Are There Consequences to Taking the Fifth in a Workers’ Comp Case?

The following is a guest blog post by Michael W. Sullivan of Michael Sullivan & Associates LLP, an aggressive workers’ compensation defense firm with offices throughout California. Mr. Sullivan is a bar-certified Specialist in Workers’ Compensation Law.

The Fifth Amendment protects a person from answering “official questions in any other proceeding, civil or criminal, formal or informal, where he or she reasonably believes the answers might incriminate him or her in a criminal case.” Spielbauer v County of Santa Clara (2009) 45 C4th 704, 714. This includes workers’ compensation proceedings. But does invoking the Fifth Amendment have any consequences for an injured worker?

The California Supreme Court in People v Holloway (2004) 33 C4th 96, 131 noted Evid C §913 states that “no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” It held, “California law, then, makes no distinction between civil and criminal litigation concerning adverse inferences from a witness’s invocation of the privilege against self-incrimination.”

But even after Holloway, the Workers’ Compensation Appeals Board (WCAB)continued to find that there could be negative consequences against applicants who invoked the Fifth Amendment. For example, in Vargas v Select Staffing (Nov. 29, 2010, ADJ7014135) 2010 Cal Wrk Comp P.D. Lexis 548, the WCAB held that, although it couldn’t compel the applicant to testify in violation of her privilege against self-incrimination, there was an equally compelling constitutional guarantee prohibiting it from awarding her benefits without giving the defendant the right to cross-examine her, present rebuttal evidence and, generally, to defend against the claim. The WCAB instructed that an applicant’s case could be dismissed if he or she didn’t answer “directly relevant” questions.

In two recent cases, however, the WCAB has refused to penalize applicants who took the Fifth:

  • In Camacho v Pirate Staffing (Nov. 20, 2017, ADJ7818556) 2017 Cal Wrk Comp P.D. Lexis 531, the WCAB held that the judge erred by drawing an adverse inference from the applicant’s assertion of his privilege against self-incrimination on questioning about his Social Security number. It explained that disclosure of an applicant’s Social Security number is voluntary and that failure to do so will have no adverse consequences.
  • In Shemet v Perry (Jan. 12, 2018, ADJ9338860) 2018 Cal Wrk Comp P.D. Lexis 22, the WCAB held that the defendant wasn’t denied due process, even though it couldn’t cross-examine the applicant at trial because he claimed his Fifth Amendment rights. The defendant didn’t offer proof of what questions it sought to ask but couldn’t and didn’t claim it was prevented from cross-examining the applicant during his deposition on the allegedly illegal activities. Further, the defendant didn’t offer the applicant’s depositions into evidence at trial or try to introduced them once he invoked the Fifth. The WCAB concluded that the defendant failed to exercise diligence in pursuing its rights.

From these developments, it’s clear that the WCAB can’t make an adverse inference based on an applicant’s assertion of the Fifth Amendment right against self-incrimination. But it’s not clear whether other remedies, such as dismissal, might be warranted. Camacho and Shemet didn’t reject the decision in Vargas holding that an applicant’s claim may be dismissed for failing to answer directly relevant questions because the defendants in those cases didn’t establish that the applicants failed to answer such questions.

The bottom line: Defendants seeking to claim prejudice by the applicant’s invocation of the Fifth must be ready to show (1) how the required information is directly relevant, and (2) how they diligently pursued the information. Stay tuned for further legal developments on this issue.

Michael Sullivan’s 16-chapter treatise, Sullivan on Comp, a preeminent resource in the field, is now available online, with links to primary law, in CEB’s Workers’ Compensation OnLAW Library.

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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