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Fraud and the Holy Ghost
A “war story” from the trenches
of workers’
compensation
practice
By Bob Levin, Esq.
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Shortly before noon
on July 24, 2000, a fifty-four-year-old LVN, whom I shall call
Marcella Duchamp, mis-stepped descending a flight of stairs,
fracturing her left ankle in three places. Surgical repair – one
plate, eight screws – was required. Several painful months
later, a second operation removed the screws. In short, Duchamp’s
injury was “real.” It was verifiable by objective
proof. (She could show you the screws and scars.) Her work had
not been a passive stage on which they had been imagined.
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| Her injury was “real.” Her
work had not been a passive stage on which the plate, screws and
scars had been imagined. |
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In December 2001, Duchamp told an
Agreed Medical Evaluator that she could only walk half a block and
stand no longer than five minutes. He, discounting her complaints
somewhat, concluded her disability limited her to spending half her
time standing or walking and the rest sitting, divided equally throughout
the day.
Coldheart Insurance (not its real name) placed Duchamp under
surveillance. I do not know what about this elderly woman with her
fractured ankle roused such a degree of mistrust that the claims
examiner felt compelled to take protective action on behalf of her
company’s stockholders. But her investigator sat outside Duchamp’s
apartment building for three days. Nothing happened until the fourth,
Sunday, when Duchamp and her sister exited. They got into a car.
They drove to a church. And there the investigator filmed Duchamp
on her feet for an hour, singing, dancing, shaking her tambourine.
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| What about this elderly woman
with her fractured ankle roused such a degree of mistrust that the
claims examiner felt compelled to have her placed under surveillance? |
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After reviewing the video, the AME
concluded that Duchamp could work half the time on her feet, standing
or walking, and half the time sitting. (He added that she could lift
up to 50 pounds.) The adjustor was satisfied. She offered to stipulate
to an award of compensation based on such a disability. I recommended
that to Duchamp. She refused – from what precise mix of angers
and resentments and sense of entitlement, I do not know. (I am often
as mystified by the actions of my clients as I am by those of claims
examiners.) But she wanted her day in court. (She could, she continued
to insist, only stand for five minutes.) I did not care. Neither
did the defense attorney. Let her tell her story, we thought. It
would take, what, an hour. Then the judge could follow the AME.
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She
wanted her day in court. Let her tell her story, we thought. It
would take, what, an hour. Then the judge could follow the AME.
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Duchamp’s testimony was simple and, I thought, charming.
She explained that church was important to her. Before her injury,
she attended three or four times a week. The day she was filmed
was the first time she had been back since, and she had been so
excited she had been “hit” by the Holy Spirit. When
the Spirit hits, she said, “It goes from your head to your
feet and you feel like nothing can touch you. I had no pain. It
felt like I could fly.” But when she got home, her ankle
was so swollen her sister had to cut her shoe off.
The judge did
not find Duchamp charming. He felt she had made false statements
in order to gain permanent disability compensation. As a result,
he awarded her none. Duchamp, in my view, a fifty-four-year-old
woman sharing an apartment with a sister and needing church three
times a week for joy, had sought relief from all of which the years
had robbed her. The judge’s view compelled him to call her
a thief.
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The judge did not find Duchamp
charming. He felt she had made false statements in order to gain
permanent disability compensation. He awarded her none.
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I have represented injured workers for forty years. I have appeared
before judges who were afternoon drunks and intermittent psychotics
and before whom it would have been malpractice to try a heart or
psych stress case. And I have been before those who have been kind
and patient and one who, at 5:30 PM, retrieved from her office
yogurt and a banana for my sobbing client. (I should add that,
by that point in the proceedings, my client’s lamentations
had already coaxed the defense attorney into giving her $10 so
she could free her car from the parking garage. Since one of her
wails had been in opposition to my request for a fee, I had been
more inclined to push her under the F bus.) It must be difficult
to be a judge. I have not known on occasion whether to believe
a client or to believe the witness who testified the two-by-four
landed nowhere near him. But I have only to advocate. I do not
have to, perhaps, cast him deeper into Hell.
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I have not known on occasion
whether to believe a client or to believe the witness who testified
against my client. But I have only to advocate.
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My favorite part about being an applicants’ attorney
is the exposure to human behavior it provides. I feel privileged
to view and hear and absorb my clients’ adventures, dramas,
spiritual possessions – holy and otherwise – that move
them through their days. I think workers’ comp is a good system
in which to participate if you enjoy people – if they interest
or amuse or stimulate your thoughts. (It also helps if you can smell
the roses even in the moments that they drive you to thoughts of
homicide via public transportation.) But if you are not tolerant
of people’s foibles – if you are unable to receive their
fibs or over-reaches or disputations with a wink, a nod, a “Hey,
we’re all in this together” – it must be a radically
foreign land I would not care to walk.
Thinking back on my career,
I recall the PG&E attorney who, having heard my client remark
in informal banter that he’d sold homemade fishing lures through
the mail while on temporary total disability, said, “I’m
going to forget we had this conversation.” I recall the judge
who’d viewed the films of my client, whom all medical evaluators
had precluded from work as a carpenter, working as a carpenter. (That
genius had aroused suspicions by telling his voc. rehab. counselor
he could only meet him after 4:30 PM.) “They warned me I would
ruin my knees,” he’d said, “but I had a family
to support,” and the judge had given him the recommended award.
(The defense attorney, twenty-plus years later, still grumbles to
me in the hall about that one.) I concede I am as wishy – and
perhaps even washier – a liberal than most, but these are individuals
whose consciousnesses I wished more fully fueled our system.
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My favorite part about being
an applicants’ attorney is the exposure to human behavior it
provides.
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So I reconned.
Let me say up-front, I am not a top flight attorney.
I have often failed to research an issue until circumstances dumped
it, reeking, in my lap. More times than I care to remember, for good
and ill, what I had assumed to be true when I began this research
had proved false by the time I ended. I have had my days walking
into court thinking, “Gee, someone in this room sure doesn’t
know the law,” and learned the judge believed that person was
me.
My first argument was that since Coldheart had not plead fraud
as an affirmative defense, the judge should not have considered it.
(My lack of confidence in this argument was reinforced by Coldheart’s
attorney not bothering to answer it.) My second, that the judge’s
findings were not supported by substantial evidence was a lot of
fun, since it allowed me to cite Corinthians 12:9 on the healing
powers of the Hold Spirit – “Distinguish that, sucker!” I
thought – as well as a slew of Googled-up, peer-reviewed studies
documenting the benefits of the Placebo Effect. (My opposition responded
with a case denying a faith healer’s bill amounted to a reasonably
incurred medical expense.)
But my third argument resulted from one of those golden “I’ll
be a monkey’s uncle” moments that the law often provides
me. For when I’d read past Ins.
C. sect. 1871.4(a)(1), which
criminalized the making of false statements in order to gain workers’ comp.
benefits, I’d reached 1871.5,
which barred anyone convicted of violating that statute from recovering
any portion of what those statements had sought; and the only case
interpreting it (Adeco
v. WCAB (Mendez) 66 CCC 143) said that hammer only fell when
there had been an actual conviction. Duchamp, I noted, had not even
been charged.
The judge was as surprised as I. “Evidently,” he wrote,
exhibiting a sense of humor – albeit a black one – which
surprised me, “an injured worker can lie about her disability
because, unless there is a criminal prosecution, she has nothing
to lose by trying. The worst that can happen is that she will receive
the benefits supported by a preponderance of the evidence, which
is no worse than an honest claimant would.” He then gave Duchamp
the award the AME’s report afforded ($46,622.50). He added
that if I could get my client that “despite her false testimony
and the trial judge’s reaction to that falsehood,” I
deserved a 15% fee.
Finally, let me note that shortly after this decision, Duchamp, who
had returned to work as a receptionist in a seniors center (seated
her entire shift), was felled by a random gunshot and, while hospitalized,
suffered a stroke which left her totally disabled. Tolstoy was wise
enough to reflect in War and Peace that “Heaven only knows
where we are going, and heaven only knows what is happening to us…” With
that mystery behind all our sails, generosity may not be the worst
star by which to navigate our journeys.
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Bob Levin, a certified specialist for
30 years, is the author of five books, including "The
Pirates and the Mouse: Disney's War Against the Counterculture" and "Most
Outrageous: The Trials and Trespasses of Dwaine Tinsley and Chester
the Molester."
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