Litigation Tips: Pleading the Fifth

Wednesday, April 20, 2011 | 0

By Michael Sullivan
Michael Sullivan & Associates

The Fifth Amendment of the U.S. Constitution guarantees the right against self-incrimination. As noted by the California Supreme Court, "The constitutional guarantee against compelled self-incrimination protects an individual from being forced to testify against himself or herself in a pending criminal proceeding, but it does more than that. It also privileges a person not to answer 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 Cal.4th 704, 714. Therefore, the Fifth Amendment right against self-incrimination also applies in workers' compensation proceedings.

However, when an injured worker seeks to recover workers' compensation benefits, the invocation of the Fifth Amendment is not always without consequence. This right must be balanced against an employer's right to engage in reasonable discovery. As noted in by the California Supreme Court in Britt v. Superior Court of San Diego County (1978) 20 Cal.3d 844, 858, "the privilege against self-incrimination has been held to be subject to a similar 'waiver' exception as to matters which are directly relevant to litigation commenced by the holder of the privilege."

In civil cases, the Court of Appeals has held that a party to a civil action may not invoke the Fifth Amendment on matters directly relevant to his or her recovery, while simultaneously maintaining the civil action. For example, in Newson v. City of Oakland (1974) 37 Cal.App.3d 1050, a plaintiff in a personal injury action objected to a question on whether he had filed state and federal income tax returns on the grounds of the privilege of self-incrimination. The trial court overruled the objection and explained that the plaintiff "had a choice of answering the question or withdrawing his claim for earnings and 'couldn't have his cake and eat it too.'" Id. at 1055. The Court of Appeal found that this was proper. It stated, "Although acknowledging that parties in civil litigation have every right to claim the privilege against self-incrimination, some jurisdictions have shown a disinclination to permit either plaintiff or defendant to prevail while drawing around himself this cloak of privilege." Id. at 1057.

Furthermore, in Fremont Indemnity Co. v. Superior Court of Orange County (1982) 137 Cal.App.3d 554, a plaintiff brought a civil action claiming rights under a fire insurance policy, but refused to testify at deposition because he had been indicted for arson and was asserting his privilege against self-incrimination. The court noted that the issue was "whether a person can initiate a lawsuit and then by reliance upon the privilege against self-incrimination effectively prevent the party sued from getting at the facts by way of discovery, and thus prejudice preparation of his defense." Id. at 557. Relying on Newson, the court held that the plaintiff's filing of an action to recover on the fire insurance policy operated to waive his constitutional privilege against self-incrimination with reference to any factual issues tendered by the complaint. The court added that the plaintiff could still claim his privilege, but that he would have to dismiss his lawsuit if he persisted in doing so. Again, the court noted that the plaintiff  "cannot have his cake and eat it too." Id. at 560.

In Mitchell v. Superior Court of Fresno County (1984) 37 Cal.3d 591, 605, the California Supreme Court found that Fremont "correctly characterized the sought-after testimony as 'vitally relevant' to an issue (arson) which was necessarily raised by plaintiff's claim." The court added, "Discovery of this information was clearly essential to a fair resolution of the case, since a finding of arson would have provided a complete defense for defendant insurers." The Court suggested, however, that Fremont would not be applicable if the testimony in question did not go to the heart of a plaintiff's claim.

These principles have similarly been extended to workers' compensation cases. In Powers v. Workers' Comp. Appeals Bd. (1979) 44 Cal.Comp.Cases 906 (writ denied), a wife filed an application for workers' compensation death benefits alleging that her husband died in the course of his employment. However, the wife was suspected of a murder, and at deposition, she refused, on Fifth Amendment grounds, to answer any questions except to give her name and address in deposition. As a result, the appeals board dismissed the case. The Court of Appeal issued a minute order denying a petition for Writ of Review filed by the wife, noting that the privilege against self-incrimination was waived as to matters which are directly relevant to litigation commenced by the holder of the privilege himself. The court cited Britt, Newson, and Shepherd v. Superior Court (1976) 17 Cal.3d 107, 117 to support its conclusion.

More recently, in the panel decision of Vargas v. Select Staffing 2010 Cal. Wrk. Comp. P.D. LEXIS 548 (panel decision), the appeals board relying on Britt, Newson, and Powers, among others, confirmed that an applicant could not attempt to hide behind a "cloak of privilege." Instead, the Workers' Compensation Appeals Board noted that an applicant has a choice: she may answer all "directly relevant" questions, or she may withdraw her claim. The panel agreed with Newson that an applicant "cannot have her cake and eat it too."

In Vargas, the applicant refused to answer deposition questions regarding the possession of a California driver's licence and use of other names, Social Security numbers, and dates of birth, citing her Fifth Amendment right against self-incrimination. The defendant argued that it had a right to discover information relevant to the applicant's prior work history, previous claims, and medical conditions, and that the information sought was necessary to search indexes where such data is categorized by name, birth date, and Social Security number. The workers' compnsation judge denied the employer's petition, but the WCAB struck the WCJ's order and granted the defendant's petition for reconsideration on the issue.

The WCAB noted that the waiver of the privilege extends to matters which were "directly relevant" to the issues of the case. It noted that ideally, the parties should resolve the matter themselves, but if they do not, this responsibility would initially fall with the WCJ. It then set forth a procedure to be followed when the privilege against self-incrimination is raised.

First, the defendant should file a petition requesting the WCJ to order the applicant to answer questions and to dismiss the applicant's application if the applicant does not answer the questions. The defendant should include a list of specific questions it wishes the applicant to answer, and it should explain how those questions are "directly relevant" or would lead to discovery of relevant evidence. After determining which of the questions the applicant must answer, the WCJ should order the applicant to answer the questions and issue a notice of intention to dismiss the application if the applicant does not answer the questions under oath within 30 days.

Thus, although an injured employee has a right to assert the right against self-incrimination in workers' compensation proceedings, he or she may not do so to withhold crucial evidence. If the evidence is considered directly relevant to the claim, then the employee may be compelled to answer the questions. If the employee continues to invoke the Fifth Amendment after being compelled to answer the questions, then the WCAB may dismiss the applicant's claim.

There are certainly some cases which have concluded that remedies short of dismissal may be appropriate when an employee invokes the right against self-incrimination. See Yates v. WCAB (1982) 47 CCC 668 (writ denied); Smart Modular Technologies v. WCAB (Lal) (2007) 73 CCC 173 (writ denied); Barrera v. Jamm Industries Corp. 2010 Cal. Wrk. Comp. P.D. LEXIS 219 (panel decision).  It seems then that a WCJ has some discretion in deciding the appropriate remedy, particularly if WCJ determines that the questions are not directly relevant to the issues of the case. Nevertheless, the WCJ also clearly has the authority and discretion to dismiss a case if an applicant refuses to answer questions that are directly relevant.

Michael Sullivan is the founder of Michael Sullivan & Associates, a workers' compensation defense firm with four offices in Southern California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.