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Thread: Disposition

  1. #1
    Join Date
    Jun 2007
    Posts
    21

    Default Disposition

    After my attorney served the 132a for the first time my EMP.'s attorney responded in 4 days for a disposition at my attorney's office. A represenative from the workers comp insurance company, their attorney, my attorney and a court reporter will be there. Chances of a settlement offer at disposition? Does their attorney handle the settlement? If I settle what happens with the 132a filing? Naturally the settlement will include the 132a penalty but does it still go against their business license or is that only if we go to court?

  2. #2
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Disposition

    Diiamic, I believe you are referring to a "Deposition" (not "dispositon). Your Employer's attorney will be asking you questions under oath, and your testimony will be recorded by the Court Reporter transcriptionist.

    The defense attorney will be asking you a LOT of questions regarding your employment, the circumstance leading up to your allegation concerning the 132(a) claim, etc. YOUR attorney will be there to protect you from any inappropriate questioning by the DA, etc, and to also ask you follow-up questions for clarification.

    It is unlikely that you will receive a settlement offer at the conclusion of your deposition. THe DA will report back to your Employer how HE thinks your testimony either supports the 132(a), or any WEAKNESSES he thinks there may be....in other words, the DA's "assessment" of the merits of your 132(a) claim.

    IF you do not subsequently receive an off to settle the 132(a) portion, it will eventually go to trial for the WC Judge to decide...

  3. #3
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,017

    Default Re: Disposition

    If I settle what happens with the 132a filing? Naturally the settlement will include the 132a penalty but does it still go against their business license or is that only if we go to court?

    If you settle, the issue goes away...the ER pays the penalties...NOT the IC. You get your job back, with ''lost wages''...but IF there is an offer to settle this "informally", bet on not going back to work here..probably your "lost wages" will be offered, and a stipend on the penalty. The max penalty in a successful 132a is $10K, but don't expect to see that, in a offer to settle, or a judge's award. (of course it will depend on the severity of the issues surrounding your claim). A 132a is a difficult one to actually prove up.

    ''... does it still go against their business license or is that only if we go to court? ''

    What do you mean by "go against their license"...?
    This is not like keeping score, and too many 'bad points' will get the license pulled...how would the ER gain points'...for giving raises...?, and who would be there to give them 'good points'...?

    Keep in mind that a successful 132a gives you your old job back...You are charging your ER with doing something that is illegal...do you really think they want you there...? Do you really think you want to go back to work there...?
    How long after you RTW do you think it would be before you were terminated for cause?...even if the claim is unsuccessful, and the ER prevails...

  4. #4
    Join Date
    Jun 2007
    Posts
    21

    Default Re: Deposition

    Thank you for your replies. To clarify my attorney said that a 132a charges the employer with a misdemeanor and goes against their business license is that correct? In my case the 132a is easily proven. I have the termination in writing, vacation pay paid and there is something called the work number to verify status of employment and it says "no longer employed". I applied for unemployment and the ER stated the reason was "hurt at work and terminated". Do the back wages start from the last day worked or from the last TTD payment received?

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,017

    Default Re: Disposition

    Why do you persist in posting this issue in more than one place?
    You are not going to generate any more responses to your question...in fact it is perturbing to most readers here...including those who may be in a postition to offer you assistance.

    a 132a charges the employer with a misdemeanor and goes against their business license is that correct?

    Yes..and it is the WCAB judge who handles the issue.

    goes against their business license is that correct?

    WHAT do you mean 'goes against their business license'..? there is no one keeping a score, or anyone to deny a renewal of the license because you prevail on a 132a...

    In my case the 132a is easily proven.

    You better step back here...there is NOTHING easily proven...and no, there will not in all likelyhood be any settlement made at a deposition...a depo is merely to take the statements of the parties, under oath as to the circumstance/facts surrounding the issue.

    the reason was "hurt at work and terminated".

    That could mean a number of things..the least of which is that you were terminated BECAUSE you were 'hurt at work'...
    Attorney's have lots of ways to argue on both sides...don't be spending any of that presumed $10K penalty money just yet...AND, ask your attorney how far he's ready to pursue this...the max fees in a 132a are $250...not much to warrant a lot of an AA's time.

    Before you go further here, you should make yourself familiar with exactly what LC 132(a) really says...http://www.leginfo.ca.gov/cgi-bin/di...file=110-139.6

    132a. 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 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.

    (2) Any insurer that advises, directs, or threatens an insured
    under penalty of cancellation or a raise in premium or for any other
    reason, to discharge an 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 subject to the increased compensation and costs
    provided in paragraph (1).
    (3) Any employer who discharges, or threatens to discharge, or in
    any manner discriminates against any employee because the employee
    testified or made known his or her intentions to testify in another
    employee's case before the appeals board, is guilty of a misdemeanor,
    and the employee shall be entitled to reinstatement and
    reimbursement for lost wages and work benefits caused by the acts of
    the employer.
    (4) Any insurer that advises, directs, or threatens an insured
    employer under penalty of cancellation or a raise in premium or for
    any other reason, to discharge or in any manner discriminate against
    an employee because the employee testified or made known his or her
    intention to testify in another employee's case before the appeals
    board, is guilty of a misdemeanor.
    Proceedings for increased compensation as provided in paragraph
    (1), or for reinstatement and reimbursement for lost wages and work
    benefits, are to be instituted by filing an appropriate petition with
    the appeals board, but these proceedings may not be commenced more
    than one year from the discriminatory act or date of termination of
    the employee. The appeals board is vested with full power,
    authority, and jurisdiction to try and determine finally all matters
    specified in this section subject only to judicial review, except
    that the appeals board shall have no jurisdiction to try and
    determine a misdemeanor charge. The appeals board may refer and any
    worker may complain of suspected violations of the criminal
    misdemeanor provisions of this section to the Division of Labor
    Standards Enforcement, or directly to the office of the public
    prosecutor.

  6. #6
    Join Date
    Jun 2007
    Posts
    339

    Default Re: Disposition

    There is no system in place that I am aware of that effects their business license in any way. If you are successful in your pursuit of this it will cost the employer and you would be reinstated. The amount is dependant on other variables not available at the moment but in any case will not exceed $10,000.00.

    Everything BvIA has posted is right on the money. I only have one minor disagreement. That is what effect the statement made to unemployment will have. If unemployment has provided you with written documentation of such a statement it would certainly strengthen your case. Nothing is guaranteed but that statement does say a lot.

    The issue of a misdemeanor also may or may not apply. Again the allegation has to be proven. As you can see from BvIA's post you certainly have the right to file a complaint. Whether their actions are criminal or not will have to be investigated and proven.

    By all means from what information you have posted these are issues which you should pursue. It sounds like you are fortunate enough to have an attorney that is willing. As BvIA indicated there are many out there that would not see it as a profitable venture and therefore will not put the effort in.

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