Griffin v. Berlin CA5

Filed 11/18/14 Griffin v. Berlin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ANTOIAN GRIFFIN, F068780 Plaintiff and Appellant, (Super. Ct. No. 12CECG01065) v.

ALEX BERLIN, OPINION Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Antoian Griffin, in pro. per., for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney and Gary A. Hunt for Defendant and Respondent. -ooOoo- Appellant Antoian Griffin, retained respondent Alex Berlin, to represent him before the Workers’ Compensation Appeals Board. Appellant claimed he was entitled to

workers’ compensation benefits for a low back injury sustained during a one day job. However, based on appellant’s testimony and medical records, the Administrative Law Judge (ALJ) determined that appellant did not sustain an industrial injury. Appellant then filed the underlying action for damages alleging that respondent committed legal malpractice and breached his fiduciary duty. Appellant claimed that respondent did not submit all of the necessary evidence to the ALJ and permitted defense evidence to be admitted without objection. On respondent’s motion, the trial court granted summary judgment in his favor. Appellant contends respondent did not meet his burden of proof to show summary judgment was proper. However, appellant has failed to meet his burden to demonstrate reversible error on appeal. Accordingly, the judgment will be affirmed. BACKGROUND Appellant was hired as a temporary employee and worked one day, December 7, 2009. Although appellant claimed that he experienced severe low back pain the next day, he did not seek treatment until December 11, 2009. Appellant notified the employer of the alleged industrial injury on December 15, 2009. Thereafter, appellant retained respondent to represent him in pursuing a claim for workers’ compensation benefits. John Branscum, M.D., examined appellant and prepared a qualified medical evaluation. Dr. Branscum reviewed appellant’s medical records pertaining to this particular injury. Appellant described the event, his current symptoms, and past medical history during the examination. Dr. Branscum noted that appellant 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 appellant “strained his back on December 7, 2009 and therefore, the injury is AOE/COE,” i.e., the injury arose out of appellant’s employment.