Home > Uncategorized > Post-Award Sub-Rosa Leading to 0% PD AME Opinion Insufficient to Reopen

Post-Award Sub-Rosa Leading to 0% PD AME Opinion Insufficient to Reopen

Happy Monday, dear readers!

It makes your humble blogger especially happy to be able to bring you good news on a Friday – news to send you off on your weekend with a smile on your face.  Well, for every Yin there is a Yang, and so the laws of the universe dictate I greet you this Monday with news that is not so good.

Once in a while, we see a decision that makes us forget about laws and procedure, and just twitch helplessly with frustration at those results that make defendants feel that the system is rigged against them.

The recently writ denied case of City of Santa Maria v. Gowing, applicant sustained an admitted injury to his back and knee while employed as a police officer.  He received a 19% stipulated award for the back and 5% PD for the knee.  Defendant obtained sub rosa after the awards were issued and showed them to the AME, who concluded that applicant had no back disability based on the activity in the sub rosa video.

Defendant’s petition to reopen to reduce the permanent disability was denied because the WCJ concluded that there was no good cause – the requirement set by the WCJ was not only medical evidence obtained subsequent to the original decision, but “evidence of something not previously known to the WCAB that renders the original award inequitable.”  Furthermore, the WCJ applied the standard that the new evidence “could not have been discovered with reasonable diligence prior to the original hearing.”

The WCAB denied defendant’s petition for reconsideration, and the Court of Appeal denied review.

So… let’s talk about this.

If defendant’s position is taken at face value, applicant’s reporting of his symptoms to the AME were either a lie, or miraculously healed just after the stipulated award was issued.  In either case the AME concluded there was no back disability after viewing the video.

So why couldn’t defendant obtain this sub rosa video before entering into a stipulated award?  Well, why don’t private investigators knock on the doors of injured workers and tell them when and where they will be filmed?  The whole point in sub rosa is to record the injured worker when he or she thinks no one is watching.  What better time to do that than after an Award has issued and the injured worker thinks the matter is settled and no further “acting” is required?

In this case, it is apparent that the activity recorded by defendant after the issuance of the award was not consistent with the activity observed by the AME prior to the issuance of the award – hence the change in the AME’s opinions from 19% PD to 0% PD.

And you know what else? The same logic applies to not providing sub rosa video until AFTER applicant’s deposition.  The ENTIRE POINT of sub rosa video, and the reason why it is effective, is that it is a test of the applicant’s credibility.

Furthermore, let’s not forget that there is precedence in such situation to allow the defendant to reopen the case and adjust the award.  In Dunlap v. WCAB, for example (writ denied -1986), the WCAB allowed defendant to reopen a prior award based on the “new evidence” of a deposition transcript in which the medical examiner clarified his views from an earlier report.  Obviously, in that case, there was no change in applicant’s condition from before the award to the deposition.

Now, just think about the big picture for a minute – you have a case where it looks like the defendant has a supportable claim that applicant’s disability was not all he said it was.  Defendant has the sub rosa tapes and the AME’s medical opinion.  If the WCAB is not willing to let defendant reopen the case and proceed to litigate this point, what perception does this result breed in the minds of those who hear the claim of an injured worker legitimately injured?

If the WCAB is not willing to give a hearing to a defendant that presumably catches an allegedly injured worker red-handed, how does it affect our perception as citizens and voters of the workers’ compensation system as a whole?

Apparently, injured workers can stop pretending to be hurt as soon as the ink on their award is dry.

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  1. Rob
    April 3rd, 2017 at 09:27 | #1

    Perhaps the WCAB and the Court of Appeal did not want to smirch (or, worse, besmirch) a cop. Had it been someone of lesser “value” in the community — say, a strawberry picker — perhaps the result would have been different.

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