Where do these three remedies intersect?

Labor Code § 132(a) prohibits an employer from discriminating in any way against an employee because of that employee’s involvement in an industrial injury claim.  Where the discriminatory action under Labor Code § 132(a) is due to disability, apparent disability, or a history of disability, then concurrent remedies under FEHA and the ADA are available to the injured employee.  Assuming the disability discrimination alleged is either actual or constructive termination, then the common law remedy against wrongful termination is also available.  With these elements in mind, one can appreciate the admonition the Supreme Court gave us in Moorepark that not every adverse employment action that might give rise to a 132(a) action will necessary be a violation of FEHA or the ADA or support a common law wrongful termination tort action.

For purposes of this discussion, we will assume an employee sustained an admitted industrial injury which resulted in substantial disability and that the employee was terminated from employment allegedly because of that disability.  Upon consulting an attorney after receipt of the notice of termination, the following pleadings are filed in the designated form: 
(1)        Workers’ Compensation Appeals Board:
(a)        An Application For Adjudication of Claim requesting a determination of the underlying workers’ compensation issues – indemnity and medical benefits;
(b)        An Application For Increased Compensation by Reason of The Employer’s Violation of Labor Code § 132(a) to obtain back wages and benefits, reinstatement of employment, and a 50% increase in indemnity up to a maximum of $10,000.00 plus up to $250.00 in costs.
(2)        Department of Fair Employment and Housing (DFEH):
An administrative complaint that the employee was discriminated against (terminated from employment) because of disability which the employer failed to accommodate.  In this filing, which will be the basis for a civil suit, the employee is seeking damages for back wages and loss of benefits, future wage loss, punitive damages, and attorney’s fees or, in the alternative, reinstatement of employment.

Ideally, what should you do to defend these claims?

More than ever, the key to successful handling of these claims is communication, starting at the employer level.  It is essential that the person acting as the workers’ compensation liaison and the and the risk manager or human resource person dealing with employment law issues communicate regularly and completely so that each is aware of all the claims of potential litigation threatened by an employee or for which the company is at risk.  This shared information should be communicated to the workers’ compensation adjuster and the legal representatives in all forums.  Assuming the situation under discussion, it is essential that a coordinated response be devised.  This will undoubtedly require a strategy meeting, at least a telephone conference, with all the players on the employer’s side.