Happy Monday, dear readers!

Most people with a TV set or a subscription to Netflix (let alone a basic education) are familiar with the concept of the 5th Amendment’s privilege against self-incrimination.  An accused cannot be compelled to offer testimony that might incriminate him or herself.

What happens when such a privilege is asserted in workers’ compensation matters?  Can the privilege against self-incrimination be asserted to avoid testifying at a deposition or hearing?  Can it be used to avoid submitting to a medical-legal examination?

In the matter of Smith v. Action Roofing, a panel case, presented such a situation.  Applicant sustained an admitted injury, but defendant alleged applicant committed fraud by engaging in softball during TTD periods, and lying about playing softball.  At some point, criminal charges were filed against applicant, and defendant sought to go to trial on its petition to dismiss based on fraud.

Applicant objected to proceeding to trial, arguing that as criminal charges were pending, applicant could not openly testify about the facts.

In denying applicant’s petition for removal of the order setting the sole issue for trial, the WCAB reasoned that “[d]efendant has a significant interest in proceeding expeditiously on its petition because defendant is continuing to pay benefits in this case and the continued payment of such benefits would be a significant burden if applicant’s workers’ compensation trial were stayed pending the resolution of criminal charges, which could take years… [a]lthough applicant has a significant interest in asserting his right against self-incrimination and applicant would be significantly burdened as such an assertion would create an adverse inference that applicant’s testimony would favor defendant, on the facts of this case applicant’s interest against self-incrimination is outweighed by defendant’s burden of continued payment of benefits and our constitutional mandate to resolve cases expeditiously.” (Emphasis belongs solely and exclusively to your humble blogger)

Now, I know this is only a panel case, dear readers, but it’s a wonderful result for the defense community.

Let’s put aside all the legal mumbo jumbo for a minute – one of two things is true: either applicant engaged in fraud or he didn’t.  If he did not engage in fraud, he can honestly and fairly testify about the facts of the case at his workers’ compensation proceeding without fear of any adverse effects on the criminal case.  However, if the injured worker must choose between engaging in perjury or self-incrimination, then, although the constitution might spare him a cell, perhaps he is not entitled to workers’ compensation benefits.

What’s the take-away for us?

Various privileges are asserted at deposition and trial.  Have you ever had an injured worker testify that he drove himself to the deposition, but then assert a privilege against self-incrimination when asked for a driver’s license?

Have you ever asked an injured worker if she has the right to work in the United States only to have the attorney instruct her not to answer based on 5th amendment privilege or privacy privilege?

Well, this panel case confirms other cases that allow for an adverse inference from asserting these privileges.

What’s more is that although incarceration is a basis for delaying resolution of workers’ compensation cases, pending criminal chargers are NOT grounds for delaying workers’ comp proceedings.  So if chargers are brought against an applicant, full speed ahead!

Now, it’s perfectly understandable that the more paranoid members of the applicant attorney bar will start crying out “injustice!”  They will see in their collective mind’s eye insurance companies pulling strings with their puppets in the prosecutor’s office to get rid of claims by having false charges brought against poor, defenseless workers.  Rubbish!

It is easier to have a camel pass through the eye of a needle than to get a case picked up by the district attorney or prosecution – probably because there are so many cases that merit prosecution!  The various prosecution offices receive funding from the defense community, but don’t kid yourself – it’s not a voluntary contribution.  The State of California takes what it wants from the employers and insurers and distributes it as it sees fit, often times to fund investigation and prosecution of employers and insurers!

Bottom line, dear folks – we should press this reasoning as much as possible to punish and discourage fraud.  There is no reason why an injured worker trying to decide between perjury and self-incrimination should be collecting benefits during his deliberations.