for failures to pay enumerated benefits.
In particular, rule 10111.1(a)(4) provides: “The penalty for each failure to pay
mileage fees and bridge tolls when notifying the employee of a medical evaluation
scheduled by the claims administrator, in accordance with Labor Code Sections
4600 through 4621; or to pay mileage fees and bridge tolls within 14 days of
receiving notice of a medical evaluation scheduled by the administrative director
or the appeals board; or to object or pay the injured worker for any other
transportation, temporary disability, meal or lodging expense incurred to obtain
medical treatment or evaluation, within 60 days of receiving a request, is: [¶] $25
for $10 or less in expense; [¶] $50 for more than $10, to $50, in expense; [¶] $75
for more than $50, to $100, in expense; [¶] $100 for more than $100 in expense.”
(Italics added.)
Lauher contends this administrative rule, with its specific mention of
“temporary disability,” supports his view that the Legislature intended section
4600 be interpreted to authorize the payment of TDI as a replacement for wages an
employee loses while pursuing medical treatment for an industrial injury that has
become permanent and stationary. No basis for such a conclusion exists. Read as
a whole, rule 10111.1(a) addresses several distinct situations. For example, rule
10111.1(a)(1) addresses the failure to pay the self-imposed penalty for a late
indemnity payment pursuant to section 4650, subdivision (d). Rule 10111.1(a)(2)
addresses the failure to begin paying permanent disability indemnity in a timely
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fashion. Rule 10111.1(a)(3) addresses the failure timely to reimburse a worker for
self-procured medical treatment.
At issue here is rule 10111.1(a)(4). That subsection addresses the failure to
pay transportation and associated costs in certain enumerated situations. Thus, it
first prescribes an administrative penalty for failing to pay mileage and tolls “when
notifying the employee of a medical evaluation scheduled by the claims
administrator.” (Italics added.) Such an evaluation would typically occur during
the healing period when a worker would claim entitlement to TDI, but it could
also occur at other times, for example, when the employee’s ability to return to
work is undisputed but disagreement exists over the degree of the permanent
injury, in which case further medical evaluations may be necessary. Nevertheless,
although Labor Code section 4600 specifically provides for payment of
transportation expenses and temporary disability when the evaluation is performed
at the request of, for example, the employer or the employer’s insurer, neither this
clause of rule 10111.1(a)(4) nor Labor Code section 4600 authorizes TDI or wage
replacement where, as here, an employee seeks medical treatment for a permanent
injury.
The second clause of rule 10111.1(a)(4), which sets forth the administrative
penalty for failure to pay mileage and tolls “within 14 days of receiving notice of a
medical evaluation scheduled by the administrative director,” similarly fails to
mention wage replacement. Here, too, the medical evaluation referred to would
typically occur during the healing period to determine the nature and extent of a
worker’s injury in connection with an application for benefits. In the less frequent
situation of a medical evaluation conducted after an injury is permanent and
stationary, the requirement that the evaluation be “scheduled by the administrative
director” would bring the case within the specific language of Labor Code section
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4600, which provides for payment of transportation expenses and TDI when
submitting to an “examination” at the “request” of “the administrative director.”
Again, there is no mention in this clause of TDI or wage replacement where the
employee seeks medical treatment on his own.
Finally, rule 10111.1(a)(4) prescribes a penalty for the “failure . . . to object
or pay the injured worker for any other transportation, temporary disability, meal
or lodging expense incurred to obtain medical treatment or evaluation, within 60
days of receiving a request.” (Italics added.) This clause of rule 10111.1(a)(4)
differs from the first two clauses in two respects. First, unlike the two previous
clauses, this clause refers to both “treatment” and “evaluation.” Second, it
specifically mentions “temporary disability.” Although the mention of
“treatment” could refer to medical care after a worker’s industrial injury becomes
permanent and stationary, it seems unlikely the administrative director, exercising
delegated legislative powers, intended to authorize payment of TDI to replace
wages an employee loses while pursuing medical treatment for a permanent and
stationary injury, absent any statutory authorization for such a benefit. Moreover,
the mere mention of “temporary disability” in rule 10111.1(a)(4) is insufficient to
create a benefit untethered to any statutory authorization. In short, rule
10111.1(a)(4) does not speak at all to the question whether an injured worker is
entitled to TDI to compensate him for wages lost while seeking medical treatment
once his injury has become permanent and stationary.
In sum, we find no authority for the proposition that an injured worker is
entitled to payment of TDI to reimburse him for wages lost while pursuing
medical treatment for an industrial injury once that injury has become permanent
and stationary. On the contrary, once the employee’s injury is permanent and
stationary and, as here, the employee returns to work, he is no longer entitled to
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TDI. Exercising independent review on this legal question (Barnes v. Workers’
Comp. Appeals Bd., supra, 23 Cal.4th at p. 685), we find the Board erred in ruling
otherwise.
C. Discrimination Pursuant to Section 132a
Lauher next claims that his employer discriminated against him within the
meaning of section 132a because he had suffered an industrial injury. This
discrimination, he claims, took the form of his employer’s insistence that he use
his accumulated sick and vacation leave for the time he was out of the office
seeing Dr. Houts for treatment of his injury. Lauher claims he was thus “treated
differently than other employees who had not sustained a work-related injury
. . . .”6
Section 132a provides: “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 ten thousand dollars ($10,000), together with costs and expenses not in excess

6
Although Lauher argued in the Court of Appeal that this discrimination also
took the form of failure to pay him TDI for his time away from work seeing Dr.
Houts, it does not appear he has renewed that claim in this court. In any event, as
we find he was not entitled to TDI once his industrial injury became permanent
and stationary, SCIF cannot be found to have discriminated against him by failing
to pay TDI in this circumstance.
18

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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.” (Italics added.) No criminal penalty is at issue in this case;
we address only the Board’s imposition of a $10,000 administrative penalty on
Lauher’s employer.
“[T]o warrant an award [pursuant to section 132a] the employee must
establish at least a prima facie case of lost wages and benefits caused by the
discriminatory acts of the employer.” (Dyer v. Workers’ Comp. Appeals Bd.
(1994) 22 Cal.App.4th 1376, 1386.) The employee must establish discrimination
by a preponderance of the evidence (Western Electric Co. v. Workers’ Comp.
Appeals Bd. (1979) 99 Cal.App.3d 629, 640), at which point the burden shifts to
the employer to establish an affirmative defense (Barns v. Workers’ Comp.
Appeals Bd. (1989) 216 Cal.App.3d 524, 531). Although we defer to the Board’s
determination of facts if supported by substantial evidence, we review the Board’s
legal decisions de novo, for “[i]t is for the court to decide whether the facts found
by the Board constitute a violation of section 132a.” (Id. at pp. 530-531.)
To decide the merits of Lauher’s claim, we must decide what section 132a
means when it refers to “discrimination.” As one appellate court has noted,
“[n]either the Legislature nor the courts have fashioned a clear rule for
distinguishing those forms of discrimination which are actionable under section
132a and those forms which are not.” (Smith v. Workers’ Comp. Appeals Bd.
(1984) 152 Cal.App.3d 1104, 1108 (Smith).) Nevertheless, some boundary
markers have been delineated. Under its express terms, an employer may not
“discharge[], or threaten[] to discharge” an employee because, like Lauher, he has
filed a claim for compensation. Moreover, citing the prefatory statement that “[i]t
is the declared policy of this state that there should not be discrimination against
19

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workers who are injured in the course and scope of their employment” (§ 132a),
we have explained that the type of discriminatory actions subject to penalty under
section 132a is not limited to those enumerated in the statute. Instead, we have
interpreted section 132a liberally to achieve the goal of preventing discrimination
against workers injured on the job. (Judson Steel Corp. v. Workers’ Comp.
Appeals Bd. (1978) 22 Cal.3d 658, 666-669.) We immediately cautioned,
however, that “[s]ection 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.)
Noting this last passage, the court in Smith, supra, 152 Cal.App.3d 1104,
held that “save for the two exceptions just described [i.e., reemploying employees
who are unqualified or for whom no position is available], action which works to
the detriment of the employee because of an injury is unlawful under section
132a.” (Id. at p. 1109, italics added.) This test of “detriment” to the employee
was accepted as the applicable standard in Barns v. Workers’ Comp. Appeals Bd.,
supra, 216 Cal.App.3d at page 531 (“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”) as well as by at least one commentator
(1 Hanna, supra, § 10.11[1], p. 10-20 [“[t]he critical question is whether the
employer’s action caused detriment to an industrially-injured employee”]).
The Court of Appeal in this case, however, found the Smith formulation
“analytically incomplete.” The court explained that, although Lauher had clearly
suffered a detriment by having to use his accumulated sick leave and vacation time
for his visits to see Dr. Houts, he never established he “had a legal right to receive
TDI and retain his accrued sick leave and vacation time, and that [his employer]
had a corresponding legal duty to pay TDI and refrain from docking the sick leave
20

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and vacation time.”7 Thus, said the court, “[t]o meet the burden of presenting a
prima facie claim of unlawful discrimination in violation of section 132a, it is
insufficient that the industrially injured worker show only that . . . he or she
suffered some adverse result as a consequence of some action or inaction by the
employer that was triggered by the industrial injury. The claimant must also show
that he or she had a legal right to receive or retain the deprived benefit or status,
and the employer had a corresponding legal duty to provide or refrain from taking
away that benefit or status.”
We agree that for Lauher merely to show he suffered an industrial injury
and that he suffered some detrimental consequences as a result is insufficient to
establish a prima facie case of discrimination within the meaning of section 132a.
As we explained, ante, our system of workers’ compensation does not provide a
make-whole remedy. “The Workers’ Compensation Law is intended to award
compensation for disability incurred in employment. ‘The purpose of the award is
not to make the employee whole for the loss which he has suffered but to prevent
him and his dependents from becoming public charges during the period of his
disability.’ ” (Universal City Studios, Inc. v. Worker’s Comp. Appeals Bd., supra,
99 Cal.App.3d at pp. 659-660.) “The purpose of workmen’s compensation is to
rehabilitate, not to indemnify, and its intent is limited to assuring the injured
workman subsistence while he is unable to work and to effectuate his speedy
rehabilitation and reentry into the labor market.” (Solari v. Atlas-Universal
Service, Inc. (1963) 215 Cal.App.2d 587, 600.) Consistent with this view, for

7
As noted, ante, Lauher no longer claims he is entitled to a penalty under
section 132a due to his employer’s failure to pay TDI.
21

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example, section 4653 provides that payment for temporary total disability is only
“two-thirds of the average weekly earnings during the period of such disability.”
An employer thus does not necessarily engage in “discrimination”
prohibited by section 132a merely because it requires an employee to shoulder
some of the disadvantages of his industrial injury. By prohibiting “discrimination”
in section 132a, we assume the Legislature meant to prohibit treating injured
employees differently, making them suffer disadvantages not visited on other
employees because the employee was injured or had made a claim.
Lauher claims he was subjected to discrimination within the meaning of
section 132a because he “was treated differently than other employees who had
not sustained a work-related injury and were not under the mandates of the Labor
Code.” He claims “[t]he employer’s actions were directly related to the work
injury and the resultant time the injured employee had to miss from work because
of the medical appointments to cure or relieve the effects of the work injury.”
Lauher’s argument fails to appreciate that, although his injury was industrial,
nothing suggests his employer singled him out for disadvantageous treatment
because of the industrial nature of his injury. We assume that employees with
nonindustrial injuries must follow the same rule and use their sick leave when
away from the office attending medical treatment. Certainly nothing Lauher
alleges suggests otherwise. For example, he does not allege he alone is being
singled out for the requirement that he use his sick leave, or that other employees
are permitted to leave the office for medical appointments related to nonindustrial
injuries and are not required to use their sick leave.
Because Lauher does not allege that other employees are permitted to be
away from their workplace for medical care yet need not use their sick leave if
they wish to be paid their full salaries, we conclude Lauher fails to demonstrate he
22

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was the victim of discrimination within the meaning of section 132a. To hold
otherwise would elevate those who had suffered industrial injuries to a point
where they enjoyed rights superior to those of their coworkers. Nothing in the
history or meaning of section 132a’s antidiscrimination rule supports such an
interpretation.8

8
Because we find Lauher failed to establish a prima facie case of
discrimination within the meaning of section 132a, we need not address SCIF’s
contention that employer had a legitimate business reason for requiring Lauher to
use his sick leave and vacation time when away from the office seeing Dr. Houts
for treatment. For the same reason, we also decline to address the argument by
amicus curiae California Employment Law Council that we should reexamine and
discard the holding of Judson Steel Corp. v. Workers’ Comp. Appeals Bd., supra,
22 Cal.3d 658, that section 132a should be liberally construed in favor of injured
workers. We also decline to address the invitation to reinterpret section 132a to
require proof of discriminatory intent. These arguments are not necessary to
resolve the present matter and, in any event, were not raised by any party or
amicus curiae before the WCJ, the WCAB, or the Court of Appeal.
23

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CONCLUSION
The decision of the Court of Appeal annulling the decision of the Board is
affirmed.
WERDEGAR, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
24

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion State Department of Rehabilitation v. WCAB
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 8/10/01 - 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S100557
Date Filed: June 26, 2003
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Richard Kriman, Robert W. Daneri and David M. Goi for Petitioners.

Stephen D. Underwood and Teresa C. Eggemeyer for CSAC Excess Insurance Authority as Amicus Curiae
on behalf of Petitioners.

Paul, Hastings, Janofsky & Walker and Paul Grossman for California Employment Law Council as Amicus
Curiae on behalf of Petitioners.

Jones, Day, Reavis & Pogue, Elwood Lui, Scott D. Bertzyk and John A. Vogt for Los Angeles County
Metropolitan Transportation Authority as Amicus Curiae on behalf of Petitioners.

__________________________________________________________________________________

Attorneys for Respondent:

James J. Cunningham; Siegel & Moreno, Lisa G. McLean and Robert D. Baker for Respondent Ronald
Lauher.

William A. Herreras and Susan Silberman for California Applicants’ Attorneys Association as Amicus
Curiae on behalf of Respondent Ronald Lauher.

No appearance for Respondent Workers’ Compensation Appeals Board.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

David M. Goi
1275 Market Street
San Francisco, CA 94103
(415) 565-1645

Paul Grossman
Paul, Hastings, Janofsky & Walker
555 South Flower Street
Los Angeles, CA 90071
(213) 683-6000

Elwood Lui
Jones, Day, Reavis & Pogue
555 West 5th Street, Suite 4600
Los Angeles, CA 90013-1025
(213) 489-3939

James J. Cunningham
625 Broadway, #1400
San Diego, CA 92101
(619) 231-9113

Robert D. Baker
Siegel & Moreno
350 West Ash Street, #900
San Diego, CA 92101
(619) 525-7626

William A. Herreras
200 South 13th Street, Suite 310
Grover Beach, CA 93483
(805) 473-8550

2

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Opinion Information

Date:	Docket Number:
Thu, 06/26/2003	S100557

Disposition
Jun 26 2003	Opinion: Affirmed

Dockets
Sep 12 2001	Request for publication filed (initial case entry)   By petitioners {State Of California Department of Rehabilitation and State Compensation Insurance Fund} C/A recommends denial.
Sep 19 2001	Petition for review filed   By counsel for Respondent {Ronald Lauher}
Sep 19 2001	Record requested
Oct 4 2001	Second Record Request
Oct 9 2001	Received Court of Appeal record   1 manilla file jacket and loose briefs.
Oct 9 2001	Answer to petition for review filed   by counsel for petitioner State of CA, Dept. of Rehab. & State Comp Ins. Fund.
Oct 24 2001	Petition for Review Granted (civil case)   Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno JJ.
Oct 24 2001	Letter and form sent to counsel re:   certification of Interest. Completed form and 7 copies should be returned within 15 days.
Nov 8 2001	Certification of interested entities or persons filed   by petitioners State of CA, Dept. of Rehabilitation and State Compensation Insurance Fund.
Nov 15 2001	Letter and form sent to:   counsel for respondent re certification of interest. (2nd request)
Nov 21 2001	Request for extension of time filed   by petitioner asking to Dec. 23, 2001 to file petitioner's opening brief on the merits.
Nov 26 2001	Association of attorneys filed for:   Respondent (Lauher) by counsel
Nov 28 2001	Extension of time granted   to and including Dec. 23, 2001 to file respondents opening brief on the merits. No further extensions are contemplated.
Dec 20 2001	Certification of interested entities or persons filed   by respondent Ronald Lauher.
Dec 27 2001	Opening brief on the merits filed   by counsel for respondent Ronald Lauher. **40n**
Jan 15 2002	Received:   premature application and ac brief by The California Applicants' Attorneys Assoc. in support of respondent Ronald Lauher.
Jan 28 2002	Answer brief on the merits filed   by petitioner State of CA, Dept. of Rehabilitation & State Compensation Insurance Fund.
Feb 20 2002	Reply brief filed (case fully briefed)   by counsel for respondent Ronald Lauher. **40n**
Feb 25 2002	Permission to file amicus curiae brief granted   California Applicants' Attorneys Association in support of respondent Ronald Lauher.
Feb 25 2002	Amicus Curiae Brief filed by:   California Applicants' Attorneys Association in support of respondent Ronald Lauher. Answer due within 20 days.
Mar 11 2002	Received application to file Amicus Curiae Brief   by CSAC Excess Insurance Authority in support of petitioner (Dept. of Rehab).
Mar 14 2002	Permission to file amicus curiae brief granted   CSAC Excess Insurance Authority
Mar 14 2002	Amicus Curiae Brief filed by:   by CSAC Excess Insurance Authority in support of petitioner (Dept. of Rehab). Answer due within 20 days.
Mar 18 2002	Response to amicus curiae brief filed   by counsel for petitioners to California Applicants' Attorneys Association brief filed 2/25/02.
Mar 19 2002	Received application to file Amicus Curiae Brief   by California Employment Law Council in support of petitioners. (applic & brief seperate)
Mar 22 2002	Received:   application to file supplemental Amicus Curiae brief by California Applicants' Attorneys Association in support of respondent Ronald Lauher.
Mar 22 2002	Permission to file amicus curiae brief granted   by California Employment Law Council in support of petitioners.
Mar 22 2002	Amicus Curiae Brief filed by:   by California Employment Law Council in support of petitioners. Answer due in 20 days.
Mar 29 2002	Permission to file amicus curiae brief granted   supplemental amicus brief by California Applicants' Attorneys Association in support of respondent Ronald Lauher.
Mar 29 2002	Amicus Curiae Brief filed by:   California Applicants' Attorneys Association in support of respondent Ronald Lauher. (supplemental amicus brief) Answer due in 20 days.
Apr 17 2002	Response to amicus curiae brief filed   by petitioners - responding to supplemental ac brief by The California Applicants' Attorneys Association.
Sep 11 2002	Received application to file amicus curiae brief; with brief   L.A. County Metropolitan Transportation Authority [application contains explanation for lateness]
Sep 18 2002	Permission to file amicus curiae brief granted   L.A. County Metropolitan Transportation Authority.
Sep 18 2002	Amicus Curiae Brief filed by:   L.A. County Metropolitan Transportation Authority in support of petitioners. Answer may be served and filed by any party within 20 days.
Mar 6 2003	Case ordered on calendar   4-2-03, 1:30pm, L.A.
Mar 12 2003	Filed:   Request of petitioner to allocate oral argument time to two amici.
Mar 19 2003	Order filed   The court has received petitioners' request to divide their 30 minutes of oral argument time, granting 10 minutes of their time to amicus curiae California Employment Law Council and 10 minutes of their time to amicus curiae Los Angeles Metropolitan Transportation Authority. The court is primarily interested in hearing argument on the question whether the employee in this case has established a prima facie case of discrimination under Labor Code section 132a, and it expects all counsel who argue in the case to be prepared to address this point & to answer questions directed to this issue. On that understanding, the request to divide time is granted. If petitioners wish to reconsider the division of time in light of this order, petitioners should advise the court of that circumstance or before March 26, 2003.
Mar 20 2003	Filed:   request of resp. Lauher to divide oral argument time among three attorneys. (faxed)
Apr 2 2003	Cause argued and submitted
Apr 2 2003	Order filed   Permission granted for three counsel to argue on behalf of resp Lauher.
Apr 2 2003	Order filed   Permission granted for resp Lauher to allocate 10 min. oral argument time to Robert Baker and 10 min. to James Cunningham.
Apr 2 2003	Order filed   Permission granted for resp Lauher to allocate 10 min. of oral arg. time to A/C Calif. Applicant Attorneys Association.
Jun 26 2003	Opinion filed: Judgment affirmed in full   Majority Opinion by Werdegar, J. joined by George C.J., Kennard, Baxter, Chin, Brown & Moreno, JJ.
Jul 30 2003	Remittitur issued (civil case)   CA4/1
Aug 11 2003	Received document entitled:   Receipt for remittitur - from CA4/1

Briefs
Dec 27 2001	Opening brief on the merits filed
Jan 28 2002	Answer brief on the merits filed
Feb 20 2002	Reply brief filed (case fully briefed)
Feb 25 2002	Amicus Curiae Brief filed by:
Mar 14 2002	Amicus Curiae Brief filed by:
Mar 18 2002	Response to amicus curiae brief filed
Mar 22 2002	Amicus Curiae Brief filed by:
Mar 29 2002	Amicus Curiae Brief filed by:
Apr 17 2002	Response to amicus curiae brief filed
Sep 18 2002	Amicus Curiae Brief filed by:

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