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Use of the Fifth Amendment in Workers' Compensation

Posted by Sure S. Log on Mar 20, 2018 5:00:00 PM

The Fifth Amendment to the United States Constitutes protects individuals from being forced to testify against themselves. Although the Fifth Amendment itself states that a person shall not "be compelled in any criminal case to be a witness against himself," it has been held that, "It also privileges a person not to answer official questions in any other proceeding, civil or criminal, formal or informal, where he or she reasonably believes the answers might incriminate him or her in a criminal case." (Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 714.) Accordingly, the Fifth Amendment privilege against self-incrimination also is recognized in workers' compensation proceedings.

Defendants, of course, generally have a due process right to cross-examine an injured worker in relation to a workers' compensation claim. (See Ogden Entertainment Services v. WCAB (2014) 80 CCC 1.) So, are there any consequences for an injured worker who "pleads the Fifth" in response to questions relating to a workers' compensation claim? Does a defendant have any remedies?

In older civil cases, the Court of Appeal held that a party to a civil action may not invoke the Fifth Amendment on matters directly relevant to his or her recovery. One court explained, "The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation." It stated that a litigant "cannot have his cake and eat it too." (Newson v. City of Oakland (1974) 37 Cal. App. 3d 1050, 1055.) Furthermore, in Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 117, the California Supreme Court stated that "a party seeking civil relief in the courts may not refuse on the grounds of the privilege to testify on matters relevant to his recovery."

But in People v. Holloway (2004) 33 Cal. 4th 96, 131, the California Supreme Court overruled Shepherd in part because it was inconsistent with Evidence Code § 913, which states in part that "no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding." It also held that Evidence Code § 913 applies in both criminal and civil cases.

Following Holloway, in some cases, the WCAB continued to find that there could be negative consequences against applicants who invoked the Fifth Amendment. In Vargas v. Select Staffing, 2010 Cal. Wrk. Comp. P.D. LEXIS 548, the WCAB found that Hollowaypartially overruled Shepherd only with regard to the inference that may be drawn from exercise of the privilege. The WCAB held that although it could not compel the applicant to testify in violation of her privilege against self-incrimination, there was an equally compelling constitutional guarantee prohibiting it from awarding her benefits without according the defendant the right to cross-examine her, present rebuttal evidence and, generally, to defend against a claim while allowing the applicant to hide behind a "cloak of privilege." The WCAB instructed that an applicant's case could be dismissed if he or she did not answer "directly relevant" questions.

In two recent cases, however, the WCAB has refused to penalize applicants who asserted the Fifth Amendment right against self-incrimination. In Camacho v. Pirate Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 531, the WCAB held that a WCJ erred when he drew an adverse inference because an applicant, following the advice of his attorney, asserted his privilege against self-incrimination with respect to questioning about his Social Security number. It explained that under Cal. Code Regs. Title 8 § 10400(h), disclosure of an applicant's Social Security number is voluntary, not mandatory, and that failure to provide the number will have no adverse consequences. It also found that working under different Social Security numbers did not reflect on the applicant's credibility or the legitimacy of his claim.

Similarly, in Shemet v. Perry, 2018 Cal. Wrk. Comp. P.D. LEXIS 22, the WCAB upheld a WCJ's finding that an applicant suffered a compensable injury based on the QME's report, and that the defendant was not denied due process, even though it could not cross-examine the applicant at trial because he claimed his Fifth Amendment rights. The WCAB found that the defendant did not offer proof at the time of trial as to what questions it sought to ask, but were prevented from asking, that were directly relevant to the defense of the applicant's claim. It found that the defendant did not claim it was prevented from cross-examining the applicant during his deposition regarding the allegedly illegal activities. It also found that the defendant did not offer the applicant's depositions into evidence at trial or attempt to have them introduced once he invoked the Fifth Amendment privilege. The WCAB concluded that the defendant failed to exercise diligence in pursuing its rights.

It is clear that the WCAB may not make an adverse inference based on an applicant's assertion of the Fifth Amendment right against self-incrimination. But it is not clear whether other remedies, such as dismissal, might be warranted. Camacho and Shemet did not reject the WCAB's decision in Vargas holding that an applicant's claim may be dismissed if he or she fails to answer directly relevant questions, but found that defendants in those cases failed to establish that the applicants failed to answer directly relevant questions.

So, although this issue will require further legal development, defendants seeking to assert that they are prejudiced by invocation of the Fifth Amendment must be prepared to show how the required information is directly relevant, and how they diligently pursued the information.

Topics: Case Law Updates

Case Law Updates for March 2018

Posted by Michael W. Sullivan on Mar 5, 2018 8:00:00 AM

To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.

CHAPTER 5: INJURY

In Benitez, Quezada v. AG Force, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 580, the WCAB relied on circumstantial evidence to find that an employee sustained a compensable injury from a spider bite that resulted in the development of cellulitis and ultimately caused his demise.

In Online Graphics and Finishing v. WCAB (Puccio) (2017) 83 CCC 113 (writ denied), the WCAB held that an applicant’s stroke was a compensable consequence of an industrial injury because treatment of his atrial fibrillation was withheld in order to treat the industrial injury. 

CHAPTER 6: STATUTES OF LIMITATIONS 

In Griffin v. County of San Bernardino, 2018 Cal. Wrk. Comp. P.D. LEXIS 13, the WCAB held that an applicant’s claim for a cumulative trauma injury to his ears while employed as a fire captain was not barred by the statute of limitations. 

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CHAPTER 7: MEDICAL TREATMENT

In Ghattas v. O'Reilly Auto Parts, 2018 Cal. Wrk. Comp. P.D. LEXIS 1, the WCAB held that that when an employer denies a claim within the 90-day period provided by LC 5402(b), its responsibility to provide medical treatment pursuant to LC 5402(c) ends, and it is not required to perform UR of any pending requests for authorization (RFAs).

In Hall v. Western Medical, 2017 Cal. Wrk. Comp. P.D. LEXIS 581, the WCAB held that an employer’s UR determination was untimely, and that it had jurisdiction to award companion home care requested by a treating physician when the defendant did not complete the UR within the 72-hour time frame for an expedited review under LC 4610. 

In Wyant v. American Medical Response, 2017 Cal. Wrk. Comp. P.D. LEXIS 587, the WCAB awarded an applicant spinal surgery that was denied earlier by utilization review (UR). After a second request for authorization, a subsequent UR determination found it medically necessary following a documented change in material facts under LC 4610(k). 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB held that an applicant was entitled to temporary disability benefits based on the opinion of his new treating chiropractor, even though he was released from care without ratable disability or the need for future medical care by an earlier physician.

In Vargas v. Excel Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 586, the WCAB vacated a WCJ’s notice of intent to dismiss a lien when: (1) the lien had already been dismissed by a prior judge, and there was no lien remaining to dismiss; and (2) the lien claimant asserted that the lien was subject to an automatic stay pursuant to LC 4615.

CHAPTER 12: DEATH BENEFITS

In Moon v. Southern California Edison, 2017 Cal. Wrk. Comp. P.D. LEXIS 590, the WCAB concluded that a minor son did not meet his burden of proving he was physically or mentally incapacitated from earning, which would have entitled him to lifetime death benefits pursuant to LC 4703.5, even though a physician reported that his autism spectrum disorder would require “continual medical and daily care assistance for life.” 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Shemet v. Perry, 2018 Cal. Wrk. Comp. P.D. LEXIS 22, the WCAB upheld a WCJ’s finding that an applicant suffered a compensable injury based on the QME’s report, and that the defendant was not denied due process, even though it could not cross-examine the applicant at trial because he claimed his Fifth Amendment rights.

In Gutierrez v. Molycorp Minerals, 2018 Cal. Wrk. Comp. P.D. LEXIS 3, the WCAB upheld a WCJ’s decision that the applicant was not entitled to a replacement panel based on the QME’s inability to make herself available for a deposition within 120 day as required by CCR 35.5(f).

CHAPTER 15: PRETRIAL LITIGATION

In Sequeira de Bustos v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 4 (writ denied), the WCAB awarded an applicant 20 percent permanent disability based on the permanent and stationary report of a QME, even though the primary treating physician never issued reports addressing the applicant’s permanent disability. 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB affirmed a WCJ’s order setting the matter for an expedited hearing on the applicant’s right to temporary disability benefits, even though the applicant’s attorney did not engage in a genuine, good-faith effort to resolve the dispute before filing the DOR.

In Torok v. County of San Diego, 2018 Cal. Wrk. Comp. P.D. LEXIS 6, the WCAB rescinded a WCJ’s order disallowing a lien for back surgery provided by a private health plan before an applicant filed a claim with the employer. 

In Torres v. American Building Janitorial, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 11, the WCAB rescinded a WCJ’s finding that a lien was not properly and timely filed, and was invalid and barred by the statute of limitations when the WCJ misunderstood the requirements of LC 4903.8(d). 

CHAPTE R16: TRIAL AND APPEAL

In Sayre v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 3 (writ denied), the WCAB concluded that an applicant did not meet his burden of proving his sarcoidosis and related erythema nodosum were related to his employment as a deputy sheriff. 

In Nowak v. Pacific Architectural Engineering, 2018 Cal. Wrk. Comp. P.D. LEXIS 18, the WCAB rescinded a WCJ’s award of continuing temporary disability when, after an expedited hearing Oct. 3, 2017, the parties received a report from the primary treating physician Oct. 13, 2017, stating that the applicant was permanent and stationary Aug. 23, 2017. 

Topics: Case Law Updates

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