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Judge by Day and Investigator by Night

In civil and criminal cases, jurors aren’t allowed to conduct their own experiments or investigations, and must make do with the evidence presented at trial.

In the California Workers’ Compensation system, the Workers’ Compensation Judges are the finders of fact.  How far outside the courtroom can the WCJs go to perform their own investigations?

In a recent case, Madrigal v. 99 Cents Only Stores, the WCJ issued rating instructions to the DEU rater to rate the AME reports.  The DEU rated the reports at 57% permanent partial impairment.

Defendant requested to cross-examine the rater, and provided rebuttal testimony from its own rater, who rated applicant’s impairment at 11%.  The WCJ issued a Findings and Award, completely rejecting the testimony of defendant’s witness as biased.

The basis for this conclusion was the WCJ’s out-of-courtroom review of the witness’s company’s website, which appeared to be partial towards insurance companies.

In granting the petition for reconsideration, the Workers’ Compensation Appeals Board cited Advisory Committee Commentary to Canon 3 B (7) of the Code of Judicial Ethics, “explicitly prohibiting a judge from independently investigating the facts in a case.” (See page 13.)

Sure, the defendant was wronged, but a WCJ can just as easily look on Facebook to see post-injury photos of the “permanent total disability paraplegic” applicant jet-skiing two weeks before trial.

What are some ways around this?  Well, for one, adjusters and defense attorneys need to become familiar with the modern online search.  Pretend your teenage daughter is about to go out with a new boyfriend: maybe it’s time to learn a bit about him?

Don’t just Google the applicant or the applicant’s witness – did you check LinkedIn? Facebook? Twitter? MySpace? Google Plus?  What about a local Craigslist search for handy-man services offered?  Maybe Joe Applicant has been working another job this whole time.

What about past cases?  Did you run the applicant’s name through Lexis?

Once you have pictures you can put them before the judge, served on the applicant, and the bar and exclusion of this case will melt away.  It’s entirely possible that a WCJ wants to see this information but can’t investigate it because of restrictions such as in the Madrigal case.

Another important lesson from this is the effect of easy information on these cases.  In this case, the WCJ admitted the search and added it to the evidence; another judge might not be familiar with this case and find an internet investigation harmless and not worthy of mention.

That’s why defendants must scrutinize every word of a Finding and Award to make sure the evidence actually supports the findings, and the findings actually support the award.  If there is a missing link in that chain, it’s time to push the Recon button.  Even so much as a $0.03 error should be caught and dealt with immediately.

Perhaps some day WCJs will find their internet history made public record to ensure that no robed sleuths apply magnifying glass to the cyber-sidewalk?

In any case, your humble author wishes you a keen eye, a lucky day in court, and, as always, good hunting.

Categories: WCJs
  1. Tim
    July 14, 2011 at 9:06 am

    I think this falls in the same category as Insurance Companies doing this to catch Injured Workers’ lying or playing the injury out to be bigger than it actually was. The point is nobody should have a problem checking into somebodies creditability unless the party that is being checked has something to hide, I think this makes things more fair.

    • July 15, 2011 at 11:09 am

      Tim, I agree with you that all the information relevant to the case should be presented at trial. But if a judge is going to consider any evidence, I certainly want a chance to comment on it for my client and to build a record in case there needs to be an appeal.

      In doing background research on potential QMEs, I’ve seen Yelp! reviews and online comments that are unverified and often anonymous. It’s not fair for a judge to reject a doctor’s opinion based on such things found online, especially without the knowledge of the parties involved.

      I agree with the Board on this one and I’m curious to see how the case will resolve on remand.

  1. April 4, 2012 at 8:18 am

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