The seventh time was not the charm for the claimant.  Between February 2014 and June 2018, she had been successful in obtaining three settlements of six workers’ compensation claims (five CTs and one specific) that she filed against the employer after being terminated upon the discovery that multiple Social Security numbers she was using were invalid. The settlements totaled $24,700.00.  Either before or after each settlement, she applied for work at a different employer location, using a variation of her name and a different SSN.

She succeeded in being hired at a fourth employer location in October 2017, but in May 2018, after about six months, she was terminated for cause.  Then in May 2019, she filed a post-termination CT claim, alleging injury to her right knee.  The claim was promptly denied on the grounds of being a post-termination claim and lacking supporting medical evidence.

In September 2019, the claims administrator asked Erin Ward-Dugan to substitute in and take over defending the claim.  After quickly completing discovery, she recommended taking the case to trial.  There did not appear to be substantial medical evidence to support a finding that the applicant had sustained an injury, and there was ample evidence for attacking the applicant’s credibility.

Trial took place on December 17, 2019.  The applicant’s attorney declined to call the applicant as a witness and proceed with direct examination, so Erin called her to the stand for cross-examination.  Erin proceeded with detailed questioning about her prior claims, including all of her various aliases and false Social Security numbers used to obtain employment, her numerous post-termination claims of injury to many of the same body parts, and the settlements obtained.  When questioned about the current CT injury claim, the applicant tried to change the injury to a specific.  She admitted that she did not seek medical treatment for over a year after her termination and did not tell her doctor about her injury history.  When asked questions about her work for a subsequent employer (essentially the same type of work she did for the defendant), the claimant invoked the Fifth Amendment.

Just five weeks later, the WCJ issued a Findings and Order that claimant take nothing.  There was no substantial evidence to support a finding of injury.  The limited medical reports that claimant relied on were deficient since the claimant had not disclosed her multiple prior alleged injuries, claim history, or subsequent job with a different employer to the doctor.  Although the WCJ did not directly comment on the claimant’s credibility, there is little doubt that the documentary evidence that Erin introduced and the damaging testimony that she elicited on cross-examination rendered the claimant a poor witness on her own behalf.

The applicant did not appeal the Findings and Order.  The case has been referred to the SIU for additional fraud investigation.

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

 

Minutes of Hearing and Summary of Evidence: Click here

Findings of Fact and Findings And Order: Click here

 

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

On 01/29/16, Applicant suffered burns to his feet while handling caustic materials at work.  The injury was accepted, and benefits were provided.  Ultimately, Applicant was evaluated by a PQME in podiatry.

On 12/27/17, Applicant sustained injuries to his left hand, fingers, and chest while using a table saw at home.  He claimed that this was a compensable consequence on the theory that the burns to his feet caused him to lose balance and suffer further injury.  On 6/07/18, Applicant fell in the street while walking home and sustained a back injury, a head injury, a broken orbital bone, and loss of consciousness.  He later claimed that this fall was another compensable consequence, alleging that the burns to his feet caused him to lose his balance and fall.   

Applicant’s counsel amended the claim to add the left hand, left fingers, chest, head, left eye, left orbital bone, and back.  Jason Buscaino, an experienced California workers’ compensation defense attorney, believed the newly alleged compensable consequence injuries were questionable, particularly Applicant’s fall in the street, as Applicant had originally reported to his PTP that he experienced non-industrial dizziness, which caused him to fall.  Interestingly, the PTP’s next report changed the narrative, indicating that Applicant lost his balance, causing him to fall and then feel dizzy.

As part of a diligent California workers’ compensation defense investigation of the newly alleged compensable consequence injuries, Jason secured records from Applicant’s private medical providers.  These medical records, particularly those from the emergency room visits, did not mention anything about the industrial burns to his feet but did detail different factual scenarios:             

As to the table saw incident, the records documented that the table saw propelled a wooden plank backwards toward the Applicant at a high rate of speed, causing injury; and as to the fall, the records documented that Applicant suffered a syncope episode, causing his collapse in the middle of the street, resulting in injuries. 

Jason filed a DOR for an MSC to either settle the case or set it for trial.  At the MSC, Applicant’s counsel sought an order allowing additional QME panels in orthopedic surgery, neurology, and ophthalmology.  Jason successfully argued that before allowing the three additional QME panels, the WCAB needed to first make the factual determination as to whether the subsequent incidents were related to the original injury.  The MSC judge agreed and allowed the case to be set for trial. 

At trial, Applicant and his wife maintained that the industrial burns to his feet caused him to lose his footing and slip, resulting in both the table saw incident and the fall.  When Jason cross-examined them, he used the emergency room records in a successful attack on the credibility of their testimonies.

The WCJ found permanent disability from the admitted injury to Applicant’s feet based on the podiatry PQME.  The WCJ also found that Applicant did not sustain injury to his left eye, left orbital bone, left hand, left middle fingers, left ribcage, and back as a compensable consequence. 

Applicant filed a petition for reconsideration.   In this instance, given their high level of confidence in the position taken at trial and the strength of the WCJ’s decision, no answer was filed.  The WCAB denied Applicant’s Petition for Reconsideration.  With the trial results upheld on appeal, Jason successfully shut down this claim and avoided at least three additional PQMEs, which would have prolonged the litigation, and potential additional exposure for benefits.

You can read redacted versions of the Report and Recommendation on Petition for Reconsideration, Opinion and Order Denying Petition for Reconsideration and Findings and Award and Opinion on Decision below.

 

Report and Recommendation on Petition for Reconsideration: Click here

Opinion and Order Denying Petition for Reconsideration: Click here

Findings and Award and Opinion on Decision: Click here

 

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

Effective as of Monday, January 27, 2020 our new corporate office mailing address is 9665 Granite Ridge Drive, Suite 110, San Diego, CA 92123.
Please note all phone and fax numbers will remain the same.

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