When “Law and Order” Meets Workers’ Compensation
The case of City of Redondo Beach v. Workers’ Compensation Appeals Board is not a recent one, but when it was brought to the attention of your humble blogger, the Law and Order music started to play and a post was deemed absolutely necessary.
Applicant Gene Tomatani apparently has three exciting accomplishments in his life (no doubt there are others as well). The first is to serve as President of the Police Officers Association; the second is to embezzle money from the association; and the third is to file a workers’ compensation claim.
An Agreed Medical Evaluator found that applicant’s left ventricular hypertrophy and hypertension predated applicant’s criminal activity of embezzling over $72,000 from the Police Officers Association. Therefore, as per the AME’s apportionment analysis, the injury is 2/3rd industrial.
At trial, the Workers’ Compensation Judge found that applicant had sustained an industrial injury, that he had an impairment rating of 52%, and that no apportionment was appropriate. Now comes the interesting part – applicant was questioned regarding the extent of his criminal activity, and he plead the 5th Amendment.
The WCJ ruled that, as there were still other charges that could be brought against applicant, even though he had already plead guilty to one of them, applicant retained his right to not testify regarding the extent of his criminal activity.
Neither the Workers’ Compensation Appeals Board nor the Court of Appeal were inclined to disturb the ruling that so clearly rewarded the stress of embezzlement with workers’ compensation benefits.
Although it may seem naïve, perhaps the appropriate thing for the defense to do in this situation was to contact the district attorney’s office from the start of the case, and determine a joint course of action. As a citizen, I would like to think that the activities of a cheating, lying, thieving police officer would be at the top of the DA’s list – public trust in law enforcement is a fragile creature, after all. If the DA’s office is not going to pursue additional charges, there should be some affirmative statement to that effect which could be presented at the Board.
In any case be forewarned that, even in the murky world of California’s workers’ compensation law, the 5th Amendment right against self-incrimination appears to be alive and well.
I had a similar but more egregious example in a NY claim. The issue was WC fraud which is heard in the venue of a WC ALJ hearing. When questioning the claimant about his work activity while collecting WC, he invoked his 5th amendment right against self incrimination. When we objected to the invocation the judge over ruled us as under section 114A (the fraud statute) of the NY WC law, criminal penalties can be attached. When we rebutted stating how can we successfully get a fraud finding if the claimant, won’t testify to his activities, the ALJ stated “that is your burden”. The silver lining is that it was reversed upon appeal and the claimant was compelled to testify he worked as a roofer while collection total disability.
That’s fantastic! I’m glad it got reversed on appeal – the court of appeals wasn’t interested in fixing this one. What might work is to allow employers to delay benefits until the conclusion of all criminal matters, but the applicant’s attorneys would scream bloody murder if the legislature tried to put that one in. Kudos to you for taking it up on appeal.