Exaggerated Complaints Can Be Viewed As Fraud

In a case of first impression a California appellate court has ruled that when a worker’s compensation applicant exaggerates about the level of pain the applicant is experiencing and knows this statement to be false, the applicant can be prosecuted for fraud.

The applicant sustained a work related injury to his back while working as a truck driver. The applicant received an award which included lifetime medical care. Seventeen year after the injury the applicant asked for in-home attendant care based on the request of a treating chiropractor. The carrier provided care and his girlfriend was designated his care giver.

Defendant eventually arranged an orthopedic exam, applicant showed up for the exam using a walker and told the physician he was experiencing severe pain and could not care for himself. The doctor could find no objective basis for the amount of pain the applicant was claiming. The carrier ceased paying for the in-home attendant care. The applicant asked for a hearing before the Worker’s Compensation Appeals Board (WCAB).

At the hearing the applicant described his level of pain and level of activity.  The girlfriend care giver described the level of care she provided with the use of a daily log she maintained.  Apparently the evidence showed significant discrepancies in the testimony.

The applicant was prosecuted for fraud under insurance Code section 1871.4  (a)(1). The applicant contended he did not violate this statute because his complaints about the level of pain were mere statements of opinion, rather than fact. The applicant contended that a conviction of fraud required misstatements or knowingly false statements of fact and not opinion.

The appellate court disagreed with the applicant. The court indicated that even if all the applicant did was exaggerate his complaints this was sufficient for a conviction.  The applicant was also prosecuted for perjury. The prosecution alleged the applicant made 13 false statements at the WCAB hearing. The applicant defended by stating that two of the statements were matters of opinion which could not support a perjury conviction. The appellate court disagreed with the applicant. The court stated opinion testimony can be perjury if the applicant does not honestly hold the opinion to which he testifies. The court stated “ the distinction between fact and opinion is one without a difference. Even if the appellant’s statements to the insurance company, Dr. Ovadia and the WCAB were statements of opinion rather than fact, the jury impliedly determined that the statements were false because appellant did not honestly hold those opinions.”

Case: People V. Webb

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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