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California Workers’ Comp.; What is the Felony?

Anaheim, CA |

I found this statement in the “FEE DISCLOSURE STATEMENT” of the WCAB:
“Any person who makes or causes to be made any knowingly false or fraudulent
material statement or material representation for the purpose of obtaining or
denying worker' compensation benefits or payments is guilty of a felony.”

My WCJ said I only objected to the Apportionment Before the DEU Rating; in the; REPORT AND RECOMMENDATION OF WORKERS' COMPENSATION JUDGE; my WCJ states: “Applicant is correct that she presented written argument contesting apportionment in this matter prior to the matter going to the Disability Evaluation Unit for rating. However, once the formal rating was issued Applicant did not object to that formal rating.” But in fact I filed 2 Objections after the DEU Rating; but the WCJ did not send them in to the WCAB for my Recon. To prove I filed the Objections; I copied the Presiding Judge.

My WCJ also misleads the WCAB in her F&A. In the WCJ’s F&A she states that I never objected: “There having been neither objection to the recommended rating nor a timely request for cross-examination of the Disability Evaluation Specialist, in accordance with the rater’s recommendation, it is found that Applicant is entitled to a permanent disability award, after apportionment, of 75%”. These documents would have barred the WCJ from apportioning my 100% Claim. I plan to file a complaint with the Ethics Committee; what codes have been violated?

Attorney Answers 4

  1. Best answer

    The fee disclosure statement is required by Labor Code 4906, but it is really intended to apply to workers ("obtain") or employers/carriers ("deny"). The felony described would be insurance fraud, or perjury, or perhaps both.

    I glean from your question that you believe the WCJ has misrepresented the facts in the Report and Recommendation on Petition for Reconsideration. However, you need to understand some things about procedure.

    First, whether the documents were actually filed is not as obvious as you might think. Did you mail them or hand file them? Whether a document has been filed is best proven by its existence in the EAMS database, or by keeping a hand-stamped conformed copy at the time the document is filed. Copying the Presiding Judge has no legal effect, and any duplicate would likely just be discarded.

    Next, the WCAB Recon Unit has access to the EAMS filing system. Any documents that were filed before your recon are available for the WCAB to inspect, regardless of whether they were separately forwarded by the judge (which a judge would never do, by the way).

    Next, you may file a response to the WCJ's Report and Recommendation, highlighting any factual discrepancies.

    You may want to talk with an Information & Assistance Officer, or preferably an attorney, before accusing a judge of committing a felony.

  2. typically the presiding judge will take action and get involved if and only if what you say is accurate - make sure that you keep documentation of everything so that you have a valid paper trail

    we will not take any action on this case until we have a signed retainer agreement

  3. A felony is a crime punishable by more than one year incarceration. I'm not sure how this question relates to the rest of your post.

  4. WHAT CODES have been violated? NONE. The judge performed the duties of a judge, NOT for the 'purpose of obtaining or denying worker' compensation benefits'. A Petition for Reconsideration is copied to a judge but it addressed to the WCAB in Oakland, the 'body' reviewing the judge's work.

    IT IS NOT the judge's duty to deliver your communications anywhere. YOU deliver your communications to Oakland according to the rules... the judge just looks at your Petition and decides if it has any merit, and if not it all gets shipped up to Oakland for a ruling.

    If you don't know the procedure and failed to properly and timely file a formal pleading of Objection to DEU Rating, it is not the judge's fault.

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