This week on Work Comp Matters, Steve, Mike, Ted, Robert, discuss Dr. Bruce Fishman and an email from his attorney, Howard Kapp, his felony conviction & workers compensation issues. Also, John Scalia from Munich, Germany and much much more.
In preparation for this show many people told me what guests I should and should not have and what I should and should not say and even not to do the show because I could be sued. After giving it a lot of thought I only came to one conclusion … F–K It!
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Email from Dr. Bruce Fishman’s Attorney, Howard Kapp
From: Howard Kapp <email@example.com>
Date: January 28, 2019 at 2:28:52 PM PST
To: WCexaminer@aol.com, Mona Nemat <firstname.lastname@example.org>
Subject: WCAB vs Fishman; webcast; Nazemi/Tym; defamation
Dear Mr. Appell,
We had the opportunity to speak last week when you called me initially claiming that you are interested in the multiple continuances of the Worker’s Compensation issue involving Bruce Fishman, M.D. I was very curious how you discovered this seemingly obscure matter and how you seem to be focused on the least controversial or newsworthy item possible. This later became clear to me when you informed me that you thought that Labor Code §139.21 was overinclusive and otherwise bad policy.
If so, I don’t know why you didn’t focus on the obvious newsworthiness of the problem with using an overinclusive statute to restrict the practice of a physician who was convicted of a crime nearly 4 decades before. That, plus the fact that Dr. Fishman has performed in the Worker’s Compensation system for nearly 3 decades, without a single complaint of note, would seem to be, on its face, much more newsworthy because it centers around a statute which, read expansively, does not serve the public interest. No one questions that the legislature and governor have the right to protect the public from people who have been convicted of crimes that are both relevant and relatively recent, but this seems to be a perfect example of the type of intractable hounding of people because of ancient misbehavior, such as that in Les Miserables or the Scarlet Letter. Indeed, the Supreme Court of California has noted that in the past. But since you are not an attorney and I am preparing for the hearing this week (which you know), I am not going to spend my time preparing a legal brief for you.
During our initial conversation, I asked you if you knew Patrick Nazemi or of any of the other related litigation. You did not ask me who he was, or how to spell his name, or about the other related litigation. My assumption that the time was that the reason you did not ask was that you already knew of that individual and his ongoing extortion and obsession with Dr. Fishman. Nonetheless, I was willing to talk to you and give you the benefit of the doubt. I was willing to provide you with some background information.
By the end of our conversation, which eventually included Mona Nemat, who you know, you agreed that it would be wise to postpone any public disclosure or discussion until sometime after the upcoming hearing and you had had some additional time to look into the larger policy issues of hounding physicians for ancient items. You also indicated that you needed to check your sources and your facts after you were set straight on a couple of matters. You indicated that there was no need to rush.
I am informed that you contacted Mona this morning and had advised her that you intended to go forward with the webcast on Wednesday night and that you were now including Patrick Nazemi and/or his attorney Ronald Tym, whose sole source of income appears to be this obsession with Dr. Fishman. It is curious how you are now acknowledging knowledge of these people that, only a few days ago, you claimed not to know.
You did inform Mona that Nazemi/Tym had initiated the contact and controversy with the DIR by way of two letters. I have no doubt that they did this, but I am curious how you have this information. It is not readily available but can be ascertained through a Public Records request. Given how you told me that you hardly knew about Mr. Nazami and his attorney during our conversation last week, I can only surmise that perhaps your relationship with Nazemi/Tym goes back further than you previously indicated.
While I recognize that your webcast has a seemingly microscopic footprint (it seemed to have about 100 listeners per episode), it seems that you are trying to create content for Nazemi/Tym to continue to press the one-man Nazemi-funded vendetta against Dr. Fishman based on an ancient felony. As far as I can tell, there is probably some payment and/or other arrangement between you and the Nazemi group that has caused you to act as their de facto agent and, under the guise of “journalism”, to continue to spread the falsehoods, and irrelevant facts, about Dr. Fishman. Let me disabuse you of any assertion that Nazemi is nothing more than a bully and extortionist because Dr. Fishman refused to knuckle under to his outrageous behavior.
Let me provide you with a little bit of background. For many years, Dr. Fishman, having obtained appropriate board certification after his one-time 38-year-old felony, was evaluated, as required by law, by the Medical Board of California in 1990 and allowed to return to the practice of medicine. The MBC was fully aware of his 1982 felony but recognized, in 1990, found him to be fully rehabilitated and no longer a danger to the public – and no one has ever asserted that their confidence was misplaced or violated. At that time his license was returned to Dr. Fishman, with some restrictions.
All of those residual restrictions were removed in 1994 by the Medical Board, which was frankly very complementary. In the decades since, Dr. Fishman has acquired quite a positive reputation and practice since then. He completed his training in occupational medicine and obtained full board certification in that recognize medical specialty. He has engaged in active practice, including surgeries, in all of those intervening years and without further ado. Dr. Fishman is the textbook example of a rehabilitated person, as objectively determined by the authorities and not by his vengeance-motivated obsessive pursuer, Patrick Nazemi, his self-appointed Inspector Javert (except without the smokescreen of a legal justification).
In approximately 2012, Patrick Nazemi, an unlicensed self-proclaimed medical practice administrator, convinced Dr. Fishman to allow him to manage a portion of Dr. Fishman’s Worker’s Compensation practice. The term of the contract was initially one year, allowing either individual to terminate the contract according to its terms thereafter. Nazemi made a gigantic amount of money from his relationship with the already-well-known and well-regarded Fishman – for Nazemi, a giant “cash cow”.
After approximately 18 months, including months of increasing dissatisfaction with Mr. Nazemi’s services, Dr. Fishman terminated Mr. Nazemi’s services. Mr. Nazemi was clearly unhappy with that and, several months later, as the residual receivables dissipated, Mr. Nazemi lured Dr. Fishman over to his office on the pretense of discussing some logistical issues. At that meeting, Mr. Nazemi demanded that Dr. Fishman pay him $500,000 or he would publicize Dr. Fishman’s then-32-year-old felony and ensure that it had the widest possible distribution in the Worker’s Compensation community.
Since that was prior to the 2015 adoption of Labor Code §139.21, the sole purpose of this extortion was to inflict the maximum emotional distress upon Dr. Fishman. This is not my opinion, but the now-court-confirmed finding of a jointly-selected arbitrator. Interestingly, that arbitrator would later describe this is “certainly an ambush of epic proportions; here Dr. Fishman is lured to a meeting to discuss outstanding accounting issues, only to be confronted with a baseless demand for payment and a threat of exposure.” The arbitrator would later find that “the actions taken by Mr. Nazemi were extreme and outrageous and not only had the probability of causing [Dr. Fishman] emotional distress, but actually did.”
Several months after Dr. Fishman refused to pay Nazemi’s $500,000 blackmail, Mr. Nazemi, through other attorneys, initiated a totally meritless binding arbitration, originally claiming $2.4 million in “damages”. Nazemi’s shell company claimed — throughout this litigation — that he was entitled, having stopped all work on the agreed end date, to “damages” of $90,000 a month (over $1 million per year) for the remainder of Dr. Fishman’s career because, supposedly, Dr. Fishman’s notice of termination was done “wrong”. Nazemi and his attorneys pursued this legally ludicrous claim until the very end.
After several years of highly contentious litigation, the arbitrator found that all of the claims made by Mr. Nazemi and his attorneys were meritless, and awarded Dr. Fishman $113,400 in damages, along with another $418,257 in attorney’s fees and $96,849.31 in legal costs. This was nasty, brutal litigation, involving a host of claims asserted by Nazemi and his earlier lawyers. All of them were spurious.
Eventually, the arbitrator conducted a formal 5-day trial and, after allowing months and hundreds of pages in post-trial briefs, found that every claim by Nazemi was factually meritless and legally wrong. The arbitrator found, for example, that all of the innumerable claims that Dr. Fishman had dishonored the contract by taking more than his contractual share of residuals were meritless. He found that Fishman was the victim of Nazemi’s breach of contract and that, as above, that Nazemi was an unabashed extortionist. In fact, Nazemi himself had largely proudly admitted to his extortionist behavior in his deposition, apparently uninformed that blackmail is both a crime and tortious.
Nazemi promptly challenged the lawfulness of the arbitration that he initiated in the Superior Court. As usual, he lost on every ground. He has filed an appeal (but did not post an appeals bond) so we are attempting to collect on the judgment which is now approaching $1 million as he seems to be shifting money amongst his corporate shells to evade collection. Since all litigants have a right to appeal from the Superior Court, that appeal has been largely processed and we are awaiting an oral argument in the Court of Appeal next month. If fully expect to prevail there too, like we have prevailed everywhere else. Nazemi, who has a lucrative business, has not “won” on the merits of any of the innumerable claims he has pursued against Dr. Fishman.
Mr. Nazemi also filed another lawsuit, using Mr. Tym, in the Superior Court, days before he knew that the arbitration award would be finalized. He is seeking the identical damages that he had claimed and lost in the arbitration matter. After he compelled us to spend time preparing a demurrer to that action, he dismissed that action just in time to avoid the filing of our demurrer.
He also filed yet another lawsuit, at the same time, claiming to be a whistleblower representing the interests of a slew of public entities (including the State of California) and insurance companies; he delayed serving or notifying Dr. Fishman of that lawsuit for about a year. While his lawyer offered the State of California and many other entities the opportunity to join that lawsuit, every one declined. This is, as the judge would later comment, another Nazemi/Tym lawsuit, rehashing and relabeling the same arguments he lost in arbitration.
In that lawsuit, his lawyer, Mr. Tym, asserted 2 causes of action. One of those causes of action was dismissed, on demurrer, permanently by the Superior Court judge (as lacking any legal merit, even theoretically). In overruling our demurrer regarding the other cause of action, the Superior Court judge indicated that his decision was only based on technical flaws in our demurrer paperwork and, on the record, told Mr. Tym that it was extremely likely that he (the judge) would dispose similarly of the remaining claim, once it was properly presented, on its total lack of legal merit, to him.
The judge has repeated that, on the record, several times and noted that this meritless lawsuit was a rehash of the same allegations rejected by the arbitrator on the merits. Ultimately, the judge put a stay on the remnant of that lawsuit pending the outcome of the frivolous appeal from the ratification of the arbitration award. We fully expect that, once the appeal is resolved after the February hearing, this lawsuit will die as well.
Because of the pendency of these meritless lawsuits and Nazemi’s last-ditch appeal, there is a considerable public record of the above, including that Nazemi is an adjudicated extortionist and that his claims have uniformly been rejected by neutrals.
I should also note that Mr. Nazemi, and probably Mr. Tym, made a point of distributing photocopies of their meritless lawsuit claiming to represent the State of California and others. Apparently, they placed these photocopies into envelopes – without a return address – addressed to attorneys, insurance companies, and regulators in the Worker’s Compensation universe with the specific intention of confusing them to believe that the State of California is pursuing fraud and/or criminal charges against Dr. Fishman, all of which is nonsense.
I have no doubt that Mr. Nazemi and/or Mr. Tym had something to do with initiating the present Worker’s Compensation action, although it is abundantly clear that they were trying to undermine Dr. Fishman by dredging up this nearly 40-year-old matter. I do note that the Worker’s Compensation authorities, at least until now, have asserted that this statute applies, without exception, to ex-felons, although I have been informed by their attorneys and judges that there have been no remotely similar cases. I am informed that there was, and may still be, a serious debate within their own ranks, of the wisdom and justice of pursuing Dr. Fishman pointlessly. To the contrary, it appears that the relevant adversaries were all previously aware of Dr. Fishman as one of the most highly respected physicians in the Worker’s Compensation system. The issue here appears to be a legal and political issue, particularly since there is no assertion that Dr. Fishman represents a threat to the system.
You are now advised that Nazemi/Tym have been hounding Dr. Fishman for years based on these ancient allegations and that Nazemi has tried to profit through them by direct, unambiguous extortion and by an attempt to seek damages against Dr. Fishman solely based on his ancient felony, which, of course, had nothing to do with Nazemi.
If and when you want to have a discussion – after the timely processing of the Worker’s Compensation matter, including its anticipated involvement in the court system – regarding the wisdom of Labor Code §139.21 in disqualifying this unlimited group of physicians and other providers – I, or Mona, would be happy to discuss that with you. We are not going to get involved with you in or around the time of a pending hearing for which we actually have to prepare.
If you want to put Mr. Tym on your webcast, we cannot stop you, but we predict that Mr. Nazemi will instruct him to use your broadcast for rebroadcast for his own purposes – that is, to carry out his long-standing vendetta and extortion threat against Dr. Fishman. You will, now that you know the background, have a duty to verify their anticipated falsehoods; if you allow defamations and/or invasions of privacy, you will be held, to that extent, jointly responsible for his anticipated misuse. I suggest that you act wisely and do not participate in a premature public disclosure of information which you have good reason to know is false and, as a matter of ancient history, not newsworthy or relevant. For now, I will consider this anticipated webcast to be evidence of your cooperation with Nazemi/Tym’s campaign of slander.
Of course, my opinion will change if you act appropriately and defer this matter until you have more information and verified the information, much of which is in the public domain.
Email from Ronald Tym:
On Jan 29, 2019, at 4:13 PM, Ronald D Tym <email@example.com> wrote:
I understand that Mr. Kapp has sent you a long-winded in email. I wish to respond.
You will find that I am not as verbose as Mr. Kapp, perhaps because I am not trying to distract. Mr. Kapp tries to obfuscate the only key facts applicable to Dr. Fishman’s suspension:
- Dr Fishman was convicted of a felony
- Fishman admitted that the felony was related to the practice of medicine (See attachments to this Email, which are the Complaint filed by the Michigan Board of Medicine alleging that the felony conviction related to the practice of medicine and the Stipulation from Dr. Kapp agreeing that the allegations of facts and law in the Complaint are true).
Mr. Kapp claims that Dr. Fishman is entirely rehabilitated and that he has a supposedly unblemished record and should not be suspended. However, Mr. Kapp purposefully ignores that Dr. Fishman lied on his applications to the DWC in 2003, 2005, 2007, 2009, 2011 and 2013. (I previously provided you with these applications in which Dr. Fishman falsely states under penalty of perjury that he has never been convicted of a misdemeanor or felony related to the practice of medicine). Those are recent acts and are not the acts of a rehabilitated man. It is no justification that Dr. Fishman lied because he knew he would not be appointed as a QME otherwise. Indeed, that makes it even more damning because his obvious intent was to mislead to serve his own economic ends. (As an aside, I was surprised that in your brief written article on this matter you stated that Dr. Fishman was successfully reappointed in all the above years but did not mention that such reappointment was based upon his written lies).
These are not mere technicalities. The California workers compensation system depends upon the integrity of its participants, particularly the doctors who serve as QME’s and AME’s and who are supposed to be above reproach. A felon who continues to lie under penalty of perjury does not meet these qualifications.
Mr. Kapp tries to distract from the basic facts above by throwing as much shade as he can upon me and Mr. Nazemi. It reminds me of an old adage learned by lawyers: “When the law if on your side, pound the law. When the facts are on your side, pound the facts. When neither are on your side, pound the table.” Mr. Kapp’s email amounts to a lot of table pounding.
I am happy to go into detail as to how and why Mr. Kapp’s allegations against Mr. Nazemi and me are patently false if you so desire, but will not do so here because his allegations are irrelevant and meant only to bully and distract you from the only relevant facts, which are those set forth above.
Mr. Kapp’s insults and bullying statement are obviously intended to convince you to not publish the truth about Dr. Fishman. I note that besides Mr. Nazemi and me, even you were not beyond Mr. Kapp’s insults, when he made such offensive statements as “your webcast has a seemingly microscopic footprint 9it seemed to have about 100 listeners per episode).” This gives you an idea of the type of man we are dealing with.
Ronald Tym, Esq.
The Tym Firm