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

Faced with a CT injury claim based on an orthopedic AME report and CIGA’S attempt to shift liability to his legally uninsured client, Robert Diaz de Leon went to trial on the issues of injury AOE/COE as to the applicant and “other insurance” as to CIGA.  At stake was significant exposure: to the applicant for a minimum of 28% permanent disability ($26,212) after multiple shoulder surgeries and continuing/future medical treatment; to CIGA for reimbursement of at least $66,881; and to various lien claimants, including EDD, whose lien was about $12,012.00.

Robert was armed with a PQME report by an orthopedist who found no injury caused by the applicant’s concurrent part-time employment with the client, the applicant’s testimony (from CIGA’s two depositions and the deposition taken by Robert) to the effect that she did not have any injury or problems from her job duties with the client, and legal arguments supporting the position that the client was not “other insurance” for CIGA’s purposes.  The WCJ found that the PQME report was better reasoned and more persuasive than the AME’s report (the applicant and CIGA were the parties to the AME in the three specific injury claims against the other employer).  This medical evidence and the applicant’s trial testimony, which was consistent with her deposition testimony, led to the WCJ’s finding that no CT injury resulted from the applicant’s employment with the client.

A “take nothing” was issued. In addition, the WCJ agreed with Robert’s legal argument that the client did not qualify as “other insurance” and found that the legally uninsured employer was not “other insurance” under Insurance Code sec. 1063.1(c)(9).  Therefore, CIGA was not entitled to shift liability to, or obtain reimbursement from, the client.

Neither the applicant nor CIGA filed a petition for reconsideration.

You can read redacted versions of the Amended Minutes of Hearing and Summary of Evidence and Findings of Fact and Opinion on Decision below.

Amended Minutes of Hearing and Summary of Evidence:  Click here

Findings of Fact 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 May 29, 2019, DGC attorney Jonathan Freeman obtained a take-nothing decision from the Oakland WCAB.

The claimed injury was filed as a cumulative trauma by an applicant at a tire store, who claimed that he suffered a knee and back injury.  Defendant had no medicals to support the claim and immediately referred the case to DGC because they suspected the motive for the claim was that a co-worker (the applicant’s cousin) at the insured had recently received a substantial settlement for a workers’ compensation case.  The applicant failed to attend a scheduled MPN appointment to assess his medical condition during the delay period.  After deposition of the applicant revealed that he had never missed any time from work and continued to be employed by the insured in a full-duty capacity, Jonathan Freeman recommended denial based on the lack of a date of injury under Labor Code Sections 5412 and 5500.5(a).

The PQME evaluated the applicant and provided 0% impairment under DRE I, but did state that the applicant’s back problems were due to a combination of repetitive work and degenerative issues.  Applicant demanded stipulations at 0% PD with a lifetime medical award, which defendants refused on the grounds that without compensable permanent disability or compensable temporary disability there could be no date of injury under Labor Code 5412, and without a last day worked there could not be a “last date” upon which the employee was harmfully exposed under Labor Code 5500.5(a).   Jonathan next pushed the case to hearing with a DOR and obtained favorable stipulations when setting the case for trial, including the fact that the case rated 0% and that applicant had missed no time from work.

The matter was submitted for trial on May 29, 2019.  The WCJ ordered that the applicant take nothing.  The decision has not been appealed and is therefore final.

You can read a redacted version of the WCJ’s Findings, Order, and Opinion on Decision below.

WCJ’s Findings and Order and Opinion on Decision:  Click here

Media Contact:
David Jankosky, Director of Client Services, DGC Attorneys
djankosky@dgcattorneys.com / (818) 654-9911, Ex. 1231