POLICE OFFICER
ACQUITTED OF CRIMINAL CHARGES
ALLEGING WORKERS COMPENSATION FRAUD
Antioch Police Officer Tim Brown and his attorney, Carroll, Burdick
& McDonough (CBM) partner Mike Rains recently prevailed in a
criminal trial of a police officer charged with two counts of workers
compensation fraud, and a third count of perjury. Here is an
account of this interesting case:
Brown joined the police department SWAT team in 1991 and had a
reputation as a very proactive, capable, patrol officer. He was a
model of excellent health - at least until June 1994, when he attempted
to lift a 300 pound prisoner and felt pain in his back. When the
pain did not subside in several days, Brown and his supervisor reported
the injury, triggering the opening of a workers compensation claim filed
by the city's workers compensation/risk management adjuster.
Pursuant to the recommendation of the city's doctor, Brown remained off
work for several weeks. He then returned to his normal patrol
assignment. On his first day back, he became involved in a violent
struggle with a suspect. Brown reinjured his back in the struggle
and went through several months of physical therapy, pain medication,
and acupuncture, working 'light duty' part of the time, and remaining
off work on "4850" for a number of weeks.
Brown returned to an assignment in the Community Policing Bureau in
November 1994 and worked without incident until July 1995, when he
experienced renewed back pain. Although not certain, he attributed
the back pain to having been involved in combative arrest situations
with two separate suspects a few days apart. He was put off duty
again by the city's physician, a decision which was concurred by an
orthopedic surgeon who he had been seeing for additional advice and
treatment.
He returned to 'light duty' in early August. While working 'light
duty' Brown notified his immediate supervisor that he wanted to readjust
his hours on a particular Saturday because he was having a cement truck
deliver a large load of cement for a concrete patio and walkway.
Although he had been working on and off on the patio project for several
years, his back injury and finances had slowed the progress. Most
recently, he had enlisted the help of friends for the pouring of
cement. He had also arranged to have four individuals present on
Saturday morning to wheelbarrow cement from the truck to the patio site,
and had arranged two other individuals to form, smooth, and finish the
concrete. He planned to watch the volunteers, and then go to work,
in the early afternoon.
On Friday night the volunteers started canceling. When Brown
assessed the situation late Friday night, it looked like he had only one
(or possibly two) individuals who would be able to do the wheelbarrow
work.
When Brown arose Saturday morning, the prospect of help with
wheelbarrows looked bleak. The cement truck was on its way, and he
feared that he was going to have to do more work than anticipated, he
took a Vicodin tablet which had been prescribed for back pain. When the
cement truck arrived, Brown and his cousin began pushing wheelbarrows of
cement from the cement truck to the concrete patio and walkway.
Unbeknownst to Tim, a private investigator retained by the city's
workers compensation/risk management adjuster was videotaping his
activity from a surveillance van.
The video showed him pushing 37 loads of cement from the truck to a
location where the wheelbarrow was dumped. The video did not show
the number of trips made by other individuals because the private
investigator taking the video was turning it on and off only to show the
activity of Brown. To that extent, when the case got to trial, the
jury was given a misleading picture of the amount of work Brown had done
compared to the work done by others.
After the patio and walkway had been poured and smoothed, Brown went to
work as planned. However, due to feeling the side effects of the
Vicodin, he asked his supervisor for several hours off on vacation,
which was approved.
After the videotape, the lawyers retained by the insurance adjuster
canceled an upcoming settlement conference and hastily scheduled Brown's
deposition. Notes maintained by the insurance adjuster and
correspondence written by the lawyers which were obtained during the
discovery process indicated that the lawyer's intent in scheduling the
deposition was to "let him (Brown) perjure himself.
Correspondence from the lawyers indicated that they were in the process
of "furthering a criminal fraud case" before they took Brown's
deposition, rather than merely attempting to elicit from him possible
inconsistencies between his back injury limitations and the work that he
performed on his patio.
Several weeks later, Brown's deposition was taken by the risk management
attorney. The deposition transcript was 150 pages long. Most
of the deposition transcript was devoted to the injuries and the impact
those injuries had on Brown's personal and professional activities,
including his participation in the SWAT team. On several different
occasions he was asked whether or not he could still do the job of a
police officer and still be on the SWAT team as a result of his back
injury. He repeatedly and consistently said he could do both.
Of the 150 page transcript, only about ten pages were devoted to Brown's
work on the concrete patio. He actually "volunteered" in
the deposition that he had recently put a patio in at his house.
He "volunteered" the fact that the cement truck brought 8
yards of cement for the project. His testimony about the amount of
work he did, however, was confused and ambiguous. He said that he
was able to "push" wheelbarrows containing cement but not to
"lift" them. The attorney, either "asleep at the
switch" or by design, simply failed to ask what he meant when he
said he could not "lift" wheelbarrows of cement. At one
point in the deposition he was asked how many wheelbarrows he had pushed
during the course of the morning. He said, "a couple
Ensuing testimony established that he thought he was being asked how
many different wheelbarrows he had pushed during the course of the
morning, and not how many wheelbarrows containing cement he had pushed.
Rains' defense at the criminal trial involved a number of significant
issues which all peace officers should be aware of. First, the
prosecutor assigned to the case was on special assignment to a worker's
compensation fraud "enhanced investigation and prosecution
unit" which receives specialized funding (paid for by insurers
throughout the state) for enhanced investigation and prosecution of
workers compensation fraud cases. A number of district attorneys
offices have applied for and received specialized funding for these
units, and prosecution of workers compensation fraud cases is expected
to be more aggressive as a result.
Based upon a recent California Supreme Court decision, Rains reasoned
that the district attorney had financial incentives for prosecuting
workers compensation fraud cases, and that it's financial incentive
created an impermissible conflict of interest requiring its refusal from
prosecuting the case. His motion to disqualify the district
attorney was denied.
Prior to trial, Rains also moved to suppress the deposition
testimony. The motion, if granted, would have likely resulted in
dismissal of all charges. The basis of the motion was the fact
that the management of the Antioch Police Department had been actively
involved in the investigation and decisions relating to Brown's workers
compensation case, including discussions concerning the taking of the
subrosa videotape of the cement work and the scheduling of Brown's
deposition. Indeed, notes obtained from the workers compensation
adjuster indicated a series of communications between the adjuster and
police department management. During these conversations the
police department had made recommendations concerning surveillance,
private investigators to be utilized, and even disclosed that police
department officials "ran" license plates of vehicles parked
in Brown's driveway. At the hearing on the pre-trial motion, it
was disclosed that, the Monday after the videotape was made, the police
chief and a captain visited the offices of risk management personally
and viewed the videotape. On that date, correspondence maintained
by the insurance adjuster indicated that the city was going to contact
their "labor counsel" and advise the risk management adjuster
of how the department wished to proceed.
In the pretrial motion, the defense argued that the department had
"engineered" the investigation that, with the advice and
concurrence of its counsel, instead of "noticing" Brown's
internal affairs interrogation for suspected misconduct, had allowed the
workers compensation attorneys to step in and take Brown's
deposition. By doing this, the workers compensation attorneys were
able to avoid the requirements which would be placed on the police
department to advise Brown of the "nature of the
investigation" (Government Code section 3303(c)) and to order him
to talk under the threat of punitive action (Lybarger v. City of Los
Angeles, 40 Cal. 3d822), which would have made any statements be made
inadmissible in a criminal proceeding. Although the judge hearing
the pretrial motion treated the motion seriously, he concluded that
there had not been enough showing of "complicity" between
police department management and the insurance adjuster and their
lawyers to grant the motion.
Thereafter, jury selection started in the case and proceeded to
trial. The prosecution's case was highlighted by the showing of
the videotape made by the private investigator. Jurors interviewed
after the trial indicated that they did not like the fact that the
private investigator had only "selectively" turned on the
videotape showing the work done by Tim, but completely obliterating most
of the work done by others.
The defense case featured the testimony of Brown's orthopedic surgeon,
who testified that he had reviewed the videotape of the work performed
by Brown (at the request of the risk management insurance
adjuster). He determined that the work performed in the videotape
was not inconsistent with Brown's back injury and was not inconsistent
with 'light duty' status on the day the work was performed. The doctor
reasoned that Brown's ability to control movement and the lighter loads
of cement he carried in his wheelbarrow (which was testified to by
Brown, his cousin, and an employee of the cement company) was a far cry
from Brown being involved in a violent fight where no such control over
movement and exertion would be possible.
The jury was impressed by Brown's deposition testimony, in which he
continually stressed his commitment to doing police work and his
insistence that his back pain did not prevent him from continuing with
his chosen profession. Similarly, the jury was impressed with his
continued participation on the SWAT team even following his back injury,
and the fact that he would work out with weights at the police
department even while assigned to light duty. The jury reasoned
that this type of activity certainly did not indicate that Brown was
trying to "hide" his ability to involve himself in active
situations despite recurring back pain.
Jury deliberations lasted for a day and a half. The jury acquitted
Brown of two felony counts of worker's compensation fraud (California
Insurance Code sections 1871(a)(1) and 1871(a)(2)). The jury
deliberated longest on the perjury count. The District Attorney
alleged five different statements made by Brown during the workers
compensation deposition which were allegedly perjurious. The jury
concluded unanimously that Brown had not committed perjury on four of
the five statements charged in count three; the jury "hung"
eleven to one in favor of acquittal on a fifth statement (Brown's
statement that he pushed "a couple" of wheelbarrows during the
day).
Tim Brown was not a likely "candidate" to become a defendant
in a workers compensation fraud case. He loved his job and had no
desire to leave it under any circumstances or for any reason. He
participated in a series of events, some of which were under Brown's
control and some of which were not, which resulted in personal and
professional catastrophe.
The case involved a host of complex, legal and factual issues which may
provide guidance to employers and employees alike. Employers
(particularly peace officer employers) should not become actively
involved in workers compensation fraud investigations of their own
employees. Rather, they should allow the insurance adjusters and
their investigators or attorneys to handle all details of such
investigations, or run the "risk" of violating their
employees' rights, which arise when officers are under investigation of
possible misconduct.
Peace officers who have experienced injuries at work should be aware of
specially funded prosecution units for workers compensation fraud
cases. Because of such funding, we anticipate that the number of
prosecutions initiated will increase, and the prosecutions will be far
more aggressive.
In the final analysis, the common goal for all should be to discourage
and to deter false workers compensation claims and the benefits paid
thereon, but to ensure that persons who sustain legitimate job related
injuries which affect their ability to do their job - like Tim Brown -
receive the benefits to which they are entitled under the law, and do
not find themselves at the mercy of penny pinching insurance adjusters
and sleazy attorneys who are less interested in seeking the truth than
in furthering criminal fraud cases against unsuspecting employees.
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