APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. (Super. Ct. No. SCD200806)
The opinion of the court was delivered by: McDONALD, J.
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Thomas Edward Brown pleaded guilty to one count of misdemeanor workers' compensation fraud. Brown admitted to unlawfully making knowingly fraudulent statements to obtain workers' compensation benefits in violation of Insurance Code section 1871.4, subdivision (a)(1). The court placed him on three years' probation.
On January 28, 2010, the court held a victim restitution hearing and thereafter ordered Brown to pay the victim, Zenith Insurance Company (Zenith), $151,612.20 in reimbursement for its workers' compensation expenditures for his medical expenses and disability payments purportedly made as a result of his fraudulent statements. Brown appeals, claiming the restitution amount should be reduced by the amounts Zenith was obligated to pay for his work-related injury that was unrelated to his fraudulent statements.
On September 26, 2001, while employed for the Ramada Plaza Hotel in San Diego, Brown filed a workers' compensation claim for injuries allegedly sustained from a slip and fall that occurred in the kitchen while at work on September 21, 2001. Brown claimed he slipped on liquid on the floor and sustained injuries to his forearms, ribs, and head. Brown was terminated from employment for unrelated reasons soon thereafter.
On November 7, 2001, an orthopedic surgeon examined Brown. He told the doctor he sustained an injury to his left knee during a work-related accident on September 21, 2001. Brown also told the doctor he had no pre-existing injuries to that knee. In November 2001, Zenith authorized and paid for Brown's arthroscopic surgery to his left knee. Zenith also paid for Brown's workers' compensation disability, and other fees.
In October 2003, Zenith was notified that Brown had a pre-existing injury to his left knee. Brown had filed an earlier workers' compensation claim with a different insurance carrier in 1998. Brown also saw a doctor relating to pain in his left knee in February 2000. The doctor notified Brown that he had a tear to his meniscus, and recommended surgery. Had Brown disclosed his earlier knee injury, the Zenith workers' compensation claim would have been apportioned based on the prior injury. Based on the above facts, the People in 2007 charged Brown with a violation of Insurance Code section 1871.4, subdivision (a)(1).
People v. Prosser (2007) 157 Cal.App.4th 682, 691 holds that "[o]nce the victim has made a prima facie showing of his or her [economic] loss [ incurred as a result of the defendant's criminal acts], the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim." The defendant has the burden of rebutting the victim's statement of losses. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
Brown asserts that the court abused its discretion when it failed to offset the restitution award by that portion of expenses attributable to his alleged claim of a September 21, 2001, knee injury. The court stated it "is not required to go into some form of analysis of whether expenses are appropriately paid due to one or another injury, as the defendant risks the consequences and burden of paying restitution when he accepts responsibility for his criminal conduct by entering a guilty plea on the record." Brown contends the court's rationale is contrary to the holding in People v. Giordano (2007) 42 Cal.4th 644, in which a court was required to perform "complicated calculations" before entering a victim restitution order. According to Brown, Zenith "never presented any evidence" placing Brown's current workers' compensation claim in doubt. Instead, the restitution order was based on evidence of misrepresentation by Brown to several doctors and a deposition statement that he had ...