Claims & Lost Wages – LC §132a

In the case of Victoria Lacheta v. Olympic Security Services (2014 Cal. Wrk. Comp. P.D. LEXIS 324), applicant prevailed in her wrongful termination claim against her employer; however, she failed to sustain her burden of entitlement to lost wages six years after the initial Findings and Award. This case poses two questions:

(1) Does the WCAB have the jurisdiction to alter an award five years after a date of injury and

(2) What exactly does the applicant have to show in substantiating a claim for lost wages?

Labor Code §132a states in pertinent part: “(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 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 issue in this case was not the penal provisions set forth by the Code but the reimbursement of the lost wages applicant claimed she suffered due to her discriminatory discharge.

In regards to the first question, the Court answered this question quite briefly and succinctly by stating, “ [t]he appeals board is vested with full power, authority, and jurisdiction to try and determine finally all matters specified in section 132a subject only to judicial review. Moreover, the Appeals Board retains jurisdiction, even after five years, to enforce its awards (Lab. Code §5803). The WCAB addressed this question because applicant sought to have a 2008 Findings and Award enforced in 2014.  Due to the fact that the original 2008 Findings and Award was ambiguous in applicant’s entitlement to the amount of lost wages, the issue was being adjudicated now six years later!

As to the second question, the WCAB set strict guidelines by citing the Dyer v. Workers’ Comp. Appeals Board ((1994) 59 Cal. Comp Cas. 96) case which outlines the applicant’s burden of proof in demonstrating he or she suffered lost wages. The reimbursement of lost wages is remedial and not penal, the WCAB indicated that it should follow the overarching principle that lost wages and benefits are recoverable only if they were caused by the acts of the employer. This leads to several sub principles such as:

  1. An employee may not recover lost wages and benefits for any period in which he or she was not ready, willing and able to perform the duties of his or her position.
  1. An employee cannot recover for a willful loss of earnings and thus such things as a failure to remain in the labor market, a refusal to accept or quitting other employment and a failure to diligently search for work will preclude recovery.
  1. An employee is required to mitigate damages and a failure to mitigate may preclude an award.
  1. In any event, an award of lost wages must be reduced by such sums as the employee earned or might reasonably have earned during the relevant period.

Essentially, the employee must establish a prima facie case of lost wages and benefits caused by discriminatory acts of the employer keeping in mind the principles above. In the Lacheta case, the employee failed to meet her burden of proof and thus was awarded no

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