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COA: Defendants Entitled to X-Exam Applicants

Happy Wednesday, dear readers!

The first week of 2015 is now finally gone – have you made good use of it?  Is your new years’ resolution still sporting a faint heartbeat, or has it died on the vine?

Well, I bring you an interesting case today to distract you from your woes, which I presume you have a plenty, given the fact that you’re reading a workers’ comp blog.  Though of limited applicability, given that the case itself is unpublished, it does stand for the concept that even defendants have rights in workers’ compensation proceedings.  And to think, this all came about because your humble blogger accidentally got involved in a pro-workers’ comp defendant demonstration…

Anywho… the case is that of Ogden Entertainment v. WCAB (Ritzhoff), issued but not published as 2014 yielded its last few glimmers of light.

Applicant Ritzhoff had sustained an injury in 1996, which was found permanent and stationary in 2005.  However, applicant claimed a compensable psyche injury, and his psyche treating physician found him permanently and totally disabled.  When the defendant received a permanent and stationary report as to the psyche injury, it cut off temporary disability benefits, prompting an expedited hearing.  Applicant testified that he was still temporarily totally disabled, but when defendant’s efforts to cross examine him were cut off due to time constraints.

At various hearings that followed, applicant refused to be cross-examined.  The defense position was that it had a right to cross-examine applicant, and that, through its cross-examination, it would prove not only that applicant was permanent and stationary, but also that he had been working and earning money, thereby defeating the claim that he was totally and permanently disabled.

The WCJ concluded that applicant was TTD based on the opinions of applicant’s psychiatrist, and further concluded that the lay testimony of an injured worker would have no bearing on the expert testimony of the psychiatrist.

Defendant filed a petition for reconsideration, but found no assistance there, as the WCAB agreed with the WCJ’s holding.

In response, the defendant stopped paying for treatment, asserting the position that it was denied due process.  So, at another expedited hearing, the WCJ ordered the defendant to start providing medical treatment.  However, although the WCJ ordered the payment of TTD benefits and psychiatric treatment, because applicant continued to refuse to submit to cross examination, no orthopedic treatment was ordered.

Again the defendant sought reconsideration, and again the WCAB allowed the WCJ’s decision to stand, although the panel opinion noted that, ultimately, applicant would have to submit to cross-examination, just not yet.

So, here’s where it gets really fun, and those cold, hard, barely-functioning defense hearts out there can flutter with the faintest signs of joy.

The Court of Appeal panel squinted at the facts and procedural history of this case, and disapprovingly shook its head, like so:

The COA went so far as to quote the United States Supreme Court (called “SCOTUS,” by the cooler kids) to support the contention that cross examination is pretty darn important for due process, and even employers and insurers are entitled to due process in California.  After a brief discussion of various sources of legal authority for the right to cross examine witnesses, especially when a witness is a party to the case, the WCAB annulled the WCJ’s and WCAB’s decisions, remanding the case to down below.

Now, I know this case is unpublished, so you’re not going to have too much luck citing it unless you’re willing to go in for one of your humble blogger’s crackpot ideas, but the opinion is a ready to be copy-pasted into a brief on why you should be entitled to cross-examine any witness.

If nothing else, this opinion should provide incentive for defendants to consider going up to the Court of Appeal on such issues.

Strap in tight, dear readers, it’s going to be a bumpy year!

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  1. Tom Harbinson
    January 14th, 2015 at 09:10 | #1

    Unbelievable, no cross-examination! I would support an effort to have the decision published for the purpose of exposing the name(s)of the WCJ and the commisioners involved. They should be impeached!

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