Remember the State Compensation Insurance Fund lawyer who couldn’t find the off button on his cell phone? He is Nicholas DiBella, a Redding-based State Fund attorney, who was arguing a case before a workers’ comp judge in 2006 when his cell phone went off (see Sanctions ... ).

The judge slapped him with a $50 fine, and DiBella challenged the sanction – through the full Workers’ Comp Appeals Board panel all the way up to the California Appellate Court. He lost at every level.

But it may not be over. DiBella tells Workers’ Comp Executive he hasn’t ruled out taking it to a higher court.

State Fund’s legal team tells Workers’ Comp Executive that despite DiBella’s attempt to stand on principle, State Fund did not assist him in this endeavor. Instead, according to a thorough investigation conducted by Workers’ Comp Executive and after discussions with its legal staff, State Fund asserted its own principles by refusing to spend any money on this arguably frivolous lawsuit. In fact, at one point, DiBella was told to go pound sand.

“I think I was correct. I thought the judge was being silly, so I was going to be difficult.”
—Nicholas DiBella,
State Fund attorney

DiBella doesn’t see the case as frivolous. “I think I was correct,” he tells Workers’ Comp Executive. “I thought the judge was being silly, so I was going to be difficult.”

We asked State Fund a series of questions, including the status of DiBella’s employment, then and now, who paid the filing fees in the case, whether State Fund resources were used to prepare the case, and whether State Fund paid the $50 fine.

Eric Jones, staff counsel with State Fund, responded promptly to our request but left some of the questions unanswered. We called Jones at State Fund for clarification. He says State Fund didn’t pay the $50, a fact confirmed by Carole Newman, State Fund general counsel.

“I assume Mr. DiBella paid it himself. If money is expended by State Fund, it would have produced a record…there is always a paper trail…There was no record to produce.”
— Eric Jones, State Compensation Insurance Fund

“I assume Mr. DiBella paid it himself. If money is expended by us, it would have produced a record…there is always a paper trail…There was no record to produce,” Jones tells Workers’ Comp Executive.

According to documents supplied by State Fund, the sanction was included in an underlying case before the Workers’ Compensation Appeals Board, Robert White v. Gerald Brooks and Steel Work Fabrication and State Compensation Insurance Fund. DiBella had the $50 yanked after his first recon, but it was reinstated after the WCJ, Judge Sharyn Sala, made her case. When his follow-up Petition for Reconsideration was denied, he appealed to the California Appellate Court.

According to State Fund, DiBella used State Fund resources to file the petition for reconsideration. “However, State Fund did not file a Writ of Review at the Court of Appeal. DiBella filed an appeal on his own behalf, In Propria Persona…State Fund does not have any records to indicate that State Fund paid any fines or monetary expenses in either the Petition for Reconsideration or the appeal of this matter,” according to State Fund.

DiBella Makes His Case

DiBella says the cost of the recon and the appeal was more than the $50. “It cost me out of pocket for all the copying work because I couldn’t do it here,” he says, adding, “I did it on my own time.”

According to State Fund spokeswoman Jennifer Vargen, no filling fees are associated with a Petition for Reconsideration or the Writ filed at the Court of Appeal level. “State Fund did not pay anything,” she says.

Regarding the appeal, State Fund told DiBella he was on his own.

Notes Newman, “As I understand it, [the case] came to our appellate group and we rejected it, [but he pursued] it on his own. It was something that was important to him in his practice.”

“As I understand it, [the case] came to our appellate group and we rejected it, [but he pursued] it on his own. It was something that was important to him in his practice.”
—Carol Newman,
general counsel, State Fund

DiBella says he didn’t push it with State Fund, but he wishes he had done a better job on the case. He might have had a better shot.

“It was a bigger job to put the writ together than I realized,” he says.

A record from the California Appellate Court shows that DiBella filed a Petition for a writ of review in February 2008. It was denied in April 2008.

DiBella, who’s been with State Fund for 20 years, says he’s toying with the idea of taking it to the federal level on constitutional grounds. He argues that the judge had a rather informal, haphazard rule regarding the ringing of cell phones, which he says is not sufficient grounds for the sanction.

“You have to have a rule about cell phones. [It] wasn’t a hard-and-fast rule. It was never posted anywhere that that was the rule,” Di Bella says. “I would argue [at the federal level] that she did not hold a hearing, and I have a right to be heard.”

He says it’s happened to other people in the hearing rooms and usually nothing happens. He concedes that it’s “a kind of known” that Judge Sala is strict. He still says she’s wrong, but there are no hard feelings.

Douglas Moore Jr., both a former chairman of the Workers’ Compensation Appeals Board and superior court judge, as well as editor of Appeals Board Reporter published by Providence Publications, says cell phones were a problem when he was on the bench.

“I used to have a bailiff collect them all and ransom them off after the hearing,” he says, adding that based on his knowledge of the DiBella case, DiBella didn’t even apologize to the judge. Had he done that, things might have been different.

“I don’t think there is any personal animosity toward me. I have none toward her. I don’t think she did it out of spite or to get me. I don’t think she did it for a good reason,” DiBella says.

And the fine?

“I haven’t paid the $50,” he says. “They haven’t come after me.”

He says the fine is part of another file that’s now a 132(a), where State Fund can’t be a party. “That issue is still out there. The file has never come back,” he says. If it does, he’ll contemplate a federal case.

“If I’m feeling ornery,” he says.