Use of the Fifth Amendment in Workers' Compensation

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.