WCDefenseCA

What happens when a man is murdered on the job, but no one (except, perhaps, the at-large murderer) knows the motive for the slaying?  Enrique Vicente Rincon, deceased, was working in a liquor store when a hooded man walked in and shot him.  The gunshot wound resulted in Mr. Rincon’s death and the hooded gunman escaped.

The widow filed a claim for death benefits (Rincon v. South Bay Liquor & Market), and the defendant elected to put the issue of Arising Out of Employment/Course of Employment on trial.

The defense conceded COE, recognizing that the death causing injury occurred while Mr. Rincon was on the job.  But what was the motive for the murder?  If it was a personal vendetta against Mr. Vincent, then it can hardly be AOE – an ex-girlfriend, a driver cut off the day before, an angry neighbor in the final stage of the Hatfield – McCoy feud.  None of these have to do with the job, and should not be compensable (also known as the “personal risk” doctrine).

The investigating police officers could only speculate – it could have been a gang initiation, or a robbery in which the robber lost his nerve (explained by the fact that no money was taken during the crime).  There was really no way to know, unless the murderer was caught, or at least identified.

The Workers’ Compensation Judge applied the “mysterious circumstances” doctrine, holding that, because the motive for the murder was unknown, the death must be presumed to satisfy both the AOE and the COE requirements for finding the injury compensable.

The Workers Compensation Appeals Board adopted and incorporated the WCJ’s opinion.

Sometimes, nothing can be done – the facts aren’t there or there is no way to get them.  But in cases like these, the employer needs to do an even better job investigating the case than the police.

Who had a motive to kill the employee?  Facebook, e-mails, cell phone logs (and texts) should all be subpoenaed.  The only real restraint on the thoroughness of the investigation should be the cost (with no medical treatment and statutory caps on recovery, the limits are easy to see).

Mr. Rincon is the tragic victim of a terrible murder.  Unfortunately, the employer was victimized by California’s Workers’ Compensation system as well.

In civil and criminal cases, jurors aren’t allowed to conduct their own experiments or investigations, and must make do with the evidence presented at trial.

In the California Workers’ Compensation system, the Workers’ Compensation Judges are the finders of fact.  How far outside the courtroom can the WCJs go to perform their own investigations?

In a recent case, Madrigal v. 99 Cents Only Stores, the WCJ issued rating instructions to the DEU rater to rate the AME reports.  The DEU rated the reports at 57% permanent partial impairment.

Defendant requested to cross-examine the rater, and provided rebuttal testimony from its own rater, who rated applicant’s impairment at 11%.  The WCJ issued a Findings and Award, completely rejecting the testimony of defendant’s witness as biased.

The basis for this conclusion was the WCJ’s out-of-courtroom review of the witness’s company’s website, which appeared to be partial towards insurance companies.

In granting the petition for reconsideration, the Workers’ Compensation Appeals Board cited Advisory Committee Commentary to Canon 3 B (7) of the Code of Judicial Ethics, “explicitly prohibiting a judge from independently investigating the facts in a case.” (See page 13.)

Sure, the defendant was wronged, but a WCJ can just as easily look on Facebook to see post-injury photos of the “permanent total disability paraplegic” applicant jet-skiing two weeks before trial.

What are some ways around this?  Well, for one, adjusters and defense attorneys need to become familiar with the modern online search.  Pretend your teenage daughter is about to go out with a new boyfriend: maybe it’s time to learn a bit about him?

Don’t just Google the applicant or the applicant’s witness – did you check LinkedIn? Facebook? Twitter? MySpace? Google Plus?  What about a local Craigslist search for handy-man services offered?  Maybe Joe Applicant has been working another job this whole time.

What about past cases?  Did you run the applicant’s name through Lexis?

Once you have pictures you can put them before the judge, served on the applicant, and the bar and exclusion of this case will melt away.  It’s entirely possible that a WCJ wants to see this information but can’t investigate it because of restrictions such as in the Madrigal case.

Another important lesson from this is the effect of easy information on these cases.  In this case, the WCJ admitted the search and added it to the evidence; another judge might not be familiar with this case and find an internet investigation harmless and not worthy of mention.

That’s why defendants must scrutinize every word of a Finding and Award to make sure the evidence actually supports the findings, and the findings actually support the award.  If there is a missing link in that chain, it’s time to push the Recon button.  Even so much as a $0.03 error should be caught and dealt with immediately.

Perhaps some day WCJs will find their internet history made public record to ensure that no robed sleuths apply magnifying glass to the cyber-sidewalk?

In any case, your humble author wishes you a keen eye, a lucky day in court, and, as always, good hunting.