Taking the 5th In Workers’ Compensation Proceedings

The recent media headlines contain a daily recitation of the politicians, or their underlings, who have faced criminal charges and subsequently threatened to “take the Fifth.” The Fifth Amendment of the United States Constitution provides that “no person shall be compelled in any criminal case to be a witness against himself.” That right is reflected by the State of California in Evidence Code Section 940 which confers upon an individual a privilege “to refuse to disclose any matter that may tend to incriminate him.” The State Supreme Court, in Cramer v Tyars (1979) 23 Cal. 3d 131 held that the privilege against self-incrimination can be claimed in any proceeding and protects any disclosure “that the witness may reasonably apprehend could be used in a criminal prosecution or could lead to other evidence that might be so used.”

Can this constitutional and statutory right be successfully employed in workers’ compensation proceedings? Are there any means of preventing an allegedly injured worker from exercising this right? What are the negative ramifications to him/her if the right is asserted?

The privilege against self-incrimination must be observed as being more than a convenient act of gamesmanship. It must always be viewed in the context of the primary purpose of the workers’ compensation scheme as set forth in Article XIV, Section 4 of the California Constitution, which creates a legislative framework that “shall accomplish substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.” Labor Code Section 15 provides that “shall” is mandatory. Webster’s College Dictionary defines justice as conformity to truth, reality and principles of righteousness. Moreover, refusing to testify appears contrary to the well-recognized principle that all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing, including the right to fully cross-examine witnesses. (Rucker v WCAB (2000) 65 Cal. Comp. Cases 805 and Gangwish v WCAB (2001) 66 Cal. Comp. Cases 584)

The liberal construction mandate of Labor Code Section 3202 was never intended to countervail these principles. However, at first glance, this appears precisely what occurred in two recent cases.

In Camacho v Pirate Staffing 2017 Cal. Wrk. Comp. P.D. LEXIS 531, the employee sustained an admitted industrial injury to his back and claimed injury to his lower extremities and psyche. Two years prior to that trauma, while working for a different employer he sustained an industrial injury to his back, which trauma necessitated the performance of a lumbar laminectomy. Mr. Camacho admitted that he utilized a different name at the time for the first injury. During the course of cross-examination at Trial, he asserted the privilege against self-incrimination regarding questions related to the social security number that he used in the prior case. The Trial Judge issued a Take Nothing decision, holding that Mr. Camacho’s refusal to answer questions regarding his social security number undermined his credibility with respect to all issues. The WCAB granted the employee’s Petition for Reconsideration and held that Mr. Camacho could not be compelled to divulge information regarding the social security number used in the previous case pursuant to CCR Section 10400(h). The WCAB surprisingly issued the rather gratuitous statement that “working under a different social security number did not reflect upon the applicant’s credibility or legitimacy of his claim.” The case was remanded in order for the Trial Court to determine the applicability of legal apportionment.

The employee in Shemet v Wayne Perry 2018 Cal. Wrk. Comp. P.D. LEXIS 22 alleged that he sustained a CT injury to his neck and shoulders. During the discovery period, he was evaluated by the treating physician and a QME, both of whom issued reports which confirmed the existence of an industrial injury. Defendant also deposed Mr. Shemet and secured various records via Subpoena Duces Tecum. A portion of that data pertained to his cultivation of marijuana, which was permitted under State law but prohibited by Federal statutes. At the time of Trial, Mr. Shemet asserted his privilege against self-incrimination to all questions posed by Defendant regarding his use and cultivation of marijuana. The employer’s counsel failed to propound any questions regarding the only issue that was presented at the Trial: whether the employee sustained an injury AOE/COE. Instead, Defendant apparently employed a strategy of attempting to convince the Court that Mr. Shemet’s claim of industrial injury was invalid based on his assertion of the privilege against self-incrimination. The Trial Judge was able to pierce the fog of this delusion and found injury AOE/COE based on the contents of the admitted medical reports. The WCAB denied Defendant’s Petition for Reconsideration.

These cases were decided based on both expressed and implied principles governing the ramifications of asserting the privilege against self-incrimination which can serve as guidance in future matters.

  1. The assertion of the privilege against self-incrimination does not give rise to the well settled legal principle embodied in BAJI Jury Instruction 2.22: “A witness false in one part of his/her testimony is to be distrusted in others.” The exercise of the privilege against self-incrimination does not constitute testimony.
  2. Similarly, Evidence Code Section 913a provides that neither the Court nor opposing counsel may comment on a witness’ exercise of the privilege against self-incrimination, nor should any presumption arise from that assertion.
  3. However, consistent with the goal of achieving “substantial justice,” a witness cannot refuse to be cross-examined based on the general assertion of the privilege against self-incrimination. The exercise of this privilege must be made in response to each individual question. It is the Court’s obligation to determine whether the answer will incriminate the witness. (People v Chandler (1971) 17 Cal. App. 3d 798)
  4. The assertion of the privilege against self-incrimination can result in a denial of additional benefits. In Smart Modular Technologies v WCAB (Lai) (2007) 73 Cal. Comp. Cases 73, the employee had been provided TD benefits during the time frame in which video tape was obtained depicting him engaging in activities grossly inconsistent with his deposition testimony and the contents of the medical reports. At the time of Trial on all issues, including common law fraud and restitution, he refused to testify, citing the privilege against self-incrimination. Defendant sought dismissal of the Application, which the Trial Judge refused. The Court did, however, deny the employee any additional benefits, including PD and future medical care.
  5. The assertion of the privilege against self-incrimination can ultimately result in a dismissal of the underlying case based on disobedience to a Court Order. Moreover, negative ramifications emanating from the exercise of the privilege against self-incrimination can occur during discovery, as well as at Trial. These principles are illustrated by two cases. 
    • In Powers v WCAB (1979) 44 Cal. Comp. Cases 906, the widow claimed that her husband’s death occurred during the course of a business trip. Significantly, the suspect who was arrested enumerated his residential address as being the Powers’ family home. One year prior to the death, the wife had initiated a Petition for Dissolution of the marriage. Defendant sought an Order to depose her regarding her relationship with the suspect. At the deposition, she asserted her privilege against self-incrimination. The Trial Judge ultimately dismissed the case on the grounds that the exercise of the privilege against self-incrimination prevented the employer from conducting allowable discovery reasonably calculated to lead to the discovery of admissible evidence, including whether the death occurred as a result of a personal grievance as opposed to arising out of and occurring the course of the employment.
    • Similarly, in Fremont Indemnity Company v Superior Court (1982) 137 Cal. App. 3d 554, the owner of a restaurant destroyed by fire sued the insurance carrier for recovery, which policy contained an arson exclusion. He was subsequently indicted for that crime. The Defendant sought to depose him in the civil action. Plaintiff refused, claiming the privilege against self-incrimination. The Trial Court’s denial of the insurance carrier’s motion for an Order compelling the occurrence of the deposition resulted in Defendant’s filing with the District Court of Appeal a Petition for Writ of Mandate. The Appellate Court essentially held that a civil Plaintiff could not compromise the right of a civil Defendant to engage in full discovery activity by asserting the privilege against self-incrimination. The filing of an action to recover on a fire insurance policy operated to waive the constitutional privilege against self-incrimination of any factual issues, particularly the applicability of the arson exclusion. The District Court of Appeal held that Plaintiff could claim the privilege, but would need to dismiss his lawsuit. If he desired to persist in the litigation, he would need to be deposed on all matters, and, if he refused, the Trial Court would favorably entertain a Motion for Dismissal.

An allegedly injured worker’s exercise of the privilege against self-incrimination requires the employer to immediately initiate proactive measures. At the discovery stage, assertion of a Petition for an Order Compelling answers to deposition questions should be considered. The result in Camacho may have been different had the only means of procuring information pertaining to prior injury been via use of the social security number used at that time. At the time of Trial, always express an offer of proof regarding the questions that were precluded from being asked and the fashion by which the answers were relevant to the employer’s defenses to its obligation to furnish benefits. Moreover, whenever the privilege against self-incrimination is contemplated to be invoked, consideration should be given to objecting to the admission into the evidentiary record of any medical reports or other data which could be used to prove the threshold issue of Injury AOE/COE in the absence of the employee’s testimony. Had the medical reports in Shemet been excluded from the evidentiary record, the employee’s burden of proving Injury AOE/COE would not have been fulfilled, resulting in a Take Nothing decision. An allegedly injured worker certainly has the right to avoid self-incrimination. However, this right must not be used as a barrier to the employer’s assertion of its defenses. As was noted by various Courts, “he cannot have his cake and eat it too.”