How Large A Portion?

Ouch! You have just suffered an injury while at work, and therefore may file a workers’ compensation claim.  You are in your mid-40’s and the injury is to your back.  You had noticed your back hurting a bit before the injury (probably from just getting older) but it was nowhere near the pain that you are now experiencing since the work injury.  Not to mention you had that old embarrassing lower back injury that you suffered during a picnic whiffleball game a few months ago, which you have since pretty much fully recovered from.  But what should these other aches and pains have to do with your new injury?  After all, if it wasn’t for the new work injury, you would still be able to work!

That is absolutely true.  However, when it comes time to determine the amount of Permanent Disability associated with your back injury, the doctor will attempt to determine just that:  how much of the disability was caused by the work injury and not other contributing factors.  This is called apportionment in workers’ compensation.

The doctor will attempt to apportion your Permanent Disability.  Using the example above, the doctor could determine that 80% of your disability is a result of your work injury, while 10% is due to “degenerative changes” (the back pain you noticed before) and 10% to your whiffleball-related injury.  This is when you say, “But that isn’t fair!  If it wasn’t for the work injury I wouldn’t have any noticeable disability!”  You’re right, but that is just the way the law and the labor code are written at the moment, and we’re stuck with it.

Insurance companies are also beginning to try to apportion an injured worker’s inability to get back to work after the injury to other factors besides the injury itself.  Again, you will correctly shout from the rooftop that “but if it wasn’t for my work injury I would still have my job!”  However, insurance companies are increasingly making the argument that not all of someone’s inability to find a job is related to the work injury.  They put forward that the economic climate is even preventing healthy people from finding work, that the injured worker may not be looking at all available jobs, that the job the injured worker was employed in is now more and more rare for anyone who is looking for work, injured or not.  Simply put, they are looking for other things to blame your inability to find a job on than your work-related injury.

Rodman J Martin

Surveillance videos are not the only thing to keep in mind these days in regards to your industrial injury.  When twittering and facebooking, be careful as to what you publish on your profile.  Remember these pages are public and insurance companies can simply type in your name and find you on the internet.

Below is an article from workcompcentral.com regarding a few cases where defense firms used twitter, facebook, and myspace to discover fraud.

Makes you think twice about what you publish on the internet.

Twitter About Mardi Gras Supports Petition for Removal: Top [02/12/10] By John Kamin, Legal Editor
johnkamin@workcompcentral.com

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“Linda Wenneker’s back injury apparently didn’t prevent her from enjoying Mardi Gras, which she allegedly described as a “bangin’, bared butts, boobalicious blast” on a Twitter post.

Defense attorneys say the former secretary also tweeted about the good time she had in Los Angeles for some “pre-Oscars festivities” a few weeks before asserting at trial that she was totally and permanently disabled by a workplace injury.

Although Wenneker’s claim has not been concluded, those online posts helped persuade the Workers’ Compensation Appeals Board to grant a petition for removal. The decision remanded the case so the workers’ compensation judge may consider whether to enter alleged online tweets, blogs, and surveillance into evidence.

The Dec. 17 panel decision by the WCAB appears to be one of the first to mention a social networking site by name. The full commission ordered the administrative law judge in the case to rescind his Oct. 23, 2009 order denying a petition by Wenneker’s employer, Contra Costa County, to augment the record.

Although the issue appears to be only now emerging before the full WCAB commission, online snooping is becoming an increasingly important tool in the workers’ compensation investigator’s arsenal. Defense Attorney Donald Barthel wrote in a professional column posted on WorkCompCentral late last month that Internet searches are an easy, effective, and inexpensive way of researching applicants’ backgrounds and verifying their credibility. (See “I Spy for Free” in the Professional Columns section.)

As reported in another article in today’s WorkCompCentral report, New York state skydiver Jacob Bancroft was sentenced on a workers’ compensation fraud charge Thursday after he was convicted on evidence that included a MySpace video of him hiking with a backpack. (See “Skydiver Convicted of Comp Fraud.”)

Contra Costa County sought to augment the record with Wenneker’s alleged online posts on Twitter and other sites about how she visited New Orleans for a “wicked and wild Mardi Gras vacation” and continued on to Los Angeles for the Academy Awards. These posts allegedly occurred in late February and March 2009. The trial in Wenneker’s workers’ comp claim was held on April 22, 2009.

The defense also cited evidence from a four-day trip to Disneyland in October 2009, where surveillance evidence showed Wenneker riding the Mulholland Madness roller coaster, the Space Mountain roller coaster, and the Star Tours ride. While the defense acknowledged that she used a scooter and wore a soft collar part of the time, she did not always do this and exhibited behavior different from the pain-related behavior documented at trial.

The WCAB described her testimony as follows:

“She testified that she does not leave her room for weeks at a time, does not want to see anyone, and does not socialize. She said that she does not drive much, because among other things, the vibration of the car affects her neck and upper extremities. She gets panic attacks around people or noise.”

News of the panel decision’s mention of Twitter and social networking sites did not surprise a private investigations expert who is unaffiliated with the case.

Dalene Bartholomew, vice president of the special investigations unit for Probe Information Services, said that the firm frequently uses social networking sites such as Twitter and Facebook to find information that it can use to obtain more substantive evidence.

“We don’t typically try to let the information we find online stand alone as evidence,” she said. “So we might find something saying that they posted their golf scores, or they posted the big fish they caught, or they posted that they are into cage fighting. Then we go out and try to find evidence of that, whether its documentation, or surveillance evidence, or witness statements, or maybe we subpoena their credit card statements. It’s a tool to point us in the right direction.”

Bartholomew explained that some of the firm’s more colorful investigations have found online evidence of claimants that enjoyed cage fighting, roller derby and political campaigning. These online tidbits allowed investigators to collect evidence proving that the injured workers were participating in those activities.

Probe’s investigators also sidestep workers’ use of various aliases to hide their online personalities by searching a number of databases to generate lists of all names affiliated with that person, Bartholomew said. Next, investigators peruse social networking sites for the injured worker, as well as the worker’s spouse, roommates, and associations or leagues who may have some new information to reveal. With applicants who are active in sports, this information often comes in the form of tournament photos that name the participants, she said.

However, Bartholomew acknowledged that investigators will always have to constantly adjust their search techniques, as social networking claimants become more savvy with their websites. Bartholomew also noted that the age of the person tends to play a large role in how much information might be available online.

In Wenneker’s case, the defense knew that Wenneker was computer-savvy, as the WCAB opinion noted that she had made several hundred posts on a blog titled LAStarz, which detailed celebrity news.

The defense tried to use the newly-discovered Twitter posts about Mardi Gras and the Disneyland surveillance to augment the record, but the workers’ compensation judge was not persuaded.

The judge denied the petitions to augment the record shortly after the Disneyland trip, determining that the defense did not demonstrate that it could not have obtained the new evidence prior to trial or before discovery closed. In other words, the judge ruled that the defense failed to show that it acted with “due diligence” prior to the closure of discovery.

The defense filed a petition for removal with the WCAB, and the workers’ compensation judge recommended a denial of the petition. The applicants’ attorney stated in a verified answer that “defendant has not explained why it could not have obtained surveillance evidence until 11 years after applicant’s most recent injury, 4 1/2 years after she became permanent and stationary, and seven months after discovery closed.”

Wenneker’s attorney also did not deny the Disneyland trip, but disagreed with the defense’s characterization of the trip, as she was on pain medication at the time and took frequent breaks to lay down.

The WCAB granted the petition and remanded, with instructions for the defense to give Wenneker’s attorney copies of the evidence. The panel decision also explained that a judge may admit post-trial surveillance evidence when it rebuts or impeaches an applicant’s trial testimony, as some injured workers “may let their guard down” after trial.

The commissioners clarified that “due diligence” does not require a party to make every possible effort to inquire into a claimant’s life. Instead, “due diligence” requires only a reasonable effort of inquiry, deputy commissioner Neil Sullivan wrote.

Commissioners Alfonso Moresi and James Cuneo concurred with Sullivan’s opinion.

The decision appears to be unique. A brief search of panel decisions from recent years revealed no other panel decisions that included the words, “blog, Facebook, Myspace,” and similar terminology.

The case title is Wenneker v. County of Contra Costa, et al., No. ADJ2954617,”