If you do the Crime — do the Time

A Insurance Criminal’s Conviction Appealed on Many Inept Grounds

A massive workers’ compensation insurance fraud conducted by physicians and chiropractors resulted in the conviction of Dolphus D. Pierce II only to have him file appeals on multiple useless grounds that resulted in an extremely long decision from the Court of Appeal finding none of the grounds worthy of consideration.

In The People v. Dolphus Dwayne Pierce II, F074602, Court of Appeal of the State of California Fifth Appellate District (July 11, 2019) the court found that operating as P&R Med-Legal Medical Corporation (P&R), Dolphus Dwayne Pierce, a chiropractor, and Tomas Ballesteros Rios, a physician, conspired with others to defraud various workers’ compensation insurance carriers. P&R contracted with physicians to perform cursory (if any) examinations of workers’ compensation patients at chiropractic clinics, and then dispense prepackaged medications to these patients with little or no regard for medical need.

Pierce and Rios contracted with a company to prepare and submit canned medical reports and bills to workers’ compensation insurance carriers. These bills sought payment for the medications dispensed, and for services relating to the dispensing of medications — some of which were not performed, and some costlier than the services actually performed by the physician.

STATEMENT OF THE CASE

In June 2012, Pierce and six codefendants were charged by grand jury indictment with conspiracy to commit insurance fraud. Following several demurrers and preliminary motions, the case proceeded to trial on an amended indictment, which included the same substantive, but more specific, allegations contained in the original.

The object of the conspiracy was to commit insurance fraud and pertained only to P&R.

The jury returned a verdict of guilty on count 1 and acquitted Pierce of the remaining counts. On September 16, 2016, the trial court placed Pierce on probation for five years, with the condition that he serve one year in county jail and pay $770,421 in restitution.

STATEMENT OF THE FACTS

Rios pled guilty to conspiracy as charged in count 1 and testified for the prosecution. In the mid 1990’s, while still a medical resident, Rios began moonlighting at a physician’s group as a disability evaluator for Social Security claimants, where he met Dr. Lonnie Powell, a chiropractor. The physicians’ group rented office space from Powell in Visalia, and Rios saw Social Security disability patients there two weekends a month.

Rios knew which various current procedural terminology (CPT) codes were related to the medical services provided and determined which CPT codes would be billed by PMMG for a physician’s services. According to Rios, because the cases referred by chiropractors to the physicians involved nonsurgical muscular-skeletal injuries, the injuries were similar from patient to patient. As such, Rios “already” knew what treatment would be required for the physician to manage the patient, allowing Rios to predetermine what code was necessary to bill. Unless the physician corrected the report to indicate such services were not provided, it was billed as Rios predetermined.

DISCUSSION

Conspiracy is a crime distinct from the substantive offense that is its object; it does not require commission of the substantive offense (target offense). The conspiratorial agreement is itself the essence of the crime and is what it seeks to punish. Conspiracy is “a continuing offense while the agreement continues.”

The evidence showed that Pierce and Rios, among others, agreed to defraud workers’ compensation insurance carriers by forming a medical corporation, P&R, that contracted with physicians to dispense medications to workers’ compensation patients with little or no regard for medical need; to prepare the medical reports stating reasons to support the medical appropriateness and necessity of the medications; and then billing the insurance carriers for the services not performed and medications not necessarily called for medically.

The test is whether there was one overall agreement among the various parties to perform various functions in order to carryout the objectives of the conspiracy. The evidence was clear that there was but one single conspiracy tied together as stages forming a larger all-inclusive combination, all directed to achieving a single unlawful end or result. There was no error on the part of the trial court in rejecting Pierce’s motion to compel an election between conspiracies.

It is undisputed that Yang, who was originally subject to prosecution for the identical offenses charged against Pierce, was an accomplice. Through Yang’s testimony, the jury learned that Yang, a physician, met Pierce, who explained in general the physician consultation position he was interested in and some of the paperwork involved. Yang would be paid per diem.

In a criminal case, a jury verdict must be unanimous. The jury also must agree unanimously the defendant is guilty of a specific crime. As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. The decision to charge Pierce with only one conspiracy was a prosecutorial charging discretion that is not reviewed by an appellate court. The exercise of that discretion includes questions of prosecutorial policies and judgment, not questions of fact for the jury to determine.

Expert Opinion on the Law

Pierce contended the trial court erred when it admitted Attorney James Fisher’s testimony regarding standards and practices relating to workers’ compensation claims. The prosecution asked that Fisher be allowed to testify as an expert on the applicability and interplay of various guidelines and rules in the workers’ compensation system.

An expert witness may provide testimony that speaks to the ultimate factual issue in the case, such as what caused an injury at issue, but cannot provide an opinion as to a legal conclusion, such as whether there was sufficient causation between an alleged breach of duty and resulting injuries. The court correctly ruled that Fisher could testify as to the department standards and practices of the workers’ compensation system and whether the billings and reports in question met such standard and practices. Such testimony was relevant to the question of “materiality,” an element of the insurance fraud offense. Since Fisher did not give any opinion as to whether Pierce had knowledge of the deficient P&R billings and reports, nor whether the deficiencies in the P&R billings and reports were due to an intent to defraud.

The issue is not whether the insurance companies were entitled to restitution for payments made on fraudulent claims, as they clearly were. Instead, the issue is whether the amount calculated by the trial court fairly apportioned costs to Pierce. We conclude ample evidence supports the trial court’s calculations.

The judgment was affirmed.

ZALMA OPINION

It seems bad enough to commit the crime of insurance fraud and make excessive profits from the criminal conduct. Insurance criminals are simply not willing to accept the fact that they were caught and need to do the time required by the trial judge. Because they have available the funds they illegally obtained they can afford lawyers to bring the type of appeal here that resulted in more than 50 paragraphs of analysis that established the jury was right, the defendant was guilty and must pay the restitution ordered or spend the entire sentence in jail.

 


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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