K&S FARMS; COMP WEST INSURANCE, JOSE F. GAITAN, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJOSE F. GAITAN, Applicant,vs.K&S FARMS;COMP WEST INSURANCE, Defendant(s).Case No. ADJ4265919 (SAL 0115074)OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION Applicant seeks reconsideration of our March 2, 2009 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, wherein we rescinded the workers’ compensation administrative law judge’s (WCJ) December 11, 2008 Findings and Award and found that the employer did not discriminate against applicant under Labor Code section 132a. Applicant contends we erred in finding that the employer did not discriminate against applicant under section 132a, arguing that indirect evidence demonstrated a prima facie case of discrimination and that the evidence was not sufficient to demonstrate a business necessity defense. We have considered the Petition for Reconsideration, and we have reviewed the record in this matter. We have not received an Answer. For the reasons expressed in our March 2, 2009 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, which we incorporate herein, and for the reasons discussed below, we will deny applicant’s petition for reconsideration. Contrary to applicant’s suggestion, our prior decision did not raise the bar for workers or establish a new standard that allows only direct evidence to establish discrimination under section 132a. While indirect or circumstantial evidence “may” prove discrimination, it did not in this case. There simply was no evidence of any type showing that applicant was terminated because of his , industrial injury. The fact applicant belabors – that applicant was not working and, therefore, was not an expense to his employer at the time of his termination – proves nothing. As Kenneth Higashi testified, “They wanted to tell him early on so that he
