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Case Law Updates for November 2018

Posted by Michael W. Sullivan on Nov 5, 2018 3:05:08 PM

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 4: Employment

In Garcia v. Border Transportation Group (2018) D072521, the 4th District Court of Appeal held that the test adopted in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County (Lee) (2018) 83 CCC 817 applied to the plaintiff’s wage order claims, but not to his nonwage order claims. 

 

Chapter 5: Injury

In Carrasco v. California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 398, the WCAB held that when a psychiatric injury is presumed compensable under LC 5402, the defendant is not precluded from asserting and presenting evidence on the good-faith personnel action defense under LC 3208.3(h). 

In Perez v. Deardorff Jackson Co., 2018 Cal. Wrk. Comp. P.D. LEXIS 413, the WCAB held that the dependents of a harvester failed to meet their burden of proving that his death from a hypertensive stroke while working was compensable. 

 

Chapter 7: Medical Treatment

In Recano v. J Brand, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 443, the WCAB granted an applicant’s appeal of an IMR determination upholding the defendant’s utilization review denial of home health-care services when the IMR reviewer failed to apply the 2016 Medical Treatment Utilization Schedule (MTUS) definition of the term “homebound.”

In Prado v. PCG Hospitality, 2018 Cal. Wrk. Comp. P.D. LEXIS 441, the panel majority held that a defendant’s failure to schedule an appointment with a physician within the MPN did not constitute a denial of care when the medical access assistant acted promptly in assisting the applicant in such scheduling. 

In Barri v. WCAB (2018) G054838, the 4th District Court of Appeal upheld the constitutionality of the lien fraud statutes. 

In Espinoza v. Baldwin Construction, 2018 Cal. Wrk. Comp. P.D. LEXIS 403, the WCAB held that a defendant bears the burden of proof to establish that a lien is subject to an LC 4615 stay.

 

Chapter 9: Temporary Disability

In Bedoya v. Ashley Furniture Industries, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 396, the WCAB held that an applicant was entitled to temporary total disability benefits because the employer did not make an offer of work within his temporary work restrictions after he was laid off. 

 

Chapter 10: Permanent Disability

In Lindh v. City of Petaluma, 2018 Cal. Wrk. Comp. P.D. LEXIS 410, the WCAB awarded an applicant 40 percent permanent disability without apportionment when the QME improperly apportioned to risk factors for an injury.

In Hom v. City and County of San Francisco, 2018 Cal. Wrk. Comp. P.D. LEXIS 431, the WCAB upheld a WCJ’s decision that an applicant was entitled to 30 percent permanent disability for a 2013 injury to his lumbar spine, even though he received a prior award of 20 percent for a 2012 injury to the spine, because the defendant could not prove that the disabilities overlapped under LC 4664. 

 

Chapter 14: Discovery and Settlement

In Ramirez v. Jaguar Farm Labor Contracting, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 442, the WCAB held that an applicant should be evaluated by a QME in chiropractic, even though the medical director issued a replacement panel in orthopedic medicine. 

In Suon v. California Dairies (2018) ADJ9013590; ADJ9014316; ADJ9489408, the WCAB issued an en banc decision holding: (1) disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve them; (2) although LC 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, that party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection; (3) if the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, that party must do so within a reasonable time following discovery of the prohibited communication; (4) the trier of fact has wide discretion to determine the appropriate remedy for a violation of LC 4062.3(b); and (5) removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

In Ocana v. Selah Gourmet Food, dba Country House, 2018 Cal. Wrk. Comp. P.D. LEXIS 440, the WCAB rescinded a WCJ’s decision and allowed a defendant to send vocational evidence to the QMEs under CCR 35(d), as the evidence could affect the permanent disability rating. 

In Rodriguez v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408, the WCAB amended a WCJ’s decision allowing an applicant to record his QME evaluation through a court reporter to also permit him to make an audio recording with his phone.

In Casado v. Kaiser Permanente, 2018 Cal. Wrk. Comp. P.D. LEXIS 399, the WCAB held that a QME’s report was inadmissible when it stated that his medical assistants performed Jamar dynamometer measurements as part of his evaluation, but the QME, in the report or at deposition, was unable to clarify which assistant performed the measurements, in violation of LC 4628(b).

In Lopez v. Car Care, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 411, the WCAB upheld a WCJ’s decision that an applicant’s request for a replacement panel in pain management was void, and ordered the applicant to be evaluated by a replacement panel in orthopedic surgery requested by the defendant.

In Davies v. Securitas Security Services USA, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 423, the panel majority held that a primary treating physician was entitled to recover for his lien related to a psychiatric evaluation under LC 4060 on the issue of compensability, which was prepared after the defendant denied the claim. 

 

Chapter 15: Pretrial Litigation

In Dean v. HomeGrocer.com, 2018 Cal. Wrk. Comp. P.D. LEXIS 424, the WCAB held that a defendant did not establish good cause to set aside stipulations that an applicant sustained injury to various body parts even though the QME and the applicant’s primary treating physician were found guilty of crimes relating to workers’ compensation.

In Crook v. Santa Ynez Valley Presbyterian Preschool, 2018 Cal. Wrk. Comp. P.D. LEXIS 401, the appeals board held that when a party exercises a peremptory challenge of a WCJ for trial, but the same WCJ is conducting the MSC, the WCJ retains authority to issue orders such as discovery orders. 

 

Chapter 16: Trial and Appeal

In Alaeddin v. SCIF, 2018 Cal. Wrk. Comp. P.D. LEXIS 395, the WCAB upheld a WCJ’s decision that substantial evidence established that a claims adjuster sustained a cumulative trauma injury resulting in a stroke.

Topics: Case Law Updates

URGENT REPORT: Civil Claims Against Utilization Review Physicians

Posted by Sure S. Log on Aug 27, 2018 1:26:38 PM

The exclusive remedy rule limits an employee's remedies against an employer for injuries sustained during the course of the employment. The purpose of the exclusive remedy rule is to protect the employer's side of the compensation bargain. Under the compensation bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.

Labor Code § 3852, however, expressly provides that a workers' compensation claim "does not affect his or her claim or right of action for all damages resulting from the injury or death against any person other than the employer." Therefore, although the exclusive remedy provisions of the Labor Code restrict civil actions against a negligent employer, the exclusive remedy rule does not preclude the employee from suing a third party whose conduct was a proximate cause of the injury.

The exclusive remedy rule has been extended to insurers and claims administrators as the alter ego of the employer. (See Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal. 3d 1; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal. 4th 800.) But, physicians within the workers' compensation system have not enjoyed the same protections.

In appropriate circumstances, a treating physician may be sued for medical malpractice for rendering negligent medical treatment for an injured worker. (See Duprey v. Shane (1952) 39 Cal. 2d 781; Sturtevant v. County of Monterey (1991) 228 Cal. App. 3d 758).) Furthermore, even though a medical-legal physician may not be sued for providing an opinion (Keene v. Wiggins (1977) 69 Cal. App. 3d 308), a medical-legal physician may be sued for negligence or professional malpractice for injuries incurred during the examination itself. (Mero v. Sadoff (1995) 31 Cal. App. 4th 1466.)

One of the issues that has arisen within the workers' compensation system is whether utilization review physicians may be sued for negligence. Unlike other physicians, utilization review physicians do not physically evaluate injured workers; they assess the medical necessity of a request for treatment by reviewing medical records submitted with the request and determine whether the treatment is consistent with the Medical Treatment Utilization Schedule or other evidence-based guidelines.

One of the issues that has arisen within the workers' compensation system is whether utilization review physicians may be sued for negligence. Unlike other physicians, utilization review physicians do not physically evaluate injured workers; they assess the medical necessity of a request for treatment by reviewing medical records submitted with the request and determine whether the treatment is consistent with the Medical Treatment Utilization Schedule (MTUS) or other evidence-based guidelines.

In King v. CompPartners, Inc., the California Supreme Court held workers' compensation law provides the exclusive remedy for an employee who alleges injuries caused by a utilization reviewer's denial of medical treatment. In that case, an employee suffered a series of four seizures after a utilization reviewer denied a request for medication. The employee and his wife filed a civil tort claim against the reviewer and others alleging they caused him additional injuries by denying medications prescribed by his treating physician without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. The Supreme Court reversed the Court of Appeal's decision that the employee could potentially could assert a civil tort claim against a utilization review doctor.

It explained the Workers' Compensation Act (WCA) exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries collateral to or derivative of such an injury. The Court explained the utilization review provisions of the WCA govern not only the substance of a utilization review decision, whether based on medical necessity or otherwise, but also the content of the responses communicating the decision. It concluded the harm plaintiffs alleged was collateral to and derivative of that industrial injury and arose within the scope of the employee's employment for purposes of the workers’ compensation exclusive remedy.

The Supreme Court noted that that while the WCA preserves the right of employees to sue third parties, it held that workers’ compensation exclusivity preempts tort claims against certain persons and entities hired by employers, and this included utilization reviewers hired to carry out the employer's statutory claims processing functions. It explained that in performing their statutory functions, utilization reviewers stand in the shoes of employers: they perform utilization review on behalf of employers, to discharge the employers’ own responsibilities to their employees.

The Supreme Court added that utilization reviewers are tasked with making judgments on a limited set of documents pursuant to defined criteria and subject to further review only through statutorily specified procedures. It believed that permitting plaintiffs to bring tort suits against utilization reviewers, in the same manner as they might bring tort suits against treating physicians, would subject utilization reviewers to a second—and perhaps competing—set of obligations rooted in tort rather than statute.

The Supreme Court, however, noted that workers' compensation exclusivity does not bar tort remedies for acts that fall outside the risks encompassed within the compensation bargain. It believed that in other cases, a plaintiff could argue that a utilization reviewer's conduct exceeded the bounds of its role and that workers' compensation exclusivity should not apply. But, because the acts alleged in that case did not suggest the defendants stepped outside of the utilization review role contemplated by statute, the plaintiffs' claims were pre-empted.

Therefore, under this decision, utilization review physicians will be generally covered by the exclusive remedy rule. Injured workers may not sue them in civil court for their decisions to deny or modify requested treatment, even if the decision was mistakenly made. Injured workers may only seek civil remedies against utilization review physician where they engage in extreme and outrageous conduct and in effect step outside of their normal roles in the workers’ compensation system. Given that utilization reviewers must follow specified procedures in carrying out their duties, it will be very difficult for injured workers to make such claims.

On a final note, the Supreme Court believed the Legislature enacted sufficient safeguards to protect employees against abuse in the utilization review process such as rules precluding discontinuation of care, administrative penalties, professional discipline, and employers being responsible for paying benefits to workers who suffer injuries as a result of the utilization review process. However, in one concurring opinion, Justice Liu questioned whether the utilization review process was working as intended, and whether the utilization review requirements are enough to prevent similar injuries in the future. In another concurring opinion, Justice Cuéllar explained that the Court’s understanding of the utilization review statute’s purpose may have differed if the Legislature had failed to provide any safeguards, incentives, or remedies, and added that those safeguards may not be set at optimal level. Both concurring justices stated that the Legislature may wish to examine whether the existing safeguards were sufficient.

Accordingly, there is no doubt that deference was given to the Legislature’s plenary power over the workers’ compensation system. As it stands, injured workers are generally limited to seeking workers’ compensation remedies for any adverse decisions by a utilization review doctor. Any penalties or sanctions against a utilization review doctor or utilization review organization will be limited to those set out in the statutes or administrative regulations. Any additional penalties or sanctions will need to be adopted by the Legislature, not the courts.

By Sure Log exclusively for Sullivan on Comp.

Topics: Announcements

Case Law Updates for April 2018

Posted by Michael W. Sullivan on Apr 25, 2018 11:00:00 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 2: Jurisdiction and Subrogation

In Escamilla v. Cacique, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 49, the WCAB held that a defendant was not entitled to credit pursuant to LC 3861 for an employee’s legal malpractice recovery against her civil attorney.

 

Chapter 3: the Business of Insurance

In San Diego County Schools Risk Management Joint Powers Authority v. Liberty Insurance Corp. (2018) 83 CCC 255, the U.S. District Court for the Southern District of California issued a tentative ruling in a case involving two excess insurers that the second excess insurer was fully liable for expenses exceeding $100,000 for two cumulative trauma injuries.

 

Chapter 5: Injury

In Molar v. State of California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 35, the WCAB held that, per LC 3212.8, a correctional officer was entitled to the presumption of compensability regarding his herpes/Epstein-Barr virus exposure.

In SCIF v. WCAB (Guzman) (2018) 83 CCC 185, the 6th District Court of Appeal held that an employee’s psychiatric injury was not caused by a sudden and extraordinary employment condition for the purposes of LC 3208.3(d) when he was using a 95-pound compactor on a hillside with a 45-degree slope.

In Garcia v. Reynolds Packing Co., 2018 Cal. Wrk. Comp. P.D. LEXIS 29, the WCAB held that an applicant’s psychiatric claim was compensable when the defendant failed to produce evidence that her claim was barred by the six-month requirement in LC 3208.3(d).

 

Chapter 6: Statutes of Limitations

In Galland v. Los Angeles Unified School District, 2018 Cal. Wrk. Comp. P.D. LEXIS 28, the WCAB upheld an earlier decision that an applicant’s claim was barred by the statute of evidence when the defendant presented evidence that it provided him with a claim form and that he did not file an application for adjudication until more than four years later.

 

Chapter 7: Medical Treatment

In Visger v. San Francisco 49ers, 2018 Cal. Wrk. Comp. P.D. LEXIS 42, the WCAB upheld a WCJ’s award of 120 days of inpatient treatment and an additional one year post-inpatient treatment at an assisted living facility for a traumatic brain injury when the defendant did not timely act after receiving the RFA form.

In Villa v. Los Angeles Unified School District, 2018 Cal. Wrk. Comp. P.D. LEXIS 61, the WCAB rescinded a WCJ’s order requiring a provider to pay $18,559.15 to a defendant for overpaid treatment provided to an applicant.

 

Chapter 9: Temporary Disability

In County of San Diego v. WCAB (Pike), 2018 Cal. App. LEXIS 184, the 4th District Court of Appeal annulled the WCAB’s award finding that an applicant with an injury after Jan. 1, 2008, was entitled to temporary disability payment for periods occurring more than five years after the date of injury.

In Bautista v. Smith’s Group Services Corp., 2018 Cal. Wrk. Comp. P.D. LEXIS 44, the WCAB rescinded a WCJ’s finding that an applicant did not suffer a severe burn pursuant to LC 4656(c)(3)(D) when he focused solely on whether the burn itself was severe.

In Martinez v. Parco, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 55, the WCAB held that removal of bone from the applicant’s thumb, combined with its shortening by 7 mm, was a result of the surgeries for the treatment of his industrial injury, and constituted an amputation for the purposes of applying the LC 4656(c)(3)(C) exception to the 104-week limit on temporary disability.

 

Chapter 14: Discovery and Settlement

In Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ’s decision finding that an applicant’s procurement of a chiropractic panel per LC 4060 was premature and invalid, as the qualifying event for obtaining such a panel — the “mailing of a request for a medical evaluation pursuant to Section 4060” — had not taken place.

In Angel v. Able Engineering, 2018 Cal. Wrk. Comp. P.D. LEXIS 25, the WCAB held that an applicant was not entitled to a replacement panel QME in dentistry, based on his claim that the QME was not licensed to practice dentistry at the West Covina location where his medical-legal evaluation took place.

 

Chapter 15: Pretrial Litigation

In Marroquin v. County of Orange, 2018 Cal. Wrk. Comp. P.D. LEXIS 33, the WCAB upheld a WCJ’s order taking a case off calendar even though the applicant was evaluated by a QME and a treating physician. .

In Hernandez v. Henkel Loctite Corp. (2018) ADJ6726149, the WCAB en banc held that lien declarations under LC 4903.05(c)(1), for liens filed prior to Jan. 1, 2017, were timely if they were filed by 5 p.m. Monday, July 3, 2017.

Topics: Case Law Updates

What Qualifies as a Request for a Medical Evaluation Pursuant to Labor Code 4060?

Posted by Sure S. Log on Apr 25, 2018 10:45:00 AM

In disputed cases, parties often rush to request a panel QME in a desired specialty. Per Labor Code § 4062.2(b), when an employee is represented by an attorney seeking an evaluation under § 4060, a QME panel may be requested "No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 ...." The mailbox rule extends this time period for five calendar days if the physical address of the party being served with the first written proposal is within California. But what is a "request for a medical evaluation pursuant to Section 4060"?

Shortly after SB 863 became effective, the DWC issued a Newsline stating that for disputes over compensability under § 4060, a QME panel request must include a written objection that a compensability examination is required.[1] Practitioners generally understood this to mean that a party must issue a letter notifying the opposing party that a panel QME under § 4060 will be requested before actually requesting it.

In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638, however, the WCAB determined that notifying the opposing party that, per § 4060, a panel QME will be requested was not required in all cases. The WCAB found a request to be proper when the applicant simply waited until 10 days after the defense denied the case.

Bahena explained that SB 863 was intended to streamline the AME/QME process to eliminate unnecessary delays and friction in the system. It believed that the changes enacted by SB 863 to the process of obtaining a comprehensive medical evaluation for represented employees in denied injury cases were intended to bring that process more in line with the procedures for unrepresented employees. The WCAB added that once a denial letter is issued, if a medical evaluation is required to determine compensability, no purpose is served by holding up that process until one party sends a letter to the other to initiate it. The WCAB confirmed this interpretation in a subsequent case. (Lopez v. California Pizza Kitchen, 2016 Cal. Wrk. Comp. P.D. LEXIS 399.)

Since then, the issue of whether a delay letter may qualify as "a request for a medical evaluation pursuant to Section 4060" arose. In Montoya v. Burger Buddies, LLC dba Carl's Jr. Restaurant, 2016 Cal. Wrk. Comp. P.D. LEXIS 242, the WCAB upheld a WCJ's decision allowing an applicant to request a QME panel by submitting the defendant's delay letter with his request. The WCJ analogized the situation to Bahena, and explained that although the matter involved a delay letter rather than a denial letter, the purposes for allowing a compensability examination in accordance with § 4060 were the same.

More recently, however, in Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ's decision that an applicant's request for a chiropractic panel pursuant to § 4060 was premature and invalid because a delay letter did not qualify as a "mailing of a request for a medical evaluation pursuant to Section 4060." The WCJ distinguished Bahena because that case involved a denial letter, not a delay letter, and the denial in Bahena included a fact sheet about the QME process and a form to be used for requesting a panel QME. In Rayo, the WCJ concluded that the prerequisites for requesting a panel had not taken place at the time the panel was requested.

Montoya and Rayo reached entirely different results on whether a delay letter could trigger the QME process. Although it is possible that the WCAB in both cases deferred to the WCJs finding that the petitioners had not established substantial prejudice or irreparable harm for the purposes of removal, more likely the WCAB was guided by the facts of each case.

In Bahena, it was specifically noted that a QME panel request form was enclosed with the denial. Similarly, in Montoya, the WCJ found that the defendant's delay letter indicated that a § 4060 evaluation would be needed to complete the investigation. California Code of Regulations Title 8 § 9812(g)(3) provides that if a defendant notifies an employee that it is requesting a comprehensive medical legal evaluation, the delay notice must be accompanied by a QME request form. So in those cases, the WCAB allowed a denial letter or a delay letter to trigger the QME process because they were accompanied by the form. But in Rayo, the WCJ found nothing in the delay letter that reasonably could be described as "a request for a medical evaluation pursuant to section 4060."

The administrative regulations contemplate that providing a QME panel request form will trigger the process for obtaining a QME under § 4060. Per CCR Title 8 § 9812(g)(3) and § 9812(i)(1)(B), if an employee is provided with a QME request form in a delay or denial letter, respectively, the employee must be given the same notification in both letters. The letters must state, "If you do not submit the form within 10 days, we will have the right to submit the form."

So, although the cases have focused mostly on whether a denial letter or a delay letter qualifies as "a mailing of a request for a medical evaluation pursuant to Section 4060," it might be that neither alone qualifies. It might be that a denial letter or delay letter may trigger the QME process under § 4060 only if accompanied by QME panel request form.

Topics: Case Law Updates

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

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