WCDefenseCA

Happy Monday, dear readers!

You know, there is this wonderful movie that is not very well-known.  It’s called Johnny Dangerously, and therein lies a wonderful quote by the titular character: “Remember kid, crime doesn’t pay… well, [as Mr. Dangerously climbs into his ill-gotten limousine] it paid a little.”

That seems to be the lesson in a recent Court of Appeal decision, regrettably published as of November 1, 2017: Ford v. WCAB.  The Court of Appeal ruled that despite a conviction for fraud, if an injured worker can establish compensable industrial injury independent of the fraud, he or she is still entitled to benefits.

Applicant crushed one of his fingers in a car door while working, and sought workers’ compensation benefits.  In 2008, he was diagnosed with complex regional pain syndrome by a neurologist.  An AME examined him in 2009 but applicant refused to submit to grip strength testing, and the AME noted that applicant would not cooperate in an exam of his left upper extremity.  When visiting his treating physician, applicant would wear a sling.

Now comes the fun part!

Surveillance caught applicant removing his sling after doctors’ visits and driving his car, using his left hand to open the door and steer.  He was even videotaped using his left hand to carry a bag of groceries, and on another occasion videotaped driving to an appliance store where he lifting a washing machine into the back of the truck he was driving!

After the DA investigated, charges were filed and ultimately plead guilty to violating Insurance Code section 19781.4 and was placed on probation and ordered to pay $9,000 in restitution.

However, as the criminal case proceeded so did the workers’ comp case, and, despite the videos, the AME concluded that applicant lost most of the function of his hand, reducing it to a claw-like appendage.  A WCJ relied on these conclusions to issue an award of 70% PD, and the WCAB denied reconsideration.  When the employer sought reconsideration, this decision followed.

I’ve spoken at length about this issue with applicants’ attorneys on numerous cases.  The position is almost always the same as the reasoning in this Court of Appeal decision: just because he lied or “exaggerated” his limitations doesn’t mean he wasn’t actually injured.

Well, here’s the problem with this line of thinking.  QME examinations are not conducted in silence.  The QME and the PTP ask questions, inquire as to subjective complaints, and assume cooperation and genuine effort during the exam.  Unless they are performing an autopsy, the doctor has to rely on the information provided by the patient/applicant.

Once you have been established as a liar – particularly when there is a conviction on the books – the credibility is shot.  Just about any physical exam or diagnosis is going to rely at least in part on the credibility of the patient, especially when it’s something like losing almost all use of the hand, rather than an objectively verifiable injury (such as a fracture or amputation).

A conviction for fraud should carry more weight in California than this case suggests it does.

So, while crime might not pay, in workers’ comp, it pays a little.