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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.
 
Her injury was “real.” Her work had not been a passive stage on which the plate, screws and scars had been imagined.
 
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.
 
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?
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.
 
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.
 
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.
 
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.
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.
 
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.
 
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.
 
My favorite part about being an applicants’ attorney is the exposure to human behavior it provides.
 
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.
   
 
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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