By: David C. Barnett, Esq.
A true story of how an injured worker, who did not have an attorney, was taken advantage of by the Employer and Carrier!!
In May this year, an injured worker contacted my office and asked us to represent him in his pending Defense Base Act case. He told me he suffered psychiatric injuries as a result of the horrors of war he experienced in Iraq while doing private security work, as well as other stressful employment issues. He initially hired an attorney in January 2012, but the attorney withdrew in October 2012.
After hearing his story, I decided to represent him and help him on his case. Unfortunately, the client did not have many documents, but knew his case was before the Office of Administrative Law Judges, with a trial date for August 2013. After some minor investigation, I was able to locate the attorney who was representing the Employer/Carrier. I requested the Employer/Carrier’s pleadings so I could further review the evidence and understand the procedural status.
While speaking to the Employer/Carrier’s counsel, he began to tell me how bad he thought the case was. He told me my client was not a good guy, that my client refused to cooperate, that my client refused to disclose information and answer discovery, and that my client’s actions made it impossible for the Employer/Carrier to investigate the claim. Finally, the Employer/Carrier’s attorney told me there was a Motion currently before the Court requesting the case be dismissed!
Once I learned about this Motion to Dismiss, I immediately contacted the Court. Not only was there a pending Motion to Dismiss filed by the Employer/Carrier’s counsel, but the Administrative Law Judge had already entered an Order against my client requiring him to explain why he had been uncooperative with discovery, and to explain why the case should not be dismissed. I notified the Court I was now representing the client, and the Judge allowed an additional 20 days to respond to the Order to Show Cause.
I immediately requested the Employer/Carrier’s counsel to send me all discovery documents that required my client’s response. I was sent a Request for Production of documents, Interrogatories, and a Request for Admissions. Upon receipt, my office demanded the client’s immediate cooperation. With his help, we gathered the requested documents, answered the questions presented in the Interrogatories, and we prepared a response to the Request for Admissions. Within ten days, all the responses were sent to the Employer/Carrier’s counsel. I also prepared my own discovery requests directed to the Employer/Carrier. I was then able to prepare a response to the Court, apologizing for the prior delays, but advising the Court all the discovery requests were completed. The case was back on track.
A couple weeks later I received an Order from the Court which denied the Employer/Carrier’s pending Motion to Dismiss; however, the Court decided to punish my client for the prior delays by deeming Requests for Admissions admitted. As I stated, the Employer/Carrier and its counsel filed the Motion to Dismiss, asserting my client did not answer the propounded discovery in a timely manner. A Request for Admissions is a litigation tool used to establish or clarify certain facts that are not really in dispute. This allows the Parties and the Court to avoid needless litigation over facts that everyone agrees exist in the particular case. Typically, a Request for Admission will be formed as a statement, such as “Admit you did not get hurt on the job”, to which the receiving Party must respond.
Under the applicable Federal Rules of Civil Procedure, when a party is served with a Request for Admissions, a response admitting or denying the Request must be made within 30 days of receipt. The Court has the ability to deem Admissions automatically admitted if a timely response is not received. In my client’s case, the Employer/Carrier’s counsel crafted his Request for Admissions in such a way to basically establish my client did not get hurt on the job, he was not injured, he did not need medical care, and he was not entitled to any benefits under the Defense Base Act. By not answering these requests timely, the Court decided to accept these admissions as fact. By doing so, there was no way to win the case!
In light of this Order, I filed a Motion with the Court, requesting the Judge to reconsider his ruling. I explained, even though he denied the Motion to Dismiss, by accepting the admissions as fact, he was essentially dismissing the case! I argued that there was no prejudice to the Employer/Carrier, since the case was denied and no benefits had been provided. The Employer/Carrier’s counsel filed a lengthy response, once again portraying my client as an uncooperative and bad person. The Employer/Carrier argued the failure of my client to cooperate exposed the Employer/Carrier to potentially significant financial risk. The Employer/Carrier further argued that it was unable to properly investigate the case and prepare it for trial.
In early August 2013, the Judge denied my request for reconsideration. The Judge discussed at length the issues he had with my client’s failure to respond to discovery, and explained how the Employer/Carrier was prejudiced by my client’s failures. The Judge then required the Parties to advise the Court why an Order denying the case should or should not be entered based upon the admissions.
After getting the Judge’s Order on my Motion for Reconsideration, I received the Employer/Carrier’s discovery responses. What I learned not only shocked me, but I was truly angered that the Employer/Carrier and its attorney took advantage of my client while he was unrepresented.
Within two weeks of the claim being sent to the Office of Administrate Law Judges to be set for trial, my client attended a defense medical evaluation with a doctor selected by the Employer/Carrier. I also learned this doctor was provided a copy of all my client’s medical records. The Employer/Carrier and its counsel later advised the Court that it was prejudiced in investigating the case, but never advised the Court it had all my client’s medical records the entire time!
I further learned that this was a second expert hired by the Employer/Carrier. One week earlier, a forensic psychologist retained by the Employer/Carrier evaluated all my client’s medical records, and actually spoke to my client’s treating physicians on two occasions! Again, nothing was told to the Judge regarding this evaluation.
When I reviewed both experts’ reports, I learned both doctors notified the Employer/Carrier and its attorney that my client had indeed sustained a psychiatric injury, that he should not be working in a war zone, and that he needed ongoing medical care. Rather than initiate or provide any benefits under the Defense Base Act, the Employer/Carrier remained steadfast in its denial of the claim.
Furthermore, a third expert had been hired by the Employer/Carrier. This was a vocational employment expert, and she prepared a report outlining the impact my client’s psychiatric injuries had on his ability to work. She prepared a report for the Employer/Carrier, and identified alternative work she thought my client could do. She also provided evidence to the Employer/Carrier that my client had the ability to earn some wages, but not as much as he was earning overseas. Again, the Employer/Carrier did not tell the Court about this report, and continued to deny benefits.
After reviewing the Employer/Carrier’s medical and vocational expert reports, it was clear an investigation was completed by the Employer/Carrier, notwithstanding its representation to the Judge. After digesting this new information, I went back to the original discovery the Employer/Carrier said was outstanding from my client, and my anger only grew.
The Employer/Carrier’s counsel clearly sent a Request for Production and Interrogatories to my client’s prior counsel. A Request for Admissions was never sent at that time!
It is required, when a Party is represented by counsel, all communications are sent to the Party’s attorney. My client was not sent the original Request for Production or Interrogatories, as these had been sent to his prior counsel at the time. My client’s prior counsel never responded to the discovery. I do not know what happened between my client and his former attorney, but I do know the Employer/Carrier’s counsel tried to get a response from the prior attorney without success. The Employer/Carrier’s attorney, frustrated, finally filed his initial Motion with the Court, and sent a copy of the Motion to my client’s former counsel. Rather than do anything, the prior attorney remained silent until he notified the Court in October 2012 that he was withdrawing and would no longer be representing the my client.
In November 2012, counsel for the Employer/Carrier drafted the Request for Admissions. The Request for Admissions was not written consistent with the expert reports in the possession of the Employer/Carrier and its attorney. Rather, the Admissions were strategically drafted to overcome the Employer/Carrier’s own expert evidence. This was a tactical measure to try to win the case!!
The Employer/Carrier sent a letter to my client in November 2012 enclosing the Request for Admissions, along with the original Request for Production and Interrogatories that were sent to his prior attorney. This letter was sent certified mail to my client because he was no longer represented by counsel. After thirty days, counsel for the Employer/Carrier contacted the Court and requested an Order compelling responses to the discovery, and requesting that trial be cancelled. Counsel for the Employer/Carrier also suggested to the Court that the requested Admissions could be deemed admitted by the end of the month. My client wrote a letter to the Judge requesting trial be continued so that he could hire an attorney. The Judge entered an Order cancelling the trial and further ordered my client to respond to the Employer/Carrier’s requested discovery.
My client spoke to a few other attorneys, and none of them would accept his case. I have since learned that the other attorneys had contacted the Employer/Carrier’s counsel and were most likely scared off when they were told how uncooperative my client was. Finally, my client contacted me, and I was not deterred after speaking with the Employer/Carrier’s counsel. I felt my client had a valid case for his psychological injuries, and I was prepared to help. I soon learned of the discovery and procedural hurdles, but I decided to try my best, while fully disclosing my concerns to my client.
During the last couple weeks, through my detailed and exhaustive investigation of the prior events in the case, I learned many things. However, the most important thing I learned was that the Employer/Carrier’s attorney was either incompetent or dishonest.
I figured out that the Request for Admissions – which were now being used by the Court as the basis to possibly deny the case altogether – was never received by my client. As I indicated above, the Employer/Carrier’s counsel sent the Request for Admission by certified mail only. Tracking the certified mail number with the United States Postal Service revealed the letter with the enclosed Request for Admissions and prior discovery was never signed for or received by my client. I learned that it was actually returned to the Employer/Carrier’s attorney’s office in December 2012! Without my client getting the Request for Admissions, it is clearly improper for the Court to deem them admitted based upon a failure to timely respond!
In summary, this is what I have discovered since May 2013: I know now the Employer/Carrier and its attorney fully investigated my client’s claim; I know the Employer/Carrier hired two medical experts and a vocational expert; I also know that, in order to verify the work events to which my client was exposed, all the Carrier needed to do was contact the Employer. The Employer certainly knew the work environment and horrors of war to which my client was exposed while doing private security work in Iraq for several years in a row. Finally, I now know that my client’s failure in answering the discovery was not his fault. It was due to the fact he never received it!
Counsel for the Employer/Carrier had an ethical obligation to ensure the Request for Admissions was received by my client prior to seeking to have them deemed admitted. I know that counsel for the Employer/Carrier had an ethical obligation to advise the Court whether the Request for Admissions were actually received by my client! I also know the Judge had an obligation to make sure the Request for Admissions were indeed properly served on my client prior to deeming them admitted!
The Employer/Carrier’s attorney filed Motions and pleadings with the Court that continually portrayed my client in a terrible light. The Employer/Carrier and its attorney never fully advised the Court of their investigation, never fully advised the Court they retained multiple experts, and never advised the Court of their failures in providing my client, while unrepresented, the discovery requests!
Up until now, the Judge has believed the Employer/Carrier and its attorney. My client’s case is on the verge of getting tossed out! However, now that I know what happened, I made a good-faith effort to resolve the issue by contacting the Employer/Carrier’s counsel, requesting he notify the Court of the foregoing, and further requesting the Judge vacate the Orders against my client. If the Employer/Carrier and its counsel refuse or fail to notify the Judge, then I will file my formal Reply next week.
This story is a true example of what we encounter on a daily basis. This is an extreme example of horrible and dishonest litigation. I am hopeful the Employer/Carrier and their counsel do the right thing, but I am confident my client will ultimately get his day in Court.
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RECENT VICTORIES
R.F. v. General Dynamics Corp., OALJ Case No. 2012-LDA-00388 (August 15, 2013).
The Claimant alleged the development of a hip injury after suffering two compensable knee injuries while working in Iraq. The Employer/Carrier denied the hip injury, requiring the matter be adjudicated by Judge Stuart Levin. The Claimant originally sustained a left knee injury in 2006 while working for the Employer. This knee injury was accepted by a prior Carrier, and treatment included knee surgery. In 2007 the Claimant returned to work for the Employer, during which time the left knee worsened. Eventually the Claimant settled his left knee claim with the prior Carrier, AIG. During this same time period, the Carriers changed to ACE, which accepted the aggravation of the left knee condition. By 2009 the Claimant had to return home due to his left knee injury, which eventually required a second surgery, and a recommendation for a total knee replacement. The Claimant also developed left hip pain, which ACE denied. The Claimant argued the left hip was the natural or unavoidable consequence of the deteriorating left knee injury and altered gait. The second Carrier, ACE, argued that no such injury ever occurred to the left hip while employed overseas, and that, if there was a left hip injury, it was related to the original left knee injury with AIG.
After numerous depositions of the treating physicians and IME doctor for ACE, Judge Levin entered a well-drafted Order finding the left hip condition compensable and the natural or unavoidable consequence of the left knee injury. Judge Levin found the medical testimony supported the Claimant’s position that his left knee continued to deteriorate, and such aggravation was accepted already by ACE. Moreover, the medical evidence supported the conclusion that a knee injury and altered gait could lead to a left hip injury, even where a person was already congenitally pre-disposed to developing hip problems. According to Judge Levin, “Claimant need only show that his hip injury progressed naturally from the second knee injury or his underlying genetic hip condition was aggravated by the second knee injury.”
Lesson Learned: A subsequent condition may be compensable if the condition is the natural or unavoidable consequence of an originally compensable injury (sequalla of the original injury), or if the original injury aggravates or accelerates the need for treatment of the subsequent condition.
S.R. v. DynCorp International, OALJ Case No. 2011-LDA-00676 (August 12, 2013).
The injured worker died from injuries sustained overseas while working for DynCorp. The Court had previously entered an Order finding the worker had suffered compensable injuries from prolonged exposure to the harsh working conditions in Iraq several months before his death. Shortly before his death, the injured worker underwent spinal surgery for one of his compensable injuries, resulting in a spinal fluid leak. The current claim was brought on behalf of the wife, seeking a determination that the cause of death was related to the work injuries, and an award of death benefits.
Multiple medical reports were obtained from South Africa, and a forensic pathologist was retained by the law firm of Barnett, Lerner & Karsen, P.A. to review the medical records, prior deposition testimony of the injured worker before his death, and provide an opinion regarding the cause of death. This expert was able to relate the cause of death to the conditions sustained overseas, as well as the medical care required for these conditions – including the spinal fluid leak. Judge Daniel Solomon, who had originally found the injured worker had suffered a compensable accident before his death, also found the death itself was related to the injuries and treatment stemming from the work-related conditions. The Judge found the weight of the medical evidence, including the opinions of the forensic pathologist, supported the claim, and did not give weight to the Employer/Carrier’s own IME. Since the Employer/Carrier failed to rebut the presumption that the injured worker’s death was not work-related, death benefits were awarded to the wife.
Lesson Learned: If the injured worker passes away after a compensable accident, if it can be shown that the death was caused, or even accelerated, by the injuries, death benefits are payable to surviving spouse, minor children, or other established dependents, along with funeral expenses.