I tend to spend some of his evenings, long after the house and the world outside the front door have gone quiet, sipping Buffalo Trace and shaking my head in disbelief at some of the things that go in our beloved swamp of workers’ compensation.

Gregory Grinberg

For example, a Buttonwillow workers’ compensation claimant has been charged with insurance fraud after allegedly failing to disclose prior workers’ comp injuries. If the allegations are to be believed, then despite receiving a $90,000 settlement for a 2010 injury, the criminal defendant/workers' comp applicant failed to disclose the prior injury while pursuing a 2017 claim, but also denied any prior injuries in a deposition.

At this point, I would ask all the fraudsters and applicants' attorneys to stop reading for the day so I don’t give anyone ideas.

Now that it’s just us in the defense community, how often have you seen:

• Applications of adjudication filed with paragraph 8 of page 4 (the one that says “Other cases have been filed for industrial injuries by this worker as follows:” blank) only to later discover prior claims?
• The middle name and last name moved around or just slightly misspelled?
• The Social Security number field left blank?
• The date of birth digits off by one or in the wrong order?

Well, all of these tactics, of course, are quite deliberate and serve a particular purpose: to make it harder to discover past claims and past awards that might lead to a claim being denied or a payout being reduced.

Certainly, there are ways to discover these prior claims: ISO reports, creative EAMS searches and ol’ reliable: the deposition.

But Labor Code Section 4663(d) already provides that “[a]n employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.” Should defendants have to incur the cost of a deposition, which often enough is in the thousands of dollars, for a duty imposed by the Labor Code?

There’s no dispute that defendants are entitled to depose applicants and conduct discovery. But wouldn’t the right to discovery include questioning the applicant about past injuries and treatment? A review of the records will let the defense attorney know which questions to ask. Reviewing these records after the fact is hardly as effective as reviewing them before the deposition, but you’d have to know about them to do that.

California has a time-honored tradition of doing “reforms” every few years, with the interests being focused on satisfying the mandate of the Universal Attorney Employment Act, which dictates, of course, that workers’ compensation attorneys, in particular, are guaranteed gainful employment in litigating all the minutiae and red herrings that the workers’ comp system has to offer. 

Well, if I may be so bold, perhaps the next reform should put serious teeth into pleading requirements, including requiring accurate biographical information (name, date of birth, Social Security number) and perhaps some serious sanctions, such as dismissing the claim for misleading the parties by failing to disclose past workers’ compensation claims.

I know, I know — not very likely. But a blogger can dream, no?

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.