Antoian Griffin, retained Fresno attorney Alex Berlin, to represent him before the Workers’ Compensation Appeals Board. Griffin claimed he was entitled to workers’ compensation benefits for a low back injury sustained during a one day job on December 7, 2009. Although Griffin claimed that he experienced severe low back pain the next day, he did not seek treatment until December 11, 2009. He notified the employer of the alleged industrial injury on December 15, 2009.
John Branscum, M.D., examined Griffin and prepared a qualified medical evaluation report. Dr. Branscum reviewed medical records pertaining to this particular injury. Griffin described the event, his current symptoms, and past medical history during the examination. Dr. Branscum noted that Griffin denied having any prior symptoms, injuries or disability to his low back; having any prior work-related injuries; or being the recipient of any prior industrial or nonindustrial awards or settlements. Based on his examination and the information provided to him, Dr. Branscum concluded that Griffin “strained his back on December 7, 2009 and therefore, the injury is AOE/COE,” Griffin began receiving treatment for a back injury through the Pain Relief Health Center. Appellant’s treating physician placed him on total temporary disability with a diagnosis of lumbar spine disc bulge and lower back pain.
However at an MSC prior to the WCAB trial, the medical records submitted by the defense revealed that: Griffin suffered a work-related back injury in 1985 and received workers’ compensation benefits; sought treatment for chronic back pain in 1990; received care for pain in the lumbar area in 2001; and underwent an evaluation for persistent back pain, “felt to be of musculoskeletal origin,” in 2006. ,
After receiving the above evidence, attorney Berlin initiated settlement negotiations in the workers’ compensation matter. The defense offered $13,000 to settle. Mr. Berlin conveyed this offer to Griffin multiple times and recommended that he accept it. Griffin refused this offer and denied the existence of the medical records and claimed that he never had an earlier back injury. Griffin dismissed Berlin as his attorney after trial, but before the workers’ compensation matter was ruled on.
The WCJ found that Griffin did not meet his burden to establish, by a preponderance of the evidence, that he sustained an industrial injury to his back on December 7, 2009. The WCJ questioned his credibility noting that he changed his testimony several times during trial and gave a false and contradictory medical history to Dr. Branscum. The WCJ further observed that, despite his denials, it was clear from the medical records that he sustained a substantial industrial back injury in 1985 that kept him off work until 1988.
Griffin then filed civil action against his worker’s compensation attorney in Superior Court alleging that Mr. Berlin committed legal malpractice and breached his fiduciary duty. The trial court granted summary judgment in Berlin’s favor. The court concluded that Mr. Berlin met his burden of showing there was no evidence that either he or his associate Christopher White fell below the standard of care or breached any fiduciary duty in representing Griffin. The court further found that Griffin did not meet his burden to show the existence of a triable issue of material fact as he did not present any admissible evidence in opposition to the motion. Griffin appealed the dismissal of his malpractice case. The Court of Appeal affirmed the dismissal in the unpublished case of Griffin v Berlin.
Griffin based his legal malpractice claim on two alleged errors committed by respondent Alex Berlin. According to appellant, respondent did not present certain evidence as requested by appellant, specifically a June 3, 2011, letter from Dr. Justin Paquette stating that appellant’s injury was attributable to the December 7, 2009 injury and the two most recent reports from appellant’s treating physician. Appellant further argues that respondent erred by failing to object to the admission of appellant’s medical records that predated the accident.
In support of his summary judgment motion, respondent Berlin submitted the expert declaration of Thomas Tusan, an experienced workers’ compensation attorney. Tusan opined that neither respondent nor his associate fell below the standard of care for providing legal services to applicants before the Workers’ Compensation Appeals Board. Specifically, Tusan noted that the letter from Dr. Paquette was duplicative of the report from Dr. Branscum and contained the same inherent flaw in that it was also based on appellant’s self report that he did not have any prior injuries. According to Tusan, the remaining documents were duplicative and were created after discovery was closed. Tusan further explained that there were no grounds for objection to the admission of appellant’s earlier medical records.
Tusan’s declaration demonstrated that Griffin’s representation did not fall below the standard of care and thus negated his legal malpractice claim. In opposing the motion, appellant failed to submit any admissible evidence and thus did not establish the existence of a triable issue of material fact. Accordingly, the trial court properly granted summary judgment.