verified petition for writ of review

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION 2________________________________________

CITY OF ANAHEIM,

Defendant and Petitioner,

vs.

THE WORKERS’ COMPENSATION APPEALS

BOARD OF THE STATE OF CALIFORNIA and

JOEL WILLIS,

Respondents.

_________________________________________

B253900

VERIFIED PETITION FOR WRIT OF REVIEW

_______________________________________________________________

Following an Opinion and Order Denying Reconsideration

Workers’ Compensation Appeals Board Case No. ADJ4008604

Hon. Mary Anne Thompson, Workers’ Comp. Admin. Law Judge

_______________________________________________________________

Scott Wm. Davenport, C.S.B. 159432*

MANNING & KASS, ELLROD, RAMIREZ, TRESTER LLP

19800 MacArthur Blvd., Ste. 900 Irvine, California 92612

Telephone: (949) 440-6690 Facsimile: (949) 474-6991

E-Mail: [email protected]

Certified Appellate Specialist, Calif. State Bar Board of Legal Specialization*

Attorneys for Defendant and Petitioner,

CITY OF ANAHEIM

STAY REQUESTED OF ALL TRIAL PROCEEDINGS TOPRESERVE STATUS QUO PENDING RESOLUTION OFPETITION (NO DEADLINES CURRENTLY PENDING)

mailto:[email protected]

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CERTIFICATE OF INTERESTED PARTIES

I, the undersigned, am the attorney for the petitioner. To the best of my

knowledge, petitioner knows of no entity or person who has either an ownership interest

of 10% or more in any party to this action. In addition, to the best of my knowledge,

petitioner knows of no other person or entity that has a financial or other interest in the

outcome of the proceeding that the petitioner reasonably believes the justices should

consider in determining whether to disqualify themselves under canon 3E of the Code of

Judicial Ethics.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on January ___, 2014, at Irvine, California.

________________________________Scott Wm. Davenport

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TABLE OF CONTENTS

Pages

CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -i-

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iv-

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . -2-

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

2. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

3. STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

A. The First Phase of the Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

B. The WCJ Vacates Submission of the Case and Orders FurtherDevelopment of the Record . . . . . . . . . . . . . . . . . . . . . . . . . . -16-

C. Phase 2 of the Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-

4. THIS PETITION SHOULD BE GRANTED AS APPLICANT’SCLAIM WAS PROCURED BY FRAUD PURSUANT TO LABORCODE § 5952 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-

5. THE WCJ’S FINDING IS NOT BASED ON SUBSTANTIALEVIDENCE WHERE IT IS PREMISED ON INACCURATE ANDNON-CREDIBLE REPORTING TO PHYSICIANS, PARTICULARLYWHERE THERE IS SUBSTANTIAL EVIDENCE OF PERJURY ANDFRAUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

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TABLE OF CONTENTS, cont’d

Pages

6. EVEN IF SUFFICIENT EVIDENCE EXISTS TO PASS THE“SUBSTANTIAL EVIDENCE” TEST, THE FINDING SHOULD BEANNULLED AS “UNREASONABLE” PURSUANT TO LABORCODE § 5952, SUBD. (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-

B. Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-

7. WRIT REVIEW IS APPROPRIATE AND NECESSARY . . . . . . . -28-

8. THE NEED FOR A STAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-

9. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-

PETITION FOR WRIT OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-

THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-

SUMMARY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-

WRIT REVIEW IS APPROPRIATE AND NECESSARY . . . . . . . . . . . . . -38-

A STAY SHOULD BE GRANTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-

VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-

RULE 14 CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-

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TABLE OF AUTHORITIES

Pages

CASES

Bowers v. Bernards (1984) 150 Cal.App.3d 870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

City of Los Angeles v. IAC (1965) 63 Cal.2d 263 . . . . . . . . . . . . . . . . . . . . . . 5, 24, 38

Hawaiian Pineapple Co. v. Indust. Acc. Com. (1953) 40 Cal.2d 656 . . . . . . . . . . . . 21

In re Brandy R. (2007) 150 Cal.App.4th 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 38

Jenkins v. WCAB (1975) 48 Cal.App.3d 570 . . . . . . . . . . . . . . . . . . . . . . . 5, 24, 28, 38

Neahr v. Indust. Acc. Com. (1936) 13 Cal.App.2d 146 . . . . . . . . . . . . . . . . . . . . . . . 21

Power v. WCAB (1986) 179 Cal.App.3d 775 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25

Rodriguez v. WCAB (1994) 21 Cal.App.4th 1747 . . . . . . . . . . . . . . . . . . . . . 21, 25-26

Unisys Corp. v. WCAB (1996) 61 Cal.Comp. Cases 1519 . . . . . . . . . . . . . . 21, 22, 23

Varian Med. Systems v. Delfino (2005) 356 Cal.4th 180 . . . . . . . . . . . . . . . . . . . . . . 29

Western Growers Ins. Co. v. WCAB (1993) 16 Cal.App.4th 227 . . . . . . . . . . . . 21,25

STATUTES

Code of Civil Procedure,§ 916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 38, 39

Labor Code,§ 4850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11§ 5708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24§ 5813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30§ 5950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 38§ 5952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim§ 5956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 38§ 6000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 38

- v -

TABLE OF AUTHORITIES, cont’d

Pages

Penal Code, § 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1§ 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1§ 484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER

Cal. Const. art XIV, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

- 1 -

QUESTIONS PRESENTED

Anaheim Police Officer Joel Willis, a former investigator working with

“large quantity cartel-type” investigations, admitted participating in multiple

crimes of moral turpitude during his workers’ compensation trial. Specifically,

Willis could not provide a legitimate explanation for the $183,000 joint bank

account he shared with another former officer, the $100,000 in income which

flowed through an unapproved side business which he claimed generated $100

a month, or the various misrepresentations which were made regarding his

financial status on loan documents, business records, and court filings. Willis

also admitted providing inaccurate information on multiple occasions to the

medical providers who opined on his condition.

Notwithstanding, the trial court found that Willis sustained an industrial

psych injury and that “there was no evidence of inaccurate history, perjury or

fraud.” This ruling presents three issues:

1. Did Willis procure this finding by fraud within the meaning of

Labor Code § 5952(b)?

2. Is the trial court’s award based on substantial evidence where it is

premised on inaccurate and non-credible reporting to physicians, particularly

where there is substantial evidence of perjury and fraud?

3. Even if such a finding was supported by substantial evidence, is

such a finding “reasonable” pursuant to Labor Code § 5952(c)?

It is unclear why two former narcotics officers would open a joint bank account1

seeded with two wire transfers of $33,000 and which would ultimately receive a

total of $183,000 in deposits. App. 362, 375. However, even if one accepts Willis’

position that he was assisting another officer in concealing assets from his wife

during a divorce proceeding, this would constitute aiding and abetting perjury.

Penal Code §§ 32, 118. Making false promotional statements on a web site

regarding prizes that had been awarded constitutes, inter alia, fraud. Penal Code §

484. Misrepresenting one’s employment status during a judgment debtor exam

would likewise constitute both fraud and perjury. Penal Code §§ 118, 484. And

running deposits of nearly $100,000 through a business account which applicant

claims made $100 per month is certainly suggestive of other felonious activity.

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MEMORANDUM OF POINTS AND AUTHORITIES

1. INTRODUCTION

Anaheim Police Officer Joel Willis, a former investigator working with

large quantity cartel-type investigations (App. 165), has a disturbing history of

financial dealings including: (1) opening an account with another former APD

officer with $183,000 (App. 354-362, 943-970); (2) operating an unapproved side-

business while employed as an officer which falsely claimed on a website that 11

individuals had won a $1,000 prize (App. 173-174, 201-205, 822-835); (3)

providing false evidence during a judgment debtor exam that he was unemployed

when this was not the case (App. 433-434); and (4) during a time when he claimed

his side-business made only $100 a month, running deposits of nearly $100,000

through the account with no explanation of where the money came from (App.

342-346). These incidents evidence a dramatic pattern of fraud, perjury and other

felonious criminal activity. 1

- 3 -

When confronted with this evidence during his deposition and at trial,

Willis, an experienced officer and a seasoned witness on the stand, answered “I

don’t know,” “I don’t recall,” “I don’t remember,” or “I have misstated” over 200

times. App. 278. He also admitted that he had given bad information to the

medical examiners who had opined on his medical condition. App. 259. Finally,

Willis admitted that he had been robbing Peter to pay Paul and that having

these financial problems had created “a stressful time” for him. App. 284,

294. This, of course, says nothing about the stress associated with what must have

been a constant and nagging fear of having his participation in the felonious

conduct described above come to light.

Based on this information, the Workers’ Compensation Administrative Law

Judge (“WCJ”) ordered that the physicians re-examine and re-evaluate applicant’s

credibility in light of the testimony adduced at trial to determine whether he did,

in fact, suffer from post-traumatic stress substantially caused by the actual events

of employment. App. 092-095. After re-evaluation, without any analysis

regarding Willis’ stress over committing crimes contrary to his sworn duty to

uphold the law or his concomitant fear of detection, these same physicians once

again found Willis’ injury to be industrial. See App. 1052-1182.

The trial then resumed, at which time Willis was confronted with additional

claims of fraudulent conduct and alternative sources of stress. App. 407, 116-121,

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427, 433-434. And, once again, Willis confirmed that critical information had not

been mentioned to the doctors who found his claims to be industrial. App. 428.

Notwithstanding, the WCJ issued a Finding of Fact which concluded that

applicant had suffered an industrial injury. App. 104-107. In making this finding,

the Court reasoned:

“It is the position of Applicant that he suffered a psychiatric

and gastro internal injury while at the City of Anaheim due to the

stress and strain of his employment as a police officer. His

financial affairs did not affect him at all. . . . Both Dr. Greils and

Dr. Meth responded and found injury. Both doctors have been

provided with all the financial records to the issues of

inaccurate history, fraud and perjury – again the doctors have

been provided everything. There is no evidence of inaccurate

history, perjury or fraud.” App. 106-107 (emphasis added).

However, the WCJ’s reasoning is belied by Willis’ own testimony that his

financial problems had created “a stressful time” for him. App. 294. It also turns

a complete blind eye to Willis’ own attempted explanation for the $183,000

shared bank account which – even if one were to believe him – would make him

guilty of aiding and abetting perjury. App. 354-362, See App. 944-970. Indeed,

the level of sophistication in this case does not suggest simple inadvertence to

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detail, but rather experience garnered from Willis’ involvement working large

quantity cartel-type investigations. See App. 165.

In light of this record, the City of Anaheim submits that Willis procured the

decision in this case by fraud in violation of Labor Code § 5952 (b) and, therefore,

this Court should grant reconsideration.

Additionally, the City of Anaheim submits that neither the decision of the

WCJ nor the opinions of the examining physicians in this case are supported by

substantial evidence in this case as they were premised on reporting which was

admittedly inaccurate and non-credible. Labor Code § 5952 (d).

Finally, even if this Court were to conclude that sufficient evidence exists

to support the finding under the deferential “substantial evidence” test, the City

of Anaheim submits that this Court should overturn the finding nonetheless under

Labor Code § 5952 (c)’s alternative statutory authority. This provision allows the

court to overturn an unreasonable decision even where a decision meets the

deferential “substantial evidence” test. Jenkins v. WCAB (1975) 48 Cal.App.3d

570, 574; City of Los Angeles v. IAC (1965) 63 Cal.2d 263, 264, fn. 1.

Accordingly, for all these reasons, the City of Anaheim respectfully

requests that a Writ of Review issue and that this Court find that Joel Willis failed

to carry his burden of demonstrating that his alleged psychological injury was

sustained in the course of his employment.

- 6 -

2. STATEMENT OF THE CASE

This workers’ compensation case arises out of a disputed claim for

psychological stress injuries filed by Anaheim Police Officer Joel Willis. At the

first phase of the trial, Willis presented various documentary exhibits in support

of his claims (App. 441-687) and, in addition to testifying on his own behalf (App.

161-384), also called his mother to support his claim (see App. 385-392).

Defendant also presented numerous documentary exhibits in support of the

defense that Willis’ stress claims were not industrial (App. 688-970), extensively

cross-examined applicant (App. 187-333, 379-384), and called Willis’ former

supervisor, retired Lt. Donald Klein (App. 393-400).

After the conclusion of the evidentiary phase, the Workers’ Compensation

Administrative Law Judge (“WCJ”) ordered the parties to submit post-trial

briefing. App. 400. Thereafter, both defendant and applicant submitted post-trial

briefs. App. 064-087 (Defense Brief); App. 088-091 (Applicant’s Brief).

After reviewing this briefing, the WCJ issued an order vacating submission

of the case and ordered that the record be further developed. App. 092-095.

Specifically, the WCJ noted that the medical reports were lacking and asked the

physicians to re-examine and re-evaluate applicant’s credibility in light of the

testimony which was adduced at trial and to determine, based on applicant’s

credibility, whether he did, in fact, suffer from post-traumatic stress syndrome

- 7 -

substantially caused by the actual events of employment. App. 095.

Thereafter, the examining physicians issued a total of four new reports

which failed to appreciate the illegality of Willis’ conduct and the concomitant

stress of engage in felonious conduct while working financial-related crimes as a

police officer. App. 1052-1182. The matter was recalled for trial, at which point

Willis resumed his testimony. App. 406-438. At the conclusion of this testimony,

both sides rested. App. 439.

On September 24, 2013, the WCJ issued a Findings of Facts and Opinion

on Decision finding that Willis sustained an industrial injury to his psyche

(including insomnia), hypertension, gastro esophageal reflux disease and irritable

bowel syndrome arising out of and occurring in the course of his employment.

App. 104. The WCJ also found that applicant’s actual earnings at the time of

injury were sufficient to entitle him to “maximum temporary disability and

permanent disability rates.” App. 105.

In support of this conclusion, the WCJ reasoned as follows:

“It is clear to this trier of fact that Applicant has been less

than candid regarding his financial records. It is clear to this

trier of fact that Applicant has been less than candid regarding

his financial affairs although it is not entirely clear how much

he profited each month from his outside business. It is also fair

to say that Applicant’s standard for financial well-being is the polar

opposite from that of the defense attorney.

It is the position of Applicant that he suffered a psychiatric


- 8 -


financial affairs did not affect him at all.

It is the position of the City of Anaheim that the claim has

been simply made up because Applicant wants to get a pension and

continue working in whatever business he may have.

After reviewing the medical reports from the AMEs, and in

particular, the reports following my Opinion on Decision of 10-25-

11, it is found that Applicant has sustained industrial injury to his

psyche, and resulting in insomnia, hypertension, gastro-esophageal

reflux disease and irritable bowel syndrome.

“Both Dr. Greils and Dr. Meth have thoroughly evaluated

Applicant. Additionally after trial, I expressly issued a letter to the

AMEs outlining my concerns. Both Dr. Greils and Dr. Meth

responded and found injury. Both doctors have been provided with

all the financial records. As to the issues of inaccurate history,

fraud and perjury – again the doctors have been provided

everything. There is no evidence of inaccurate history, perjury

or fraud.” App. 106-107 (emphasis added, headings omitted).

Defendant filed a timely Petition for Reconsideration. App. 108-126.

Applicant filed a response. App. 127-132. The WCJ filed a Report and

Recommendation – and a Supplemental Report and Recommendation – requesting

that the WCAB deny reconsideration. App. 133-141.

On December 12, 2013, the WCAB issued an order denying the Petition for

Reconsideration. App. 142-146. The WCAB reasoned that defendant had not

presented any evidence that applicant was not exposed to stressful situations while

employed as a police officer and concluded there was no reason to disturb the

WCJ’s Findings of Fact. App. 144-145.

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3. STATEMENT OF THE FACTS

A. The First Phase of the Trial

Trial - Day 1

On Day 1 of the trial (September 13, 2010), Willis introduced his

documentary evidence. App. 147-154; see App. 441-687. These exhibits included

three medical reports and a deposition from Dr. Robert Meth, and two medical

reports and deposition from Dr. Howard Greils. App. 441-687. The entire

proceedings lasted approximately 12 minutes. App. 149, 153.

Trial - Day 2

On Day 2 of the trial (January 11, 2011), defendant introduced Exhibits A-

I. App. 157-160, 228; see App. 689-1044. Thereafter, applicant’s counsel called

Willis to testify briefly on his own behalf. App. 161-185.

During direct examination, Willis testified that he graduated from the

police academy and started working as a police officer for the City of Downey in

February of 1990. App. 163. Just eight months later, on October 9, 1990, Willis

was shot three times and received four gunshot wounds while responding to an

armed robbery. He was hospitalized and received psychiatric treatment as a result

of the incident from Dr. Blum. App. 162. He returned to active duty in February

of 1991 although he continued to see Dr. Blum until 1994. App. 162-163.

- 10 -

After approximately 5 years, Willis left the City of Downey to take a job

with the City of Anaheim as a police officer. App. 161. His last day at Anaheim

was July 26, 2007. App. 164.

In May of 1995, he was involved in another officer involved shooting.

App. 167. In that case, the suspect pointed a shotgun at him. He was forced to

fire on him and kill him. App. 168-169. As a result of this incident, he saw a city

doctor once and returned to full duty after “the standard three days.” App. 169.

He had his first panic attack in 1995. He did not seek medical treatment at

that time because he did not know what it was. App. 171. He saw Dr. Blum, the

doctor he saw following the first shooting, but did not report it because he did not

want anyone to know. App. 172.

Willis was assigned to be an investigator with the major narcotics unit. In

this position, he was involved with “large quantity cartel-type investigations.”

App 164-165. Working on the street level crimes was a dangerous job. App. 170-

171. He was awarded the investigator of the year award in 2001. App. 165.

In April of 2006, while employed with the City of Anaheim, Willis started

Five-0 Promotions. He did not go through the channels to get proper approval.

App. 173-175. The company sold promotional items like mugs or other items with

a logo on them. App. 174. It was therapeutic. App. 175. The company is no

longer operating. App. 176.

- 11 -

His last job at Anaheim was as a criminal investigator with the counter

terrorism unit. App. 164. He stopped working in July of 2007 because he needed

to take a vacation. He was having anxiety and couldn’t function. He was talking

Lorezapam and Ativan to help with his panic attacks and anxiety. App. 173. He

started treating with various physicians in August of 2007 while he was off duty.

App. 178-179.

While he was not working, his family helped him financially. App. 182.

He continues to have panic attacks since 2007, but not as often. App. 182. He

found the periods of time when he was out of money he had to rely on his family

to be extremely stressful. App. 182. Willis claimed to have stopped working with

Five-0 Promotions because he was not sure if he could continue to do so and still

receive his disability benefits pursuant to Labor Code § 4850. App. 180-181.

Thereafter, the City commenced its cross-examination of Willis. App. 186-

270. During cross-examination, Willis testified that up until 2005, he worked a

significant amount of overtime. App. 210. Once he was reassigned, his overtime

slowed, but he attempted to prepare for this by gradually decreasing his overtime

prior to the transfer. App. 211-212. He was the sole provider for his household

at the time. App. 212.

A review of Willis’ finances demonstrates that he had significant financial

problems with refinancing, bounced checks, missed payments and as many as 60

- 12 -

overdraft charges during a seven month period; however, Willis consistently

maintained that these were not a source of stress for him. App. 213-223, 231.

The Five-0 Promotions’ website indicates that he paid 11 winners $1,000

prizes. However, he never paid any money to anyone and doesn’t know any of the

customers identified on his web page. App. 201-205, 822-825. He claimed his

business website was actually created by someone else. App. 199-200.

Mobilite is a client of his brother, Chris. A number of checks were

deposited into the Five-0 Promotions’ account and then the proceeds were split

between both his brother and him. App. 263-270.

Willis told Dr. Greils that Five-0 Promotions was just a hobby. App. 196.

He also told the other attorneys this. App. 196. Willis indicated that it doesn’t

make a lot of money. App. 197. Willis told Dr. Greils that is brother Chris was

running Five-0 Promotions in October of 2007; however, Willis now claims that

he was mistaken. App. 254. Willis told Dr. Greils this because he wasn’t sure if

he was supposed to be working. App. 254. He misstated the dates to Dr. Greils.

App. 259. He did this because he has been “throwing dates out all over the place.”

App. 259.

Trial - Day 3

On Day 3 of the trial (June 7, 2011), defendant introduced three additional

exhibits (App. 305, 352, 377, 1045-1051) and continued its cross examination of

Willis also testified in inconsistent fashion regarding prior testimony regarding2

insufficient fund charges. At his deposition, he claimed this was the result of his

wife’s actions; however, at trial, he claimed this was a joke. Upon follow up

questioning about how he also testified that he almost got divorced over her

bounced check, Willis appeared to recant his prior trial testimony. App. 287.

- 13 -

Willis (App. 278-376). During this phase of cross-examination, Willis began his

testimony by conceding that it wouldn’t surprise him to learn that he has said “I

don’t know,” “I don’t recall,” “I don’t remember,” or “I have misstated” over 200

times during his prior deposition and trial testimony. App. 278.

In August of 2006, Willis opened a joint account with George Dominguez,

another former Police Officer. He claimed it was because Dominguez was going

through a divorce and he was assisting him in hiding money from his wife. App.

354-362, 943-970. This account was initially opened with two wire deposits for

$33,600 each. App. 375, 1050. This joint account showed a check written to

Willis for $2,500 (App. 371) and another written to his brother for $15,000 (App.

372).

Willis denied he was in debt when he left work. App. 280. He claims he

could pay his mortgage. App. 280. However, when he didn’t have money, it was

extremely stressful. App. 282. He had to rob Peter to pay Paul. App. 282. He

had to borrow money from friends and family. App. 282. He also testified to two

different, conflicting reasons for wanting to get a loan. App. 295-296. He was2

aware that he had been classified as a delinquent customer before he left work, but

- 14 -

this was not a source of stress. App. 306. He had failed to pay his mortgage three

times during 2007 but claims it was only “a little” financial problem. App. 309-

310.

Willis’ business stopped in January of 2009 because he didn’t have his

brother to help him anymore. App. 316. He was behind in taxes and made a

payment agreement with the State Franchise Tax Board after they filed a lien.

App. 316-320, 1044. Willis had indicated that his business was barely making

$100 a month in a good month, although he subsequently claimed this was just a

figure of speech and that the business wasn’t making a lot of money. App. 338-

339.

During this time he told the disability company that he was starving to

death. However, he had made deposits into his account of $17,000 (which he had

received from his parents) and ten business deposits into his account totaling more

than $24,000. App. 342-343. In fact, in May of 2008, during the time period

when he claimed to be starving and his business was making only $100 per month,

he received a check to Five-0 Promotions for $12,000. App. 368-369. Ironically,

this check was made payable from the International Association of Financial

Crimes. Id.

Moreover, during the period of January 2008 to June of 2008, when he was

requesting disability from the insurance company, over $100,000 was deposited

- 15 -

into the Five-0 Promotions business account. App. 344-345. Willis could not

explain where this money came from, claiming that his brother ran the business

during this time. App. 342-346. Also, on January 1, 2008, during a time which

he was on disability, he wrote a check to Access Investigations (George

Dominguez’s company) for slightly over $10,000, which he claimed was a

personal loan to George. App. 365, 952.

Applicant’s counsel then called Willis’ mother to testify on his behalf

regarding money which she had loaned him. App. 386-392. Thereafter, Willis

rested his case in chief. App. 392.

Defendant then called Willis’ former supervisor, retired Lt. Donald Klein.

App. 393-400. Lt. Klein testified that in 2007 he asked Willis to transfer from his

position as an undercover officer in major narcotics to a more low-key criminal

intelligence unit. App. 394- 396. He first became aware that Willis was filing a

psych claim in September of 2007. App. 396. He was surprised to learn of this

because he was not aware that Willis ever presented any psych, stress or anxiety

issues to any of his co-workers. App. 397-398.

Following the testimony of Lt. Klein, the defendant rested its case in chief.

App. 400.

The correct spelling is “Greils”. See App. 510. The WCJ’s order is produced3

verbatim but without the use of [sic] for ease of reading.

- 16 -

B. The WCJ Vacates Submission of the Case and Orders Further

Development of the Record

After reviewing this briefing, the WCJ issued an order vacating submission

of the case and ordered that the record be further developed. App. 092-095.

Specifically, the WCJ noted that the medical reports were lacking and stated as

follows:

“When looking at the reports of Dr. Meth and Dr. Griels , I3

notice that they do not have the benefit of the testimony from

Applicant’s mother and from Lt. Klein, both of whom I found

credible.

“I want Dr. Meth, and in particular, Dr. Griels, to do the

following:

(1) Review the trial transcripts.

(2) Review the post-trial points and authorities provided by

Applicant’s Attorney and Defense Attorney.

(3) Each doctor must re-examine Applicant in order to

comment on Applicant’s disability in light of his current work

history.

(4) Each doctor must comment on the following:

As the trier of fact, I find that Applicant was a very capable

police officer who was exposed to stressful police work. I also find

that Applicant has been more active in Five-0 Productions than was

originally reported. While the question of credibility is one for this

court to determine, this trier of fact looks to Dr. Griels to determine

that credibility in light of Applicant’s activities with Five 0

Productions, George Dominguez, and the testimony from

Applicant’s mother and Lt. Klein. Does Applicant in fact suffer

from post-traumatic stress syndrome substantially caused by the

actual events of employment?

Although Willis initially claimed that he was merely a paid employee (and4

implied that he was paid under the table), evidence was produced showing that

Willis had represented that he was a partner in the business. App. 407, 416-417.

- 17 -

(5) Dr. Griels needs to report first. His report is then to be

sent to Dr. Meth for review and comment.

(6) Both Dr. Griels and Dr. Meth must state whether or not

Applicant can return to police work and must explain the reasoning

for that opinion.” App. 094-095.

C. Phase 2 of the Trial

On May 28, 2013, the case was recalled for a fourth day of trial. App. 403-

440. At this time, Willis entered four supplemental medical reports which had

been prepared by Dr. Greils and Dr. Meth. App. 405, 1052-1182.

Defense counsel then recalled Willis to testify. During direct exam, Willis

testified that since leaving the City of Anaheim, Willis has worked as a campus

security guard (App. 408-410), a baseball instructor and hitting coach (App. 413-

415), as a project manager for Allan Daniel Construction (App. 415), in sales at

Say Cash Go Express (App. 415), and as a partner in a pool restoration business4

(App. 416-417).

Although he had never been unemployed since he left the City of Anaheim

and had only been on disability a few months, he did recall appearing for a

judgment debtor examination where he provided information that he was

unemployed and could not pay a judgment. App. 410-411.

- 18 -

Willis indicated that he started taking Ativan in 1997 and kept using it as

needed for panic attacks following the multiple officer involved shootings in

which he was involved. App. 422-423. He claimed he was managing his panic

attacks over the next 10 years using breathing techniques. App. 425. Nothing in

particular happened in 2007 which resulted in him being unable to manage his

condition. App. 425.

Since his last trial, five or six judgments for over $30,000 have been

entered against him. App. 427-428. He does not recall bringing these to Dr.

Greils’ attention and doesn’t think he did so. App. 428.

According to information provided at a judgment debtor examination,

Willis is listed as being unemployed. App. 430-432. Willis acknowledged

appearing at the hearing, but denied making this representation. App. 433.

Following Willis’ testimony, the matter was submitted. App. 439.

4. THIS PETITION SHOULD BE GRANTED AS APPLICANT’S

CLAIM WAS PROCURED BY FRAUD PURSUANT TO LABOR

CODE § 5952 (B)

Labor Code § 5952 (b) provides that this Court may review the decision of

the WCAB where an order, decision or award was procured by fraud. This case

presents one such example.

- 19 -

In this case, the WCJ had very clear concerns about Willis’ credibility in

light of the testimony and documentation which was presented at trial. App. 094-

095. Indeed, the WCJ was so concerned about applicant’s failure to disclose all

relevant stressors to the physicians charged with evaluating him, she specifically

directed them to re-evaluate him and to assess his credibility in light of his failure

to provide an accurate reporting history. App. 094-095.

Although Willis did present for re-evaluation, he admitted during the

second phase of the trial that, once again, he failed to disclose all relevant and

critical information to the physicians. App. 428. Moreover, he was confronted

with multiple acts of additional fraudulent conduct which occurred since the first

phase of the trial including: (1) a misrepresentation regarding the nature and extent

of his involvement with a pool cleaning business (App. 407, 416-417); (2) the

implication that Willis receives payment for services “by check” “under the table”

and without paying any taxes (App. 407); and (3) evidence that representations

were made during a judgment debtor exam indicating that Willis was unemployed

when, in fact, he had been continuously employed (App. 433-434).

In sum, a review of the record demonstrates that Willis’s history evidences

a dramatic pattern of fraud, perjury and other felonious criminal activity. See

Footnote 1, supra. This conduct so pervaded Willis’ life that it was difficult for

him to keep from giving bad information to the examining physicians as he was

- 20 -

“throwing dates out all over the place.” App. 259.

Finally, it is important to note that because the true nature and extent of

Willis’ involvement in these various activities was never disclosed to his

physicians, they were never afforded an opportunity to determine whether a

reasonable fear of detection and apprehension constituted a valid stressor which

was non-industrial.

Accordingly, since Willis repeatedly and consistently failed to provide all

relevant information to those charged with assessing his psychological state, the

findings in this case should be set aside as they were procured by fraud within the

meaning of Labor Code § 5952 (b).

- 21 -

5. THE WCJ’S FINDING IS NOT BASED ON SUBSTANTIAL

EVIDENCE WHERE IT IS PREMISED ON INACCURATE AND

N O N - C R E D I B L E R E P O R T I N G T O P H Y S I C I A N S ,

PARTICULARLY WHERE THERE IS SUBSTANTIAL EVIDENCE

OF PERJURY AND FRAUD

It is well-settled that while findings must be liberally interpreted in favor

of sustaining an award by the commission, the award will be annulled where the

record is devoid of any substantial evidence to support findings on which the

award is based. Hawaiian Pineapple Co. v. Indust. Acc. Com. (1953) 40 Cal.2d

656. An abuse of discretion that warrants the court's setting aside commission's

findings occurs when there is total absence of evidence to support the findings.

Neahr v. Indust. Acc. Com. (1936) 13 Cal.App.2d 146.

Moreover, both the Court of Appeal and the WCAB have declined to

follow the opinions and reports of medical examiners where there is good reason

to find that the reports are unpersuasive. Power v. WCAB (1986) 179 Cal.App.3d

775, 782; Western Growers Ins. Co. v. WCAB (1993) 16 Cal.App.4th 227;

Rodriguez v. WCAB (1994) 21 Cal.App.4th 1747. For example, in Unisys Corp.

v. WCAB (1996) 61 Cal.Comp.Cases 1519, the WCAB set aside a finding that a

stress claim was industrial where the applicant’s medical history failed to disclose

her son’s history of alcoholism and suicide. Under these facts, the WCAB

- 22 -

concluded that the medical reporting did not constitute substantial medical

evidence to support the finding because it was based on inaccurate or fraudulent

reporting. Id. at 1522.

In this case, there is no question that Willis presented evidence that he was

involved in two officer involved shootings. See App. 162, 169. However, in the

first instance, which occurred over 20 years earlier during his rookie year, Willis

was back to work within 3 months after sustaining four gunshot wounds. App.

163. And, after the 1995 incident in which he shot a suspect, he returned to work

after being off the “standard three days.” App. 169.

There was no evidence (except for self-serving testimony of the highly

discredited applicant himself) that Willis was suffering any work-related stress.

App. 397-398. In fact, he had recently been reassigned from a more-stressful

position to a less-stressful position which required less overtime. App. 211-212,

394-396. Even Willis himself conceded that nothing happened in particular in

2007 which resulted in him being unable to manage his alleged panic attacks.

App. 425.

Indeed, the only changes were: (1) Willis’ removal from filed involvement

with “large quantity cartel-type” investigations; and (2) a sudden and dramatic

increase in shadowy financial dealings involving secret bank accounts, large wire

- 23 -

transfers, and substantial evidence of felonious activity by an officer who received

special training and experience in financial transactions (and the very likely fear

of detection and apprehension).

Given that this information was not fully and fairly presented to the medical

evaluators – and since the information which was presented to the physicians was

inaccurate – the underlying support for the physicians’ opinion is lacking. Where

the underpinnings are not present, they simply cannot serve as substantial evidence

to support the WCJ’s decision. See Unisys Corp. v. WCAB, 61 Cal.Comp. Cases

at 1522.

Accordingly, defendant submits that the petition should be granted as the

WCJ’s finding is not based on substantial evidence where it is premised on

inaccurate and non-credible reporting to the physicians. Labor Code § 5952(d).

6. EVEN IF SUFFICIENT EVIDENCE EXISTS TO PASS THE

“SUBSTANTIAL EVIDENCE” TEST, THE FINDING SHOULD BE

ANNULLED AS “UNREASONABLE” PURSUANT TO LABOR

CODE § 5952, SUBD. (C)

Finally, in addition to those situations in which the Court is capable of

reversing for want of substantial evidence pursuant to Labor Code § 5952 (d),

- 24 -

Labor Code § 5952 (c) provides alternative specific statutory authority which

allows the court to overturn a decision merely as “unreasonable” even where a

decision meets the “substantial evidence” test. As discussed herein, even if this

Court were to find that Willis had met his burden under the admittedly relaxed

“substantial evidence” test, as set forth herein, the City of Anaheim submits that

this finding should be reversed nonetheless.

A. Applicable Law

For example, in Jenkins v. WCAB, 48 Cal.App.3d at 574, the Court of

Appeal reversed an order of the WCAB, holding the WCAB’s actions were

“‘unreasonable’ within the meaning of Labor Code section 5952, subdivision (c);

see City of Los Angeles v. IAC, 63 Cal.2d at p. 264, fn. 1.”

The “substantial evidence” test is an admittedly deferential standard which

can limit the ability of the court of appeal on review. See Bowers v. Bernards

(1984) 150 Cal.App.3d 870, 873-874. Not so with the provision for a statutory

“reasonableness” basis under Labor Code § 5952 subd. (c).

Such a rule as the WCAB is constitutionally bound to administer cases in

a manner to “accomplish substantial justice in all cases expeditiously,

inexpensively, and without encumbrance of any character.” Cal. Const. art XIV,

§ 4. The WCAB is not bound by the common law or statutory rules of evidence

- 25 -

or procedure, but may make inquiry in the manner best calculated to ascertain the

substantial rights of the parties and carry out justly the spirit and provisions of the

law. Labor Code § 5708.

B. Legal Analysis

Although the City of Anaheim acknowledges that there are policy

considerations at issue in this case, those in support of the injured worker are not

the only ones. Indeed, there are differing policy concerns regarding the

requirement to present full and complete – and truthful – information to examining

physicians. Likewise, there is a fundamental policy that it is the responsibility of

the WCJ to determine the credibility of the witnesses. If the WCJ believes that the

injured worker is not credible – as was apparently the case here – the WCJ should

not have sent this matter to a series of physicians so as to obtain their opinion on

applicant’s credibility. In so doing, the WCJ abrogated her responsibility under

the law to determine the credibility of the parties.

Likewise, the WCJ should not merely be a ministerial clerk who “rubber

stamps” the opinions of reporting physicians. Rather, a WCJ has an affirmative

obligation to decline to follow a medical opinion if there is good reason to find

that opinion unpersuasive. Power v. WCAB, 179 Cal.App.3d at 782; Western

Growers Ins. Co. v. WCAB, 16 Cal.App.4th at 227; Rodriguez v. WCAB, 21

- 26 -

Cal.App.4th at 1747.

In this case, evidence was presented of a former investigator who worked

with large-quantity cartel-type investigations, who admitted under oath to

committing multiple undetected felonies and crimes of moral turpitude during his

last year of employment and in the years since he has been on leave. App. 165.

Specifically, evidence was presented that Willis opened a bank account with

another former APD officer with $183,000 (which he claimed was for the purpose

of aiding and abetting the officer’s actions of defrauding his wife during a divorce

proceeding). App. 354-362; see App. 943-970. He operated an unapproved side-

business while employed as an officer which falsely claimed on a website that 11

individuals had won a $1,000 prize. App. 202-205; See App. 822-835. Evidence

was presented during a judgment debtor exam that he was unemployed when that

was not the case. App. 433-434. During times when he claimed his side-business

only made $100 a month, he was running deposits totaling nearly $150,000

through the account. App. 342-346. And, most importantly, he failed to disclose

evidence of extraordinary stressors such as the commission of crimes and actions

taken to prevent their detections, financial problems resulting in numerous

lawsuits, judgments, and liens, and other activities to the very doctors repeatedly

tasked to opinion on his psychological condition as aspects of his fraudulent

- 27 -

activities continued to become exposed. App. 259, 428.

Given these facts, the WCJ’s finding that “there was no evidence of

inaccurate history, perjury or fraud” is clearly and unequivocally belied by the

record. See App. 107. Indeed, if a WCJ will not reject a finding of a physician

in this case as unreasonable, one wonders when exactly a WCJ would reject a

finding as unreasonable? By letting this decision stand, this Court would send a

rather chilling message to municipalities who are tasked with the obligation of

defending against suspect claims.

The unwarranted and undesired effect of this case is that a WCJ will be

considered to act appropriately if he or she simply adopts whatever determination

is made by the physician, without regard to common sense or any independent

review of the evidence, facts, or credibility of the witnesses. Simply stated, the

WCJ should not be allowed to “punt” on issues of credibility determination.

Certainly, this is not the state of the law, nor should it be.

This Court can -- and should -- mark a brighter line.

Clearly, this case is evidence of the fact that guidance is necessary for the

WCAB and the 150 WCJs who are grappling with issues of this nature.

Accordingly, for all these reasons, the City of Anaheim submits that even if this

Court were to conclude that sufficient evidence exists to satisfy the “substantial

- 28 -

evidence” test, the conclusion that Willis was injured in the course of his

employment under these facts was simply not “reasonable” within the meaning of

Labor Code § 5952 (c). Jenkins, 48 Cal.App.3d at p. 574.

7. WRIT REVIEW IS APPROPRIATE AND NECESSARY

This case presents several interesting issues with respect to the finding that

Willis was in the course of his employment which, both generally and with respect

to these facts in particular, are extremely ripe for review: (1) is a finding of an

industrial injury based on substantial evidence where it is premised on inaccurate

and non-credible reporting to physicians, particularly where there is substantial

evidence of perjury and fraud; and (2) even if such a finding is supported under

the deferential “substantial evidence standard,” is such a finding simply

“unreasonable” pursuant to Labor Code § 5952(c) such that it cannot withstand

appellate scrutiny?

Writ review is necessary in this case because the City of Anaheim has no

other adequate remedy. Labor Code § 5950. This Petition has been filed within

the statutory 45-day period of the WCAB’s December 12, 2013, Order Denying

Reconsideration. App. 142-146. Moreover, it is necessary to address the

important questions presented herein and to obtain uniformity of decision.

- 29 -

8. THE NEED FOR A STAY

As a general rule, the perfecting of a stay regarding a civil dispute stays all

proceedings in the trial court upon the judgment or order appealed from or upon

the matters embraced therein of affected thereby. Code of Civil Procedure §

916(a); Varian Med. Systems v. Delfino (2005) 356 Cal.4th 180, 189. The purpose

of the automatic stay provision is to protect the appellate court’s jurisdiction by

preserving the status quo until the appeal is decided. Id. at 189.

Petitioner acknowledges that Section 916's automatic stay provisions

applies only to appeals and do not apply to general writ proceedings. See In re

Brandy R. (2007) 150 Cal.App.4th 607, 609-610. Moreover, the workers’

compensation laws provide that no automatic stay is issued by the filing of a

petition for writ of review in the court of appeal. Labor Code §§ 5956, 6000.

However, although this is an extraordinary writ petition, it is really more

akin to an appeal in that petitioner has no other remedy at law. Labor Code §

5950. In this case, the WCJ has not only found that Willis has suffered an

industrial injury, the WCJ has determined that Willis’ earnings were sufficient to

entitle him to “maximum temporary disability and permanent disability rates.”

App. 105. Although there are other outstanding issues which need to be addressed

in this case – such as apportionment, offset, and the nature and extent of plaintiff’s

- 30 -

alleged injuries – an order such as this would appear to be sufficient to allow

Willis to request and obtain advances on any permanent disability award.

Additionally, defendant’s actions from this point forward could potentially expose

the City (and, correspondingly, the taxpayers) to additional liability for monetary

sanctions pursuant to Labor Code § 5813 for exercising defendant’s right to

contest the validity of the award which was issued in this case.

Given the unique facts of this case, the City of Anaheim seeks a short stay

of all trial proceedings in this case to preserve the status quo pending the

resolution of this petition. Given that there are no deadlines currently pending,

there is little or no prejudice to Willis in such a stay. This stay is not done for the

purposes of harassment or unjust delay, but rather seeks to preserve the status quo

and effectuate the same policies which are present and which serve as the basis for

automatic stays in the civil context. See Code of Civil Procedure § 916.

- 31 -

9. CONCLUSION

Accordingly, for all these reasons, the City of Anaheim respectfully

requests that a Writ of Review issue and that this Court issue a new and different

order finding that Joel Willis failed to carry his burden of demonstrating that his

alleged psychological injury was sustained in the course of his employment.

Moreover, the City of Anaheim respectfully requests that this Court issue a stay

of all trial proceedings to preserve the status quo pending the resolution of this

writ petition.

Dated: January ___, 2014 Respectfully submitted,

MANNING & KASS

ELLROD, RAMIREZ, TRESTER LLP

By _________________________

Scott Wm. Davenport


CITY OF ANAHEIM

- 32 -

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION ____

_________________________________________

CITY OF ANAHEIM,

Defendant and Petitioner,

vs.

THE WORKERS’ COMPENSATION APPEALS

BOARD OF THE STATE OF CALIFORNIA and

JOEL WILLIS,

Respondents.

_________________________________________

B_______

PETITION FOR WRIT OF REVIEW

TO THE HONORABLE PRESIDING JUSTICE AND THE HONORABLE

ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL:

Defendant and Petitioner City of Anaheim hereby petitions this Court for

a Writ of Review to inquire into and determine the lawfulness of the Opinion and

Order Denying the Petition for Reconsideration made by the Worker’s

Compensation Appeals Board ( “WCAB”) dated December 12, 2013, which

upheld the Findings and Order that Joel Willis sustained an injury arising out of

and occurring in the course of employment in WCAB Case No. ADJ4008604.

- 33 -

In support of its Petition for Writ of Review, Petitioner alleges as follows:

THE PARTIES

1. Petitioner City of Anaheim is the defendant in the underlying

workers’ compensation matter.

2. Respondent Workers’ Compensation Appeals Board of the State of

California is exercising all judicial functions in the proceedings below.

3. Respondent Joel Willis is the applicant in the underlying workers’

compensation matter.

SUMMARY OF THE CASE

4. This workers’ compensation case arises out of a disputed claim for

psychological stress injuries filed by Joel Willis. At the first phase of the trial,

Willis presented various documentary exhibits in support of his claims (App. 441-

687) and, in addition to testifying on his own behalf (App. 161-384), also called

his mother to support his claim (see App. 385-392). Defendant also presented

numerous documentary exhibits in defense of its claims (App. 688-970),

extensively cross-examined applicant (App. 187-333, 379-384), and called Willis’

former supervisor, retired Lt. Donald Klein (App. 393-400).

5. After the conclusion of the evidentiary phase, the Workers’

Compensation Administrative Law Judge (“WCJ”) ordered the parties to submit

post-trial briefing. App. 400. Thereafter, both defendant and applicant submitted

- 34 -

post-trial briefs. App. 064-087 (Defense Brief); App. 088-091 (Applicant’s

Brief).

6. After reviewing this briefing, the WCJ issued an order vacating

submission of the case and ordered that the record be further developed. App.

092-095. Specifically, the WCJ noted that the medical reports were lacking and

asked the physicians to re-examine and re-evaluate applicant’s credibility in light

of the testimony which was adduced at trial and to determine, based on applicant’s

credibility, whether he did, in fact, suffer from post-traumatic stress syndrome

substantially caused by the actual events of employment. App. 095.

7. Thereafter, the examining physicians issued a total of four new

reports. App. 1052-1182. The matter was recalled for trial, at which point Willis

resumed his testimony, and Willis was confronted with additional claims of

fraudulent conduct and alternative sources of stress. App. 406-438. And, once

again, Willis indicated that this information had not been mentioned to the doctors

who found his claims to be industrial. App. 428. At the conclusion of this

testimony, both sides rested. App. 439.

8. On September 24, 2013, the WCJ issued a Findings of Facts and

Opinion on Decision finding that Willis sustained an industrial injury to his psyche

(including insomnia), hypertension, gastro esophageal reflux disease and irritable

bowel syndrome arising out of and occurring in the course of his employment.

- 35 -

App. 104. The WCJ also found that applicant’s actual earnings at the time of

injury were sufficient to entitle him to “maximum temporary disability and

permanent disability rates.” App. 105.

9. In support of this conclusion, the WCJ reasoned as follows:

“It is clear to this trier of fact that Applicant has been less

than candid regarding his financial records. It is clear to this

trier of fact that Applicant has been less than candid regarding

his financial affairs although it is not entirely clear how much

he profited each month from his outside business. It is also fair

to say that Applicant’s standard for financial well-being is the polar

opposite from that of the defense attorney.

It is the position of Applicant that he suffered a psychiatric



financial affairs did not affect him at all.

It is the position of the City of Anaheim that the claim has

been simply made up because Applicant wants to get a pension and

continue working in whatever business he may have.

After reviewing the medical reports from the AMEs, and in

particular, the reports following my Opinion on Decision of 10-25-

11, it is found that Applicant has sustained industrial injury to his

psyche, and resulting in insomnia, hypertension, gastro-esophageal

reflux disease and irritable bowel syndrome.

“Both Dr. Greils and Dr. Meth have thoroughly evaluated

Applicant. Additionally after trial, I expressly issued a letter to the

AMEs outlining my concerns. Both Dr. Greils and Dr. Meth

responded and found injury. Both doctors have been provided with

all the financial records. As to the issues of inaccurate history,

fraud and perjury – again the doctor have been provided everything.

There is no evidence of inaccurate history, perjury or fraud.”

App. 106-107 (emphasis added, headings omitted).

- 36 -

10. Defendant filed a timely Petition for Reconsideration. App. 108-

126. Applicant filed a response. App. 127-132. The WCJ filed a Report and

Recommendation – and a Supplemental Report and Recommendation – requesting

that the WCAB deny reconsideration. App. 133-141.

11. On December 12, 2013, the WCAB issued an Opinion and Order

Denying the Petition for Reconsideration. App. 142-146. In so doing, the

WCAB reasoned that defendant had not presented any evidence that applicant was

not exposed to stressful situations while employed as a police officer. App. 144.

Given these facts, the WCAB concluded there was no reason to disturb the WCJ’s

Findings of Fact. App. 145.

ISSUES PRESENTED

12. In finding that applicant had sustained an industrial injury, the WCJ

reasoned:

“It is the position of Applicant that he suffered a psychiatric



financial affairs did not affect him at all. . . . Both Dr. Greils and

Dr. Meth responded and found injury. Both doctors have been

provided with all the financial records to the issues of

inaccurate history, fraud and perjury – again the doctors have

- 37 -

been provided everything. There is no evidence of inaccurate

history, perjury or fraud.” App. 106-107 (emphasis added).

13. However, the WCJ’s reasoning is belied by Willis’ own testimony

that his financial problems had created “a stressful time” for him. App. 294. It

also turns a complete blind eye to Willis’ own attempted explanation for the large

shared bank account another former officer – that he was aiding and abetting the

other officer in concealing assets from his spouse during a divorce. App. 354-362,

See App. 944-970.

14. In light of this record, the City of Anaheim submits that Willis

procured the decision in this case by fraud in violation of Labor Code § 5952(b)

and, therefore, this Court should grant reconsideration.

15. Additionally, the City of Anaheim submits that neither the decision

of the WCJ nor the opinions of the examining physicians in this case are supported

by substantial evidence in this case as it was premised on reporting which was

admittedly inaccurate and non-credible. Labor Code § 5952 (d).

16. Finally, even if this Court were to conclude that sufficient evidence

exists to support the finding under the deferential “substantial evidence” test, the

City of Anaheim submits that this Court should overturn the finding nonetheless

under Labor Code § 5952 (c)’s alternative statutory authority which allows the

court to overturn a decision merely as “unreasonable” even where a decision

- 38 -

meets the “substantial evidence” test. Jenkins v. WCAB, 48 Cal.App.3d at 574;

City of Los Angeles v. IAC, 63 Cal.2d at 264, fn. 1.

WRIT REVIEW IS APPROPRIATE AND NECESSARY

17. Writ review is necessary in this case because the City of Anaheim

has no other adequate remedy. Labor Code § 5950. This Petition has been filed

within the statutory 45-day period of the WCAB’s December 12, 2013 Order

Denying Reconsideration. App. 142-146. Moreover, it is necessary to address the

important questions presented herein and to obtain uniformity of decision.

18. Accordingly, for all these reasons, the City of Anaheim respectfully

requests that a Writ of Review issue and that this Court issue a new and different

order holding that applicant Joel Willis’ injury was not sustained in the course of

his employment.

A STAY SHOULD BE GRANTED

19. Finally, petitioner acknowledges that there is no automatic stay

provision applicable to workers’ compensation writs. See In re Brandy R., 150

Cal.App.4th at 609-610; Labor Code §§ 5956, 6000.

20. However, since this is an extraordinary writ petition, it is really more

akin to a direct appeal in that petitioner has no other remedy at law. Labor Code §

5950. Moreover, where this a direct appeal, petitioner would be entitled to an

automatic stay to preserve the status quo. Code of Civil Procedure § 916.

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21. Given the fact that significant evidence of fraud and other criminal

activity on the part of Willis was presented at trial, petitioner seeks a short stay of

all trial proceedings in this case to preserve the status quo pending the resolution

of this petition. Given that there are no deadlines currently pending, there is little

or no prejudice to Willis in such a stay. This stay is not done for the purposes of

harassment or unjust delay, but rather seeks to preserve the status quo and

effectuate the same policies which are present and which serve as the basis for

automatic stays in the civil context. Code of Civil Procedure § 916.

PRAYER FOR RELIEF

WHEREFORE, Petitioner prays that:

1. A Writ of Review issue out of this Court to the Workers’

Compensation Appeals Board commanding it to certify fully to this Court, at a

specified time and place, the record and proceedings in this case, so that they may

inquire into the lawfulness and Order Denying Reconsideration;

2. The records and proceedings of this case being fully heard and

considered by the Court, and that the Order Denying Reconsideration be annulled,

vacated, and set aside;

3. A new and different order be entered finding that Joel Willis has not

carried his burden of proof of demonstrating that he sustained an industrial

- 40 -

psychological injury arising out of and occurring in the course of employment in

this matter;

4. A short stay of all trial proceedings to preserve the status quo

pending resolution of this petition (no deadlines are currently pending); and

5. Other relief be granted as the Court considers proper.

DATED: January ___, 2014 Respectfully submitted,

MANNING & KASS


By: _____________________________

Scott Wm. Davenport


CITY OF ANAHEIM

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VERIFICATION

I, the undersigned, being sworn, say: I am the attorney for the Petitioner.

I have read this document. I am informed and believed that all facts alleged in it

are true and on the ground allege that they are true. All facts alleged in this

document are true of my knowledge except as to those matters stated upon my

information or belief, and as to those matters I believe to be true. I am more

familiar with the relevant facts pertaining to the proceedings before the Workers’

Compensation Judge and the WCAB than my clients. For these reasons, I, rather

than the petitioner, verify this Petition for Writ of Review.

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct.


________________________________

Scott Wm. Davenport

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RULE 14 CERTIFICATION

Appellate counsel hereby certifies that this brief does not exceed 14,000

words in length. According to the word perfect software program, the actual

word count (including the table of contents and the table of authorities) is

_____ words.

Dated: January ____, 2014 MANNING & KASS


By:

Scott Wm. Davenport


CITY OF ANAHEIM

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PROOF OF SERVICE

I am employed in the County of Orange, State of California. I am over

the age of 18 and not a party to the within action; my business address is 19800

MacArthur Blvd., Ste. 900, Irvine, CA 92612.

On January ___, 2014, I served the document described as

PETITIONER’S APPENDIX OF EXHIBITS IN SUPPORT OF

PETITION FOR WRIT OF REVIEW - VOLUME I OF III on the

interested parties in this action by placing true copies thereof enclosed in sealed

envelopes addressed as follows:

SEE ATTACHED SERVICE LIST

† (BY PERSONAL SERVICE) I caused such envelope to be delivered,

via Nationwide Legal Courier, by hand to the offices of the addressee.

‡‡ (BY OVERNIGHT COURIER): I placed the above-referenced document(s)in (an) envelope(s) designated by the express service carrier (UPS) forovernight delivery, addressed as indicated above. I delivered said UPSenvelope to the personnel of our mail room. I am "readily familiar" with thefirm's practice of collecting and processing documents intended for UPSovernight delivery. Under that practice, after the document is delivered to thefirm's mail room, it is deposited that same day, with delivery fees providedfor, in a box or other facility regularly maintained by the express servicecarrier or is delivered to an authorized courier or driver authorized by theexpress service carrier to receive documents, for overnight delivery.

�X (STATE) I declare under penalty of perjury under the laws of the State ofCalifornia that the above is true and correct.


Desiree Funsch

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SERVICE LIST

Andrew Dhadwal † Lewis, Marenstein, Wicke, et al.20750 Ventura Blvd., Ste. 400Woodland Hills, CA 91364Tel: (818) 703-6000

Attorneys for Applicant/Respondent

† By personal service as set forth herein

Workers’ Comp. Appeals Board ‡‡Attn: Recon UnitP.O. Box 429459San Francisco, CA 94142Tel: (415) 703-4554

(2 copies per Rules of Court 8.495)

‡‡ By overnight courier as set forth herein

Ryan Soriano‡‡ Grancell, Lebovitz, Stander, et al.200 North Sepulveda Blvd., Ste. 1400El Segundo, CA 90245Tel: (310) 649-4911

Co-Counsel for Petitioner/Defendant


Workers’ Comp. Appeals Board ‡‡Attn: Hon. Mary Anne Thompson300 Oceangate, Room 200Long Beach, CA 90802Tel: (562) 590-5001

(Courtesy Copy - No Service Req. CRC 8.495)


City of Anaheim ‡‡ Attn: Britt Esquivel201 S. Anaheim Blvd., Ste. 503Anaheim, CA 92805Tel: (714) 765-5113

Petitioner/Defendant


California Supreme Court350 McAllister StreetSan Francisco, CA 94102Tel: (415) 865-7000

Via Electronic Service pursuant toCalifornia Rule of Court 8.212(c)(2)(A)

verified petition for writ of review

Documents