Surveillance Can Be Dangerous - and Not Just to Your Claim

As I sat down to draft my blog this week, the most obvious thing that came to mind was a Thanksgiving/Workers' Comp connection. I suspect there are some really interesting "Thanksgiving" cases out there. I can imagine an amusing story about a back strain from lifiting a turkey, or even a claim for psychological trauma as a result of having to choose between nuts and brown sugar or marshmallows for the sweet potatoes. I once had a case where a kitchen worker cut her finger opening a can of green beans. But, what I came across is a story, more of a cautionary tale, about the dangers of assigning surveillance.

The story goes - William Wehnke, 51, was walking on his property, with a loaded shotgun, when, he said, he spotted a "turkey" in a nearby cornfield. He took aim and fired, hitting Matthew Brady in the side of his body, his back and legs. Brady, yes, you guessed it, was not a turkey at all. Rather, he was an investigator hired to investigate Wehnke for workers' compensation fraud. The investigator was apparently wearing dark colored and camouflaged clothing and lying on the ground at the time of the shooting.  

Wehnke was indicted for felony second-degree assault and unlawful manner of taking - a violation that claims he used an inappropriate type of ammunition for hunting turkey - no mention was made in the indictment about whether the ammunition was appropriate for hunting workers' compensation investigators. 

Typically the most dangerous aspect of assigning surveillance is the risk of incurring the expense without actually obtaining any helpful footage. But, as this story illustrates, bodily harm may ensue. I suspect also that the injured investigator not only has a viable workers' compensation claim against his employer, but also a third party suit against the shooter, and potentially the insurance company that retained his services. 

The workers' compensation attorneys at Vandeventer Black wish you all a very happy Thanksgiving. Enjoy good food, friends and family - and football!  

Fourth Circuit Confirms that Even ALJs are Bound by the U.S. Supreme Court

Workers' compensation claims filed pursuant to the Longshore & Harbor Workers' Compensation Act are formally adjudicated by the Office of Administrative Law Judges (ALJ) ALJs are not Article III judges under the judicial branch of the government; rather, they are considered to be part of the executive branch. While it is often true that many procedural rules and rules of evidence are relaxed, Article I judges, and in particular ALJs, do not have the ability or authority to circumvent precedent established by higher Article III courts, including federal circuit courts and the U.S. Supreme Court.

The ALJs got a gentle reminder of this in a recent opinion decided, and published, by the Fourth Circuit. The Fourth Circuit Court of Appeals reversed a decision of the ALJ by finding that BRB committed a clear error of law when it affirmed the ALJ's decision and order. The Fourth Circuit admonished the ALJ for relying on its own precedent rather than the controlling law set forth by the Supreme Court. In particular, the Fourth Circuit determined that the claimant failed to meet his burden of proof; his claim for binaural hearing loss benefits was denied. For more about the facts and actual holding of this case, follow this link. Suffice it to say that the Fourth Circuit found the ALJ erred in relying on the decisions of other ALJs in contravention of a previous holding of the Supreme Court.

This case is important beyond any particular hearing loss case. Because of the rather informal nature of the adjudication of claims by Article I judges, from time to time, ALJs drift off course from the establishment of stare decisis, which is the backbone of the legal system. The U.S. Supreme Court is binding precedent on all courts, even Article I administrative law judges. Sometimes they just need a gentle reminder, which was provided quite effectively by the Fourth Circuit this time around.