WCDefenseCA

Your humble blogger, in the years of his youth, once read a story about a Japanese swordsmith, the twenty-seventh in his line.  Each generation, from the first all the way to his, had mastered the art of sword-making, learned secrets and new methods, and closely held those secrets within the family to consistently make excellent swords.  I marveled at the competence and skill that must have come with so long a line of craftsmen.  Of course, not all skills improve as they are passed from generation to generation.

Three generations of a family in San Bernardino County have been charged with various fraud crimes after the death of a worker in 2008.  State Compensation Insurance Fund noticed that the family’s company had been under-reporting and misclassifying employee information and payroll.

The District Attorney Investigator’s unit obtained search warrants and arrested a Husband-Wife-Daughter team, charging them with 11 felony counts of insurance code violations.  This investigation led to additional discoveries, including crimes committed by the son and grandmother, including Grand Theft and Conspiracy.  After all the family that steals together, appeals together.

WCDefenseCA congratulates Senior Investigator Hank Jun on an excellent investigation and wishes the best of luck to Deputy District Attorney Scott Byrd in prosecuting the case.

Shouldn’t there be some distinction between evidence offered to prove an affirmative fact or element and evidence offered in rebuttal?  Not according to the army of judges in the case of Ace American Insurance Company v. Workers’ Compensation Appeals Board (writ denied).

Applicant Emil Sulek had claimed that his shoulder injury precluded various physical activities, but the defense attorney found a witness who was prepared to testify that he had seen Mr. Sulek exceeding his claimed limitations.

When the parties appeared at a status conference, the hearing was turned into an Mandatory Settlement Conference, they filled out a 5-pager, and set the matter for trial.  The defense attorney did not list this rebuttal witness, and had not previously turned over the statements of that witness to the applicant’s attorney.

At trial, after applicant testified, the defense sought to have the rebuttal witness testify as well, but this effort was thwarted by the workers’ compensation Judge, who described this as “ambushing applicant at the hearing.”

Defendant petitioned for reconsideration, but received no sympathy from the Workers’ Compensation Appeals Board.  Instead, an opinion detailing Labor Code section 5502(e)(3) was offered.

The Court of Appeal did not ride to the rescue either, declining defendant’s petition for a writ of review.

It appears that the workers’ compensation system is adverse to applicants being caught red-handed when they have testified to half-truths and full lies.

The WCJ described this as ambush, and in some senses it is – if you want to catch criminals in a sting operation, you have to lay out the bait and strike during the act.  In workers’ compensation, there is no effective way to do this if the defense must lay its rebuttal cards out on the table.  Many WCJs don’t want to see surveillance or sub rosa tapes either.

Well, it appears that it, once again, falls to your humble blogger to set the record straight on a few facts.  If you are for some reason under the age of 12, please stop reading at this point.

1)      There is no Easter Bunny;

2)      There is no Santa Clause;

3)      FROM TIME TO TIME, APPLICANTS LIE!

And when applicants lie, they lie to get more money, more time off work, and more drugs.  The only thing that keeps the applicants that are inclined to lie from lying, is the risk of getting caught, losing their claim and incurring some sort of penalties (usually criminal).  The liars will never stick their necks out and testify in open court if they know that rebuttal evidence is coming.

Today’s blog post is appropriately started with the words of one of America’s most profound and provocative modern poets – Shawn Corey Carter (also known as the rapper Jay-Z):

If you’re having cornerback problems, I feel bad for you son; I got 99 problems, but work comp. ain’t one.

Professional football has once again tackled (get it? Tackled? Football?) California workers’ compensation issues.  The latest claim to fall off the Ridiculous Tree and hit every branch on the way down is that of Michael Jameson v. Cleveland Browns.

Michael Jameson is a former cornerback who played three seasons for the Cleveland Browns (2001-2003) after playing college football for Texas A&M University.  As the names “Cleveland” and “Texas” suggest, Jameson had not been employed in California until he played one game here for the Browns.  This was the only game in his career that took place in California.  Applicant claimed that his career-wide cumulative trauma should be adjudicated under California law by a California WC

This topic may sound familiar as it was the subject of a 3-part post on California Workers’ Compensation Appeals Board jurisdiction over visiting employees.

The workers’ compensation Judge ruled that California did have jurisdiction over the matter because Labor Code section 3600.5(b) does not apply.  The WCJ found that the defense had not provided admissible evidence with respect to Ohio’s laws proving that applicant had an available claim in Ohio.

Your humble blogger’s favorite quote from the WCJ? “Since the applicant played in that game, and paid California taxes, the California Courts should be protective of California taxpayers and extend their jurisdiction to them to protect their rights as given to them by the California Legislature.” Certainly, in other cases, this WCJ and all WCJs are very concerned with those other taxpayers, the employers, who undertake payroll taxes, business “licenses,” which are, of course, taxes, and countless other fees and extortions to ensure the pay and pension of California’s public servants. 

The defense attorney had cited Ohio cases and statutes, but the WCJ found that those citations were in the attorney’s brief and, therefore, were not “evidence.”  In all fairness, this is true – cases are not evidence or facts, but law.

On review, the WCAB granted reconsideration, ordering the WCJ to allow the parties to present additional evidence both as to the extent that the employer’s self-insurance covers out-of-state injuries and the law in Ohio.   It appears that it may be necessary for out-of-state employers to print out cases and statutes, mark them as exhibits, and move them into evidence.  Hopefully, the same rule will not one date apply to California case-law and statutes as well.