Shouldn’t there be some distinction between evidence offered to prove an affirmative fact or element and evidence offered in rebuttal? Not according to the army of judges in the case of Ace American Insurance Company v. Workers’ Compensation Appeals Board (writ denied).
Applicant Emil Sulek had claimed that his shoulder injury precluded various physical activities, but the defense attorney found a witness who was prepared to testify that he had seen Mr. Sulek exceeding his claimed limitations.
When the parties appeared at a status conference, the hearing was turned into an Mandatory Settlement Conference, they filled out a 5-pager, and set the matter for trial. The defense attorney did not list this rebuttal witness, and had not previously turned over the statements of that witness to the applicant’s attorney.
At trial, after applicant testified, the defense sought to have the rebuttal witness testify as well, but this effort was thwarted by the workers’ compensation Judge, who described this as “ambushing applicant at the hearing.”
Defendant petitioned for reconsideration, but received no sympathy from the Workers’ Compensation Appeals Board. Instead, an opinion detailing Labor Code section 5502(e)(3) was offered.
The Court of Appeal did not ride to the rescue either, declining defendant’s petition for a writ of review.
It appears that the workers’ compensation system is adverse to applicants being caught red-handed when they have testified to half-truths and full lies.
The WCJ described this as ambush, and in some senses it is – if you want to catch criminals in a sting operation, you have to lay out the bait and strike during the act. In workers’ compensation, there is no effective way to do this if the defense must lay its rebuttal cards out on the table. Many WCJs don’t want to see surveillance or sub rosa tapes either.
Well, it appears that it, once again, falls to your humble blogger to set the record straight on a few facts. If you are for some reason under the age of 12, please stop reading at this point.
1) There is no Easter Bunny;
2) There is no Santa Clause;
3) FROM TIME TO TIME, APPLICANTS LIE!
And when applicants lie, they lie to get more money, more time off work, and more drugs. The only thing that keeps the applicants that are inclined to lie from lying, is the risk of getting caught, losing their claim and incurring some sort of penalties (usually criminal). The liars will never stick their necks out and testify in open court if they know that rebuttal evidence is coming.