Meyer v. Byron Jackson, Inc.

• Decision Date: 30 October 1984
• Citation: 207 Cal.Rptr. 663,161 Cal.App.3d 402
• Court: California Court of Appeals Court of Appeals
• Parties: Jacob A. MEYER, Plaintiff and Respondent, v. BYRON JACKSON, INC., et al., Defendants and Appellants. B002037.

Page 663

207 Cal.Rptr. 663

161 Cal.App.3d 402

Jacob A. MEYER, Plaintiff and Respondent, v. BYRON JACKSON, INC., et al., Defendants and Appellants.

B002037.

Court of Appeal, Second District, Division 7, California.

Oct. 30, 1984.

Hearing Denied Feb. 20, 1985.

Oshman, Brownfield & Smith, George E. Brownfield, Los Angeles and Gerald H.B. Kane, Jr., Redondo Beach, for plaintiff and respondent.

LILLIE, Presiding Justice.

Byron Jackson, Inc. (now BJ-Hughes, Inc.) and Byron Jackson Service Equipment Co. (now BJ-Hughes Service Equipment Co.) appeal from judgment entered on a jury verdict against them and in favor of their former employee, Jacob Meyer, for damages for wrongful discharge.

Jacob Meyer worked for appellants for a period of ten years in various capacities finally becoming a mechanic welder. Meyer injured his back and shoulder while working in February 1972. He reported the injury to his foreman, who sent him to the company doctor where he received limited treatment. Meyer sought further treatment from another doctor at his own cost. He was given a corset which he wears daily to help his back. Meyer also developed a hernia in August 1972 which he believed was caused by the lifting he did at work. He reported the hernia to appellants, who insisted he file a claim under the group insurance policy as non-work-related, rather than file a claim for workers' compensation. He did so, and received only 80 percent reimbursement for the cost of his hernia surgery.

In September 1972 he filed two workers' compensation applications, one for the shoulder and back injury, and one for the lifting injury resulting in the hernia surgery. The two cases were consolidated for hearing. At the August 1973 hearing, Meyer testified as to the occurrence of both injuries, and described the pain he had in his shoulder and low back, as well as the various nervous complaints which arose after these injuries. Appellants' plant superintendent testified that Meyer never complained about physical disabilities at work, and that he performed his job cheerfully and without any observable impairment. The referee allowed the parties further time to submit rebuttal evidence as to these claims.

The superintendent was apparently surprised to hear of Meyer's physical complaints, and reported them to appellants after the hearing. Meyer continued to perform his job satisfactorily; appellants made no inquiries as to the safety of allowing him to continue in his position, nor did they modify his duties or criticize his performance at work. A second hearing was had on March 13, 1974. Meyer testified that his physical problems still remained, and further described his anxiety problems. The referee referred Meyer to independent medical examiners in the fields of psychiatry and orthopedics for testing. The plant supervisor also attended this hearing and appellants received a summary of its content. No change was made in Meyer's work duties nor was any inquiry made as to any safety risk he might pose in his job.

The referee issued his decision on July 12, 1974, giving Meyer a 32 percent disability rating, which was a composite of psychiatric disability and residual disability in his right shoulder and low back. He was awarded his medical expenses and temporary disability benefits for time lost from work. The decision included no work restrictions or recommendations for change in occupation. Approximately two weeks later, the plant superintendent was ordered by appellants' personnel director to terminate Meyer because he had a 32 percent disability and was too high a risk at his job. No consultation had been done with the superintendent or with the foreman, the two men who directly supervised and observed Meyer's work, prior to the decision to terminate him.

Meyer was terminated and brought the within civil action alleging appellants terminated him from his employment solely because he filed workers' compensation applications and testified in connection with such applications. He alleged his discharge was contrary to the public policy set forth in Labor Code section 132a, and sought damages for loss of income and benefits, as well as general damages and punitive damages. Appellants moved for judgment on the pleadings on the ground that section 132a gave exclusive jurisdiction of workers' compensation-related discrimination claims to the Workers' Compensation Appeals Board. The motion was granted. Meyer appealed from the resulting judgment, and the Court of Appeal reversed the judgment and remanded the cause for trial on the merits. (Meyer v. Byron Jackson, Inc., Cal.App., 174 Cal.Rptr. 428, hereinafter Meyer I.)

A trial was had, and the jury returned a verdict awarding Meyer $97,000 in financial losses, $32,000 for his emotional distress, and $100,000 in punitive damages. Judgment was entered, appellants' post-judgment motions were denied, and they now appeal.

I LAW OF THE CASE

Appellants initially raise the issue of jurisdiction. In Meyer I, the Court of Appeal held the superior court had jurisdiction over Meyer's claim for discriminatory discharge inasmuch as Labor Code section 132a, as amended in 1972, did not provide him with a remedy for the economic and emotional harm resulting from the discharge. This holding would ordinarily control this case under the doctrine of the law of the case, which provides that when an appellate court has rendered a decision and states in its opinion a rule of law necessary to the decision, that rule is to be followed in all subsequent proceedings in the same action. (People v. Scott (1976) 16 Cal.3d 242, 246, 128 Cal.Rptr. 39, 546 P.2d 327.) But appellants argue this case comes within the recognized exceptions to the doctrine's application: where there has been an intervening or contemporaneous change in the law or the establishment of a new precedent by controlling authority (Chase Brass & Copper Co. v. Franchise Tax Bd. (1977) 70 Cal.App.3d 457, 465, 138 Cal.Rptr. 901); or where its application will lead to a harsh or inequitable result. (Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 522, 154 Cal.Rptr. 164.) We conclude these exceptions are inapplicable in the present case.

The intervening change in law upon which appellants rely is the case of Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 290, 182 Cal.Rptr. 291, in which this district held Labor Code section 132a was the exclusive remedy available to an employee upon her claim of wrongful discharge because of her filing a workers' compensation claim for injury. This holding is clearly contrary to the Meyer I decision. However, the Portillo case is based on consideration of the statute as amended in 1978; Meyer I is based on the 1972 version of the statute, in effect at the time of Meyer's claim and therefore to be applied to his case. (See State of California v. Ind. Acc. Com. (1957) 48 Cal.2d 355, 361, 310 P.2d 1; Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 1028, 1031, 149 Cal.Rptr. 880; Lab.Code, § 4453.5.)

The differences in the two statutes are significant. The 1972 version provides in pertinent part: "Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the latter has filed ... an application with the appeals board, or, because the employee has received a rating, award or settlement, ... is guilty of a misdemeanor and subject to the provisions of Section 4553." The only remedies available in the section are misdemeanor charges against the employer, and, under section 4553, an increase of 50 percent in compensation benefits for the injury. The employee may thereby receive an increase in compensation for the injury itself, but he is afforded absolutely no remedy for the loss of wages and emotional harm resulting from the wrongful discharge. It is the absence of these remedies that provides the basis for the court's holding in Meyer I that section 132a does not preclude a civil suit for damages by an employee discharged under that section.

In contrast, section 132a as amended in 1978 does provide remedies for the employee. "Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer." A successful action under this amended section could make the wronged employee whole again. With such a full remedy available under the Labor Code, the Portillo court logically concluded the Legislature intended to provide by statute the exclusive remedy for a worker discharged in retaliation for exercising workers' compensation rights. (Portillo, supra, 131 Cal.App.3d at p. 287, 182 Cal.Rptr. 291) But this holding may not properly be extended to Meyer's claim under the 1972 statute; he had no right to reinstatement, and no right to reimbursement for lost wages and work benefits under the statute. The Meyer I conclusion that in the absence of a full remedy by statute Meyer could seek relief by civil action remains unchanged by the later Portillo case based on a later statute. We find no basis for an exception to the doctrine of the law of the case based on the Portillo decision.

We also find no harsh or inequitable result from the application of the law of the case to this action. Appellants argue they will unjustly face civil liability that no other employer will face in the future. Obviously where there is a change in the law a wrongdoer in one year may face liability different from that facing a wrongdoer in a succeeding year. To consider such difference a manifest injustice ignores the reality of the legislative process, and requires the question of liability to be set in stone for all time despite changing concepts of tort law and public policy. This is patently unreasonable and provides no basis for an exception to the doctrine of the law of the case. The present action is properly governed by the law of the case set forth in Meyer I.

II NLRB...