Archive for January, 2013

Facebook Nabs DUI Hit-and-Run; Why Not Fraudsters?

January 7th, 2013 No comments

A wise man once said “stupid is as stupid does.”  But one person’s stupidity can reap endless benefits to another’s wisdom, and here’s how.

The story making the news on the interwebs is that of an Oregon teenager who posted a Facebook status of “drivin drunk… classic 😉 but to whoever’s vehicle I hit I am sorry. :P.” (Slurred and borderline illiterate mistakes in the original.)

Sure enough, Drunky-McDUI hit a car and ran away to drink another day, but was turned in by Facebook “friends” who saw the Facebook post and heard about his misadventures.

What does this have to do with California Workers’ Compensation?  Plenty!

As suggested by your humble blogger many times before, the fact that people do stupid things and brag about them on Facebook, Twitter, LinkedIn or any other social media the kids are playing with today does not mean that those things are not fair game for the defense-side of this industry.

Your applicant will cry and moan about her depression at the deposition.  He will testify endlessly about how he can barely get out of bed because of every single body part hurting so much after his industrial injury.  You will hear claims of every kind imaginable up to the point of an award… but you know they aren’t true.

You also will hear whispers from co-workers of an injury being faked, of Ms. Applicant attending parties and dating or Mr. Applicant going skiing and working on digging a trench at his ranch (isn’t it great to get all those things done now that you don’t have to waste time at work?)

More and more of the world’s applicants are finding themselves on social media, and some can’t help but live their lives on the public stage, from reporting the fact that they are eating a sandwich to uploading video of how great they are on jet-skis.

So, what can you do right now to take advantage of such a weak degree of discretion?  Well, for starters, go to facebook and create a profile.  You don’t need to put in any information you don’t want to share with anyone – don’t upload a picture, or upload a picture of something random like a pencil or a puppy.  Look up your applicant by name and see what network he or she is on (usually, networks are organized by school, city, or employment).  And then just see what’s available to the public – is there any activity on there that is inconsistent with the applicant’s claims?

Odds are that one of the co-workers that is a Facebook friend but a real-life enemy might even report these activities to the employer if asked.  After all, that’s how Captain Genius got caught in the story above.



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No Objection to a DOR? No Problem — Off Calendar!

January 4th, 2013 No comments

In a recent case, the Court of Appeal denied applicant’s petition for a writ of review following the Workers’ Compensation Appeals’ Board’s denial of her petition for Removal from the workers’ compensation Judge’s order taking a case off calendar after a Mandatory Settlement Conference (say that sentence ten times fast!)

Here’s the skinny – applicant filed a Declaration of Readiness to Proceed, content with the available medical reports and ready to take the matter to trial.  Additionally, the defense had failed to issue a denial within 90 days of knowledge of the claim, so the injury was presumed compensable.  The defense did not object to the DOR, but did send an offer to use Agreed Medical Evaluators in this case to a random applicant’s firm (not the one representing the injured worker).  When no response came from the applicant’s firm that had nothing to do with the case, the defense requested a panel.

By the time the matter arrived before a Judge, applicant was ready to go.  Bring on the trial – this will be a slam dunk!  But defendant answered that it had requested a panel and was trying so gosh-darn hard to develop the record, couldn’t the matter go off calendar until a QME had a chance to look this case over?

Applicant was not pleased… she immediately argued California Code of Regulations section 10251(d) specifically states that the failure to object to a DOR is a waiver of objection to the DOR, and the matter should stay on the calendar.  At the very least, the matter should go to trial on the issue of presumed compensability…

The WCJ didn’t agree.  He found that the defense had acted with due diligence in procuring an additional evaluation (through the PQME process) and because judicial economy outweighs trying threshold legal issues before others, the matter was taken off calendar, and defendant got to triumphantly drag applicant to a QME evaluation.  And they all lived happily ever after…

Having trouble believing it?  Then I guess you’re not interested in the bridge I have for sale.

The real case happened in a similar fashion… just the roles were switched.  The parties made it to MSC without an objection to defendant’s DOR ever having been made by applicant.  The defendant even had what seemed like a solid Statute of Limitations defense.  But the WCJ ordered the matter off calendar and allowed applicant to proceed to a QME evaluation based on the due diligence of applicant’s AME proposals sent to a defense firm unrelated to the case.

The WCJ, in his Report and Recommendation, reasons that by denying defendant the right to take to trial the issue of the statute of limitations defense, the defendant is not exposed to undue prejudice or irreparable harm.  But this isn’t the case – even though the defendant is likely entitled to a total defense based on the statute of limitations, the defendant is instead going to have to shell out cash for medical-legal costs, deposition costs, and, (dare I point this out?) a bigger defense attorney bill (zealous and competent advocacy does not come free, after all…).

Your humble blogger has had cases referred a few days before the MSC, with no opportunity to depose the QME (or in some cases go to a QME) and the time having passed for an objection to applicant’s DOR.  Needless to say, your humble blogger found the Board less receptive to his due diligence in what little time was available.  But, then again, your humble blogger zealously represents workers’ compensation defendants.

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Even More on Vexatious Litigants

January 2nd, 2013 No comments

Welcome back from the Holidays, dear readers!  The kids are still home from school, the tree is still in your living room (and will remain there for the next month), and your humble blogger has vexatious litigants on his mind.

When vexatious litigants appeal, they don’t pull any punches.  My diligent readers may recall an earlier post on a certain vexatious litigant, and now your humble blogger brings you the story of yet another one.  A Mr. Hamid Khazaeli, a sales representative employed by Symaster Corporation, has conducted a merciless war on time and paper with his multiple filings in the workers’ compensation system.

An in pro per applicant, his actions resulted in a “vexatious litigant” finding, resulting in all filings having to be approved by the presiding judge in Oakland.

In retaliation, Mr. Khazaeli filed “Petitions for Reconsideration, Removal, Disqualification And To Compel Testimony of Judicial Or Quasi-Judicial Officers”, only to be followed by another petition, just three weeks later: “Petitions for Removal, Disqualification And To Compel Testimony Of Judicial Or Quasi-Judicial Officers.”

Applicant alleged that the dismissal of his applications was based on bias, fraud, ex parte communications on the parts of several WCJs, Commissioners, and Department of Industrial Relations employees.  He demanded that they be disqualified and submit themselves to deposition.  (He also demanded to know who the second shooter was in the Kennedy assassination, the location of Jimmy Hoffa’s final resting place, and why kids love Cinnamon Toast Crunch).

Anywho, this case wasn’t much for substantive law, but it did provide an opportunity for the WCAB to lay out some of the rules for disqualifying workers’ compensation Judges, which applicant did not appear to observe.  In its wisdom, the legislature set out higher standards than “[b]are allegations of bias and prejudice,” but instead require an affidavit which includes specific facts which lay out the cause for disqualification.  (See Labor Code section 5311; Code of Regulations section 10452.)

For example, if your humble blogger were to appear before a WCJ in his finest bow tie, and the WCJ were to glare at it with obvious envy, unconsciously tugging at his bolo tie as he said “no bow ties in my court!” there may just be grounds for disqualification.  (General Practice Tip: The California Supreme Court has ruled that there is an un-rebuttable presumption that bow ties are superior to bolo ties in all respects.)

The WCAB noted that applicant also failed to request automatic reassignment of the WCJ, nor did he provide any reasonable excuse for his failure to appear at two hearings scheduled to address his claims.

So, the WCAB ordered that the doors be closed in applicant’s face… but not until he had paid sanctions for his failures to appear.

Now, my readers of the softer heart might say: but he’s not an attorney, he doesn’t know the rules.  For that reason, your humble blogger does not perform his own dentistry work, nor does he neglect to retain the services of an auto-mechanic.   If he were to undertake an important operation in either field, he would suffer disastrous consequences – as applicant did in this case.

My readers of the still softer heart might say: but what if he couldn’t find an attorney?  Applicants’ attorneys do not take retainers, they don’t charge by the hour, and they don’t get an interest in applicant’s future earnings of naming rights to their yet-to-be-born children.  Applicants’ attorneys were for a percentage of the cut.  Upon retaining an attorney, the applicant and attorney are bound by sacred oaths of fiduciary duty and ethical conduct, and their fates are intertwined – when applicant wins, the attorney wins (and, sometimes, the applicant’s attorney wins even when the applicant loses).

So, if Mr. Khazaeli did not retain an attorney, it is either because he thought he was very smart and didn’t want to share his potential recovery, or no attorney saw any likelihood in his case prevailing and did not want to invest the time.

Several hundred hours later, having burdened the workers’ compensation system and the litigation budget of the defense, Mr. Khazaeli faces yet another defeat.  On the bright side, before too long, the type of person to be declared a vexatious litigant will show his true colors and incur the justified attention of the WCJs — so keep a good log of those hours wasted responding to frivolous papers!

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