WCDefenseCA

Happy Monday, dear readers!

EDIT: Thanks to Jennifer for pointing this out!  This is a panel level decision.  Your humble blogger shall wear sackcloth and ashes for a week for neglecting to mention the level of this decision.  If you’re at the Board and you see a gentleman in a bow tie but also wearing sackcloth and ashes, please say hello…

I hope the weekend was kind to you and the week ahead is full of voluntary OTOCs and low-ball C&Rs.

But, in the meantime, I bring you the case of Shemet v. Wayne Perry, one of those cases where the smoke is likely to get in your eyes.

The skinny version of this case is that applicant alleged a CT, which defendant denied.  At a trial held on the single issue of AOE/COE, defendant sought to question applicant about his work in the marijuana industry, particularly his work involving marijuana plants and tending to them.  However, applicant’s criminal attorney instructed him not to answer out of concern for federal criminal charges.

Prior to the trial on AOE/COE, applicant was deposed by defendant and discussed his job duties with the concurrent employment of marijuana growing.  The QME had examined applicant, asked his own questions about his work, and reviewed the deposition transcript.  Apparently, the QME had concluded that there was industrial exposure for a cumulative trauma.

Defendant sought reconsideration of a finding of an industrial injury, arguing that its due process rights were violated when it was not allowed to question applicant at trial about his activities.  The WCJ, in recommend reconsideration be denied, pointed out that defendant did not introduce the deposition transcript into evidence, and failed to make an offer of proof of what questions it intended to ask applicant.  Furthermore, while the specifics of the job duties might be relevant to nature and extent of injury, “[f]or an orthopedic injury only 1% causation is needed to find an injury.”

The WCAB did not offer any help to defendant either, advising that defendant must make some showing of how it was prejudiced by applicant not testifying at trial about the rigors of the marijuana industry.

This case is in stark contrast to the opinion of the Court of Appeal (unpublished) in the Ritzhoff case, where the Court of Appeal ruled that an applicant cannot refuse to testify about the claims in general.

So, let’s just say, hypothetically, defendant is aggrieved because applicant is refusing to repeat on the witness stand what he said at deposition, how is defendant aggrieved?  Well, at the very least, defendants are entitled to due process, which, at the very least itself means the right to notice of the hearing, to be heard, to present witnesses, and to cross-examine any adverse witnesses.

However, one of the central duties of a trial judge is to find facts, including to assess credibility.  When a QME finds an applicant credible, that carries no more weight than a defense attorney finding an applicant less than credible.  The WCJ must determine credibility, and that is not done by reading ink on paper, but observing the witness testify – seeing the witness’s demeanor and presentation and forming a conclusion as to whether this witness is telling the truth or not.  That can’t be done when an applicant invokes 5th amendment privilege.

So, let’s again ask the question – why does it matter?  Because credibility is not compartmentalized – if a person is willing to lie, under oath, about one issue, the rest of his or her testimony (and statements to physicians as well!) becomes unreliable.  Not to imply that the applicant in the Shemet case is not credible, but if the question is how a defendant is harmed by being deprived of the ability to cross-examine a witness at trial, this is how!

If I’m wrong about this, then why do we need trials at all?  Let’s just conduct the entire litigation process by submitting deposition transcripts and interrogatories.  Applicants need not appear and the entire proceedings can be held via e-mail and chat-rooms.  Text messages will be the pleadings of the day: “I am injured. Give me $$$!” “LOL NO UR NOT!”

In the Shemet case, defendant was denied the right to have its day in court, at least in part, because it was denied the right to have a WCJ, the finder of fact, assess the credibility of a party and witness.  At least, that’s your humble blogger’s completely defense-oriented spin on things.

Onward, dear readers, and let no benefits go un-denied!