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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.