Grinberg: Fraud Conviction Does Not Bar WC Benefits
Thursday, November 16, 2017 | 432 | 0 | min read
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 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 Nov. 1, 2017: Ford v. WCAB. The Court of Appeal ruled that, despite a conviction for fraud, an injured worker who can establish compensable industrial injury independent of the fraud can be 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 agreed medical evaluator examined him in 2009, but the 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 lifted a washing machine into the back of the truck he was driving.
After the district attorney investigated, charges were filed and the applicant ultimately pleaded guilty to violating Insurance Code section 19781.4. He 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 workers' compensation judge relied on these conclusions to issue an award of 70% permanent disability, and the Workers' Compensation Appeals Board 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: Qualified medical examinations are not conducted in silence. The QME and the treating physician ask questions, inquire as to subjective complaints, and assume cooperation and genuine effort during the exam. Unless 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 — 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.
Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.