In October 2018, while being counseled about his job performance and under the impression that he was going to be fired, the applicant reported to his supervisor that he had been injured at work on April 9, 2018 (back) and October 26, 2018 (back and leg).  The applicant began receiving treatment for the October 26, 2018 injury.  The April 9, 2018 injury was denied for lack of factual and medical evidence.  The matter was referred to DGC for defense handling.

After her initial review of the file and speaking with an employer witness, Clara Forman knew that the matter was ripe for litigating injury AOE/COE.  The applicant reported he injured his back on April 9, 2018 while helping to move large pipes with his supervisor and a co-worker.  The supervisor denied this incident took place.  The applicant alleged that the second injury occurred while walking down some stairs because he continued to have back pain from the first injury and as a result his leg gave out on him.  Clara’s plan was to prove that the first injury did not occur and that the applicant was not a credible witness, which ought to result in the judge concluding that the second injury did not occur either.

Shortly after the claims were reported, the insurer had assigned an investigator to interview (1) the applicant, who was not yet represented, (2) the applicant’s brother, who was a foreman with the employer, (3) the employee who was allegedly present on April 9, 2018, and (4) the supervisor.   Additionally, surveillance was conducted and captured the applicant performing roof work on his trailer.

After applicant became represented, Clara took his deposition.  Among other things, he testified that he had not done any roof repairs to his trailer during the time in question.

Clara filed a DOR for a priority conference, which was continued, over her objection, to allow applicant’s attorney to thoroughly review the surveillance footage and the deposition transcript.

At the continued priority conference, the applicant dismissed his attorney and said he would represent himself.  The case was continued to an MSC to allow the applicant to obtain his file from his former attorney.

At the MSC, the applicant stated that he had audio evidence that would prove his injuries and listed numerous audios as trial exhibits, to which Clara objected.  The applicant did not serve any exhibits prior to the trial.

On the first day of trial, applicant said that the audio evidence was on three different phones.  After discussing the admissibility of the audio exhibits, the trial judge stated she was going to allow the applicant some leeway and continue the trial so he could serve the audio.  To avoid the continuance, Clara waived service of the audio and requested the opportunity to review the audio with the applicant and the Information and Assistance Officer. During the review, it became apparent the applicant had recorded the discussions without the knowledge of the other participants.  After further discussion with the judge, she ruled that the audio exhibits were inadmissible because he had violated California law since the speakers were not aware they were being recorded.

The applicant and his witness, a former co-worker, testified.  Clara impeached the applicant with his deposition testimony on several points.  The applicant’s witness made statements that were inconsistent with what he previously stated to the investigator.   Given these contradictions, defendant could call the investigator as an impeachment witness.

On the second day of trial, the applicant’s two witnesses – his brother, who had been a foreman with the employer, and his former co-worker – testified.  The defense witnesses who testified were the supervisor and the two investigators.  One investigator testified about the surveillance.  The other one testified about his interviews of the applicant, the applicant’s brother, and the applicant’s former co-worker.  The defense witnesses’ testimonies significantly and credibly contradicted the testimonies of the applicant and his witnesses.

The trial judge issued Findings and Orders that applicant take nothing because he did not meet his burden of proving industrial injury.  After analyzing the evidence in detail, she concluded that there was no credible evidence to show that applicant sustained an injury on either April 9, 2018 or October 26, 2018.

You can read redacted versions of the Minutes of Hearing, Summary of Evidence, and Order of Consolidation, Minutes of Hearing and Summary of Evidence and Findings and Order below.

Minutes of Hearing, Summary of Evidence, and Order of Consolidation: Click here

Minutes of Hearing and Summary of Evidence: Click here

Findings and Order and Opinion on Decision: Click here

Media Contacts:
Company Name:  Dietz, Gilmor & Chazen, APC
Full Name:  David Jankosky, DGC Client Services (818-654-9911, Ex. 1231)
Email Address:  djankosky@dgcattorneys.com

On November 9, 2018, a co-defendant issued four checks totaling $1,299,634.65 to an insurance carrier client of Devin Andriesen for reimbursement of 87% of the TD, PD, medical treatment, and C&R payments. The reimbursement was the final step in Devin’s successful prosecution of the contribution claim, litigation that was unusually protracted due to the co-defendant’s efforts to evade liability.

Defending by way of Substitution of Attorneys to DGC, Devin inherited responsibility for a client solely elected against under L.C. §5500.5 within the final year of injurious exposure, but with, as Devin would unwaveringly maintain, only 13% of the total liability for a case with multiple injuries, along with extremely complex and ongoing medical symptoms, diagnoses, and surgical treatments that would continue for years after the claim was filed.

A construction worker and heavy equipment operator, the claimant’s primary skill was operating asphalt paving rollers. She did so for over seventeen years in which numerous injuries were claimed and treated.  A specific injury occurrence example was when claimant absorbed a “…6 to 8 inch drop…” while driving a roller on uneven ground.  However, the pertinent claim here was the cumulative trauma claim filed for May 1990 – May 1991, in which injuries claimed included the cervical spine, bilateral shoulders, bilateral elbows and epicondylitis, lumbar spine, and bilateral carpal tunnel syndrome.

Physician findings included thoracic outlet syndrome, RSD, severe daily headaches, Dupuytren’s disease, loss of mobility in fingers, and vertigo, and the claimant’s treatment included Botox injections and 12 surgical procedures, including discectomies, cervical fusions, and carpal tunnel releases.

Presented with an obstinate co-defendant, and unable to mandate (because of the L.C. §5500.5 election) that co-defendant negotiate apportioning benefits up front, Devin settled the case-in-chief by way of C&R in 2015, and then focused on obtaining recovery from the co-defendant, which had 87% of the coverage for the CT period, but offered only $200,000 for contribution after multiple hearings.

Devin’s insurer’s client did employ the claimant from 1979 to 1986, and again from 1989 to 1991 (with the insurer covering only a small portion of the latter time).   While this prior employment history may have been one of a few ostensible reasons for co-defendant’s obstinacy, it was not a good one.  L.C. §5500.5 makes clear not only the last year of injurious exposure tenet but also the principle that supplemental proceedings shall not restrict the contribution rights of parties elected against.

Faced with the claimant’s death in 2016, yet armed with the skill to successfully tie all case-relevant body parts, medical diagnoses, heavily fragmented treatment, and numerous med-legal evaluations back to the 1990-1991 period of injurious exposure, year-by-year, Devin’s arbitration brief in essence rebutted co-defendant’s defense based on a QME opinion which stated that only bilateral carpal tunnel syndrome was industrial for the CT period.  Further, the co-defendant’s QME provided his opinion without ever having evaluated the claimant or even addressing the claimant’s deposition testimony regarding complaints to all body parts dating back to 1991, despite having been provided all records.

In fact, with the other QME and med-legal opinions incorporating all case-relative body parts as cumulatively or consequentially injured, neurologist opinions included, Devin’s medical timeline showed that co-defendant thus “Conveniently…failed to pursue obtaining another opinion for nearly seven years.”  The arbitrator’s report and recommendation itself echoes this point, stating that the co-defendant “…appears to have resigned themselves to their apparent situation” (see the attached).

In sum and also attached, the WCAB’s Opinion and Order Denying Petition for Reconsideration adopted and incorporated the arbitrator’s report in its July 2018 decision, which did not lead to any further challenges for Devin to address in advance of his client’s November 2018 recovery of $1,299,634.65 in contribution.

Payment Demand Letter from DGC Defense Attorney, Devin Andriesen: Click here

Arbitration Brief by DGC Defense Attorney, Devin Andriesen: Click here

Arbitrator Response to Co-Defendant Petition for Reconsideration: Click here

WCAB Opinion and Order Denying Petition for Reconsideration: Click here

WCAB Stipulations to Resolve Claims for Contribution: Click here