|Sunday Commentary: How Liberty Mutual Defied Its Image to Team with Yolo DA to Squash a Vulnerable Injured Worker|
|Written by David Greenwald|
|Sunday, 19 February 2012 06:25|
It is a brilliant and powerful montage, one in which a female voice sings in the background, "I am falling half an acre." The images depict a string of events in which people uncharacteristically go out of their way to do the right thing for their fellow human kind.
Finally, after nearly a minute of images, the music building to crescendo, the voice over comes on, "When it's people doing the right thing, they call it being responsible. When it's an insurance company, they call it Liberty Mutual."
"Liberty Mutual considers responsibility a core value for its brand, employees and customers, and we created the advertising campaign and online community as a forum for discussing a topic that resonates with our customers and organization," said Paul Alexander, Liberty Mutual Group Senior Vice President, Communications, as the company launched a second phase of the popular advertisement themes in 2009.
While it is a great ad campaign, it loses its vital steam when juxtaposed against the background of the Linda Vela case. Linda Vela was convicted of 12 counts of insurance fraud on February 8, including three counts of Presenting a False Statement concerning payments from an insurance policy that she received from Liberty Mutual Insurance, through which Ms. Vela had a long-term disability policy.
In August of 2003 Vela, according to a press release from the Yolo County District attorney, a 25-year veteran employee of the Sacramento Bee newspaper, went out on disability and was diagnosed with bi-lateral carpal tunnel syndrome. She had surgery on her right wrist in June of 2004 which, by all objective signs, was successful. Vela, however, complained that she was still in pain after the surgery and that she could not go back to work despite the surgeon's recommendation that she could return to work.
Based on Ms. Vela's stated complaints of pain, and her reported inability to use her hands, her physician kept her off work as "totally disabled."
Despite the image that Liberty Mutual portrays, it is the 82nd company on the Fortune 500 list in 2011, with an annual revenue of more than $33 billion in 2011.
The real story of the Linda Vela trial was how Liberty Mutual and the Yolo County DA's office used their immense resources and power to squash the small and vulnerable Ms. Vela like a bug.
As Public Defender Ron Johnson would argue in his closing statement, the victim in this case worked for the Sacramento Bee for 25 years, she worked hard, she was great employee, but when she went out on leave because the pressure to perform in this job became too great and she began to break down physically, the Sacramento Bee began pointing the fingers of fraud.
But it was not fraud, and even the DA acknowledges that they were not claiming Ms. Vela was not hurt and they were not claiming that she was not entitled to some disability. They were only claiming that she was untruthful in her representations to the insurance doctors, that she could have worked in some capacity, and that she was entitled to as much compensation as she got.
The real story is how they went about doing this - and along the way they found a willing accomplice in the Yolo County DA's office fraud team, and eventually they managed to convince a Yolo County jury.
Linda Vela's colleagues describe her last months at the Sacramento Bee as horrific. Under immense pressure due to cutbacks, Linda Vela pressed on, working long and hard hours to ensure that her group got their bonuses. But in doing so, they could hear her at times literally screaming and crying in pain as she refused to pause.
When she finally had as much as she could take, she went to the doctor. And Dr. Chan performed surgery on the carpel tunnel, but as he testified, there were additional recommendations that he made in terms of treating both the physical pain and the depression that accompanied it that neither the company nor the insurance companies doctors followed, and so Linda Vela never improved.
Instead of treating her, Liberty Mutual, the company that was supposed to stand for doing the right thing and being responsible, hired investigators to spy on Linda Vela. They also sent her to a string of insurance company doctors. Each time she visited the doctors, she was charged with a felony for insurance fraud.
These are predators in their own way. Doctors like Dr. Charles Xeller, who makes nearly half a million a year on such cases but who was so bad even the DA had to admit he probably would not want his sister marrying him.
This is the type of person that Liberty Mutual sent, not to get Linda Vela help and find treatments for her that Dr. Chan had recommended, but instead to prove that Linda Vela was not really sick at all.
In a case of fraud where the defendant is said to have been lying, it is ironic that the one person shown to be lying was not the defendant but rather the insurance doctor.
It turned out, as even the prosecutor admitted, that Dr. Xeller had a long track record of malpractice suits - at least 15 of them.
He had been charged with an act of domestic violence, and during cross-examination Deputy Public Defender Ron Johnson showed him documentation that he had reached a $1 million settlement in a civil matter in which he was accused of domestic violence.
You do not settle cases for $1 million as a way to hush up the plaintiff. This is not make-the-lawsuit-go-away money. This is real money, because he really did what he was accused of.
But it is more than that. According to DPD Ron Johnson, Dr. Xeller was sanctioned for not filing reports on time. This is not a small factor, as he was paid off by the insurance companies while causing people to go without benefits.
During the trial he testified to a full examination he says he gave Ms. Vela.
But he was lying. Instead of testifying about his examination, he was merely reading from another doctor's report, and he simply walked in, grabbed Ms. Vela's hand and pulled it back - when she screamed out in pain, he left and that was the extent of his investigation.
"[Dr. Xeller] came over to me, pulled my fingers back hard and I pulled away," Ms. Vela told the Vanguard. "He said just a minute I'll be right back - he never came back."
This is indicative of the caliber of insurance doctors sent by Liberty Mutual, not to treat Ms. Vela, but rather to show that she was lying.
But while Liberty Mutual could hire $500,000 attorneys, they could not prosecute a felony fraud case by themselves. They needed a partner, but Sacramento's district attorney, where the Sacramento Bee was based and most of the doctors' visits occurred, was not interested in turning this into a criminal investigation.
Enter Dan Stroski, an investigator for the Yolo County District Attorney's office.
In November of 2010, the Yolo County Board of Supervisors voted to authorize the District Attorney's Office to accept grant funding from the California Department of Insurance for three 2010-11 grants in the amounts of $230,000 from the Workers' Compensation grant, $38,942 from the Life and Annuity grant and $132,796 from the Automobile Insurance Fraud grant.
The report continues, "The Workers' Compensation grant finances a full-time Lieutenant assigned 100% and a part-time Deputy District Attorney assigned 45% to the project, the Automobile Insurance Fraud grant finances a full-time Investigator assigned 100% and The Life and Annuity grant finances an hourly Extra Help Investigator. We do not anticipate any need for local funding as a result of these programs."
The DA receives $400,000 to hire a part-time Deputy DA and two full-time investigators, including Lt. Dan Stroski.
Back in September 2010, Dan Stroski discussed the grants and his work.
According to him, since 1994 the county has received grant money for their fraud prevention program.
"It's based on performance," said Lt. Dan Stroski, an investigator with the DA's office and who heads up the program, a few years back. "The Fraud Assessment Commission likes the job we are doing."
According to past reports, the DA's insurance fraud department has the responsibility, among other things, of investigating and prosecuting employees "who make fraudulent misrepresentations to obtain or enhance insurance benefits they are otherwise not entitled to receive."
"The District Attorney's Office remains absolutely committed to protecting the community from the damaging effects of workers' compensation insurance fraud," said District Attorney Jeff Reisig in a release back in 2007. "Our success in obtaining this grant validates the hard work we have been doing for many years."
These statements make it clear receiving these grants is based on performance.
Back in July of 2011, Insurance Commissioner Dave Jones announced nearly $32 million in grants to District Attorneys across the state to assist them with the investigation and prosecution of workers' compensation insurance fraud.
"Workers' compensation insurance fraud is a costly problem in California," said Commissioner Dave Jones in a press release. "As the economy struggles to recover, fraud of this type creates an additional strain on the system. We must protect those injured workers who need care and compensation so they can return to work in a timely manner and bring to justice those who seek to cheat the system."
But this money is not automatic.
According to their press release, "The grant funding is the result of assessments on California employers that are determined annually by the Fraud Assessment Commission. Counties submit applications to the Department, which convenes the Workers' Compensation Grant Review Panel who then reviews and makes grant funding recommendations based on multiple criteria including previous year performance."
"The panel then forwards a recommendation to the Insurance Commissioner who either accepts or amends the panel's recommendation. Once completed, the Commissioner's recommendation is submitted to the Fraud Assessment Commission for their advice and consent."
Yolo County got a worker's comp grant almost immediately following the commencement of the investigation into Linda Vela. Most recently in 2011, Yolo County received a $245,960 grant from the state to prosecute worker's comp fraud cases.
The grant provisions contain use-it or lose-it incentives. The rules allow for the "carry-over" of funds into "a subsequent funding cycle [to] carry-over" into the next funding cycle. These "unused funds" cannot exceed "twenty-five percent (25%) of the total funding award." To carry money over, the agency must "specify" and "justify" in a written plan to the commission "how those funds will be spent."
In their annual reporting audit they must include an accounting of the number of investigations initiated related to disability insurance fraud, the number of arrests, prosecutions, convictions and the dollar savings realized as a result of disability insurance fraud case prosecutions.
In other words, the district attorney's office needs to be able to show that it is making use of the funding with results - cash for convictions.
The California Department of Insurance, in their 2010 Annual Report of 2010, lists by county the number of "Reported Suspected Fraudulent Claims 2008, 2009 and 2010." The report lists by name all of those arrested for fraud and the amount of money received in Assets Frozen, Restitution, and Criminal Fines.
In seems that the mighty Liberty Mutual, the Yolo DA, and the Department of Insurance have all teamed up to squash Linda Vela like the proverbial bug that they must see her.
In the original Star Trek, they depict a small and furry critter known as the Tribble. Despite their cute appearance and pleasing sound, the Tribbles are a problem, as they breed at a ridiculous rate and eat large stocks of grain.
The Tribble was revisited in the later series and there was an exchange between the character Worf, a Klingon - a proud warrior race who told his colleagues that the Tribble was once "considered motal enemies of the Klingon Empire."
"This?" a character said, holding up the cute creature. "A mortal enemy of the Empire?"
"They were an ecological menace, a plague to be wiped out," Worf responded.
He added, "Hundreds of warriors were sent to track them down throughout the galaxy. An armada obliterated the Tribbles' homeworld. By the end of the twenty third century they had been eradicated."
"Another glorious chapter of Klingon history. Tell me, do they still sing songs of the great Tribble hunt?" the colleague asked mockingly.
Linda Vela was a 25-year employee of the Sacramento Bee who made $40,000 a year. This is the woman that the DA admitted was in pain and entitled to some disability.
However, when the jury convicted her of all 12 charges, not only did the DA succeed in doing the insurance company's dirty work, they sent out a press release telling the world about their great conquest.
In ten years, when Steve Mount is retired, perhaps he will still tell tales about how he and DA Investigator Dan Stroski got the conviction and brought this dangerous criminal to justice.
---David M. Greenwald reporting
David: Unfortunately, the "win at all cost" attitude by Steve Mount and the DA's office seems to often overtake what is logical and just.
This is nothing but an emotional, unsubstantiated, and innuendo filled rehash of this case. It does not change the fact that Ms. Vela did not attempt to try and work out a reasonable accommodation with her employer, so that she could continue to work in some capacity. She merely decided for herself that she could no longer work, and wanted her employer to pay her for not working. I am not prepared to conclude, on this fact pattern presented which is highly and inexcusably biased in favor of the defense, the jury of Ms. Vela's peers got it wrong. A 1 hour (or however long it was) interview at a Denny's restaurant with Ms. Vela, giving her the opportunity to play to a sympathetic audience, an audience out to vilify the DA at all costs, is not evidence, nor is it in the least convincing.
REQUESTING REASONABLE ACCOMMODATION
There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include:
an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.(23) As a practical matter, it may be in an employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur.
ERM, excellent, as usual...
The coverage of this case particularly bothers me - bc I know how hard fought ADA rights are. Situations like Ms. Vela give the disabled a bad name, and make it that much harder for the truly disabled to get the reasonable accommodations they need... and there are employers out there who can make it very difficult...
"In thinking about this story, it occurs to me that Ms Vela may have, at least in part, been led astray by a common mistaken idea about what doctors can and cannot do. Many people who come to me believe that doctors grant disability or determine insurance claims. We do not. "
"Based on Ms. Vela's stated complaints of pain, and her reported inability to use her hands, her physician kept her off work as "totally disabled."I'm wondering, medwoman, if this isn't just the kind of misguided view you were talking about?
I'd think management would seriously consider a personal doctor's evaluation, but might be troubled by a physician who "kept (his patient) off work...based on her stated complaints...."
If she didn't show up for work or exhibited some attitude of disabled entitlement without a convincing physician's report, it wouldn't seem unusual at all to have her get other opinions from the employer's or insurance company's contract doctors.
I think that there are two cautionary notes here for both doctors and patients.
3. Nevertheless, I think there is evidence that she exaggerated her condition. For that to be fraud, it had to be intention with the intent of defrauding the insurance company and worker's comp and it is very difficult for me to believe that she had even the capacity to have that kind of intent.
To what purpose would she exaggerate unless it was with the intent to obtain disability payments she was not entitled to?
Elaine has never been in the courtroom.
First of all, how could you know this? You never asked me. Also, from previous posts you should have known I have been in the courtroom many times, as an attorney, as a plaintiff, and as a defendant, as a witness. I have had more courtroom experience than many attorneys...
I think that her representation that there are employers out there who can make it very difficult is exactly right, but she fails to recognize that this is one of them. I don't believe Linda Vela was in any condition to work, if you met her and talked to her for even a minute, you would understand why that is. Not enough was made about the combination of physical and mental ailments that Ms. Vela clearly suffers from.
Your problem is that you never knew a defendant you didn't believe... I'm being a bit snarky, but this statement calls for such a pointed response. What Ms. Vela said to you or her appearance across the table from you, a sympathetic listener, at a Denny's for an hour is NOT EVIDENCE of anything - it is very biased anecdotal conversation, and nothing more...
You believe Ms. Vela cannot work bc she told you so - but you are not an expert on the subject, not even knowledgeable on the subject. Yet you are right, and the jury was wrong? Oh wait, you conceded the jury was correct, just for the wrong reasons? Your logic is so convoluted and ridiculous it is hard to have a reasonable discussion here...
Not once have you addressed the key issue in this case - Ms. Vela's responsibility to approach her employer and try and work out a reasonable accommodation so she could continue working - something she never bothered to do...
It sounds to me as though Ms.Vela may have had an incomplete understanding of her options and the potential outcomes of her decision.
This is just incorrect. It is Ms. Vela's responsibility BY LAW to approach her employer and let the employer know she has a disability that requires a reasonable accommodation. The employer cannot read her mind. It is not the responsibility of the employer or its insurance company to read employees' minds. Instead Ms. Vela decided on her own she could not work and should get paid for it, come h_ll or high water. It is not her right to make that determination...
You’re right, it is not evidence. It was not supposed to be evidence either. I was there to tell her story based on what she told me. The evidence was what was presented at trial.
Yes, and you are hearing only one side, her side...
I'm trying to show you the other side - all those disabled folks far, far worse off than she, who make an effort to approach their employer and work something out in terms of a reasonable accommodation...
You're just not correct here. She had doctors saying that she could not work. The doctors performed surgery on her. She did not do this on her own. It was only later that the insurance company had their hired people look at her and they started to claim that she could work. When she was still in pain, her treating doctor recommended additional treatment, however, it was at this point that the insurance company and Bee collaborated to stop additional treatments.
No, you are incorrect. Ms. Vela had an affirmative duty to try and work out a reasonable accommodation with her employer, and she failed to do so...
You keep asserting the same thing over and over again that she had a duty to try to work out a reasonable accommodation, but you are assuming she was capable of doing that and I don't think she was.
Now you are arguing mental incompetency, when clearly she was determined competent enough to stand trial...
This is one of the oddest discussions of our law enforcement/legal system you've ever carried on in Judicial Watch.
I don’t think Ms. Vela did not get a fair trial, I think she did not get fair and equitable treatment by her employer who was convinced early on that Ms. Vela was lying or by the insurance company who spent huge amounts of money to prove that she was.
But you yourself concede Ms. Vela "exaggerated" her condition. Where do you draw the line between "exaggerate" and lie? How big does the exaggeration have to be before it becomes a lie? The jury drew the line, and it was the appropriate one, and determined Ms. Vela was guilty of lying. And the reason is bc Ms. Vela made no attempt to work out a reasonable accommodation with her employer. Had she done so, I suspect she would not be in the predicament she is now.
Furthermore, when did she become mentally incompetent? Certainly at trial she was deemed competent to stand trial. Is it conceivable she "lost it" once she was found guilty and now cannot bear to live with the consequences of her ill-conceived choices?
You are missing the point in the law here, the intent has to be in order for her to get benefit that she is not entitled to. It is a specific intent law.
Ms. Vela exaggerated, but she didn't "intend" to exaggerate, so that she could obtain disability payments? If she didn't intend to exaggerate to gain benefits, then why bother exaggerating?