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The ABCs of Admissibility
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The ABCs of Admissibility: What You Need to Know and How to Do It Post SB 863
By Marjory Harris, Esq.

A primer with downloadable tip sheet and issues and evidence organizer


   

“A” is for “admissible”

A is for "admissible," B is for “burden-relevant and believable” and C is for “causation-relevant and credible.” We can add “D” for “due diligence.” It is not enough to have admissible evidence unless it is also substantial, credible, relevant to the burden of proof or of going forward and to causation. While this article is primarily about admissibility of evidence, the practitioner who ignores related issues may win the battle and lose the war.


It is not enough to be admissible. It also has to be believable.

“Are you an efficient, careful and focused litigator, or a carpet bomber?”

A Florida workers' compensation judge posed that question (see sidebar). Fledgling lawyers often ask too many questions, put too much into evidence, make the record murky and annoy the WCJ with argumentative and unnecessary questions. More experienced trial lawyers get in and out quickly, asking only what is necessary to carry their burden, submitting into evidence the best documents that support their case, not boring the WCJ, and respecting the frequent unavailability or limited time with the shorthand reporters.


How Do You Litigate? by David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings

Best Practice

The best practice is to prepare carefully for the trial, beginning long before the Mandatory Settlement Conference, gathering admissible evidence on all issues on which you have the burden. Download the Issues and Evidence spreadsheet that helps to organize and evaluate evidence on the key issues in workers' compensation cases. At the minimum keep the Pre-Trial Conference Statement handy with additional notes on how and what to present. This author uses a Trial Summary in big print (in case she loses her reading glasses) that lists all the issues on which she carries the burden, all exhibits, offers of proof, etc. She prints that out in case she also loses her computer or there is no power in the hearing room.


Begin preparation for trial long before the Mandatory Settlement Conference.

Evidentiary standard, burden of proof and of going forward, presumptions

Labor Code §3202.5 provides: “All parties and lien claimants shall meet the evidentiary
burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law.“ Preponderance of the evidence” means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence.”

In Wehr v. WCAB (1985) 165 Cal.App.3d 188, the Court of Appeals found: “Granted that in making its own findings the board should resolve all reasonable doubts in favor of the employee in accordance with the section 3202 rule of liberal construction (ibid), section 3202 “authorizes neither the creation of nonexistent evidence nor the creation of a conflict in the evidence which does not otherwise exist.””

There is also the burden of going forward, which requires a party to refute or explain each item of evidence introduced that damages or discredits his or her position in the action, as a trial progresses. See definition.

Labor Code §5708: The Appeals Board “shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division. All oral testimony, objections, and rulings shall be taken down in shorthand by a competent phonographic reporter.”

Note, however that privileges apply: See Evidence Code §910.

Labor Code §5709: “No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division. No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.”

If you are relying on a rebuttable presumption, it is not itself evidence but affects the burden of producing evidence or the burden of proof (see Evidence Code §600 et seq.). You need to establish a factual basis through admissible evidence or at least an inference (“a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”) For a discussion of how presumptions and evidence interact, see SCIF v. WCAB (Welcher) (1985) 37 Cal.App.4th 675.


“Liberal construction” cannot create non-existent evidence.

Common Types of Evidence: Documents & Testimony

1. Medical: Most of the evidence submitted in workers' compensation trials is medical. It must be in writing: The WCAB has long been adverse to live medical testimony. You have to be pretty old to remember the days when doctors waited in the hallways the way voc experts have in recent years. Rule 10606 states: "The Workers' Compensation Appeals Board favors the production of medical evidence in the form of written reports. Direct examination of a medical witness will not be received at a trial except upon a showing of good cause. A continuance may be granted for rebuttal testimony subject to Labor Code Section 5502.5."

First, medical evidence must fall within one of the categories enumerated in Labor Code §5703. Secondly, it must be substantial (see substantial evidence checklist and Substantial Evidence and Science, Law and Logic). Third, it should be relevant to the issues in dispute. While years ago the practice was to submit into evidence the entire record, even if it filled boxes, the current practice is to submit fewer documents. If there is a need to argue the medical evidence, do it with a trial or post-trial brief (and focus on the word "brief," since the judge has to read all the reports and does not usually appreciate reading extended summaries of those reports in counsels' briefs). Follow the KISS rule: keep it short and simple.

2. Testimony: In California, witnesses are usually read and not seen or heard at Workers' Compensation Appeals Board proceedings. That is, their testimony is received in writiten reports or deposition transcripts. Usually the applicant is the live witness.

There is no need to go into extensive examination of your own client if you represent the injured worker. Often there are stipulations on the relevant facts. Testimony should focus on the disputed issues only and be brief and focused. It is important to get the applicant's symptoms and complaints on the record, but it can be done efficiently, especially when there is an Agreed Medical Evaluator who has written substantial evidence reports:

Q. Do you recall seeing Dr. [AME] on [DATE]?

A. Yes.

Q. Has there been any change in your condition since you saw Dr. [AME]?

A. No.

Q. Did you have a chance to review Dr. [AME]'s reports and deposition testimony?

A. Yes, I read all of them.

Q. Was the history you gave Dr. [AME] of your symptoms and complaints substantially accurate?

A. Yes.

The same approach can be used to ask the applicant about vocational expert reports.

Other witnesses may be necessary, such as co-workers or supervisors, when injury AOE-COE is in dispute, or when surveillance video is presented, or when there is a Labor Code §132a discrimination petition or serious and willful trial.

With some cases, such as serious and willful, there is likely to be verbal evidence from Cal-OSHA inspectors, the employer's safety manager or expert, and witnesses other than the injured worker. A foundation must be laid for their reports, just as when you call an adjuster to testify when there is a sanctions or penalty issue. To save trial time, the parties may stipulate to the authenticity of the documents.

Some types of evidence cannot come in on their own. You will need a witness to authenticate the evidence. While the WCJ has discretionary power, you need to protect the record on appeal by making sure what you submit at trial is legally adequate. If the other side is not authenticating their evidence, be prepared to counteract such evidence and argue that it has little weight and is unreliable, rather than argue that it is inadmissible.

Concerning hearsay, the Supreme Court in Sada v. IAC (1938) 11 Cal.2d 263 noted that “the fact that a finding is supported solely by hearsay does not of itself invalidate the finding or stamp the proof as too unsubstantial to be credited. Inasmuch as hearsay is admissible, the weight to be given such evidence is a question for determination by the commission, and if in its judgment the evidence carries convincing force, it may be sufficient in itself to sustain an award.”

3. “Writings”: This includes surveillance videos, which, like other writings (see Evidence Code §250), must be authenticated. Evidence Code §1401. The applicant's attorney should not allow videos to be shown unless the person who took them can testify and lay the foundation for their accuracy. Since “field editing” is rampant, the videotaper needs to explain the gaps in filming, whether signs of pain were observed although not filmed, and the like. See Rule 6 in defense attorney Howard J. Stevens's article.

"So what?" videos will annoy the judge, especially so if the videotaper comes across as unreliable and sleazy.

4. Vocational: Under revised Labor Code §5703, vocational evidence is following in the footsteps of medical evidence: written reports rather than live testimony, except for good cause. The wording of the statute, like much of SB 863, leaves questions for the WCAB and appellate courts. Can you cross examine the other side's expert? Probably best to take a deposition or try to get a report from your own expert responding to their expert.

Since witnesses must be listed on the pre-trial statement, one should raise this issue at the Mandatory Settlement Conference until there is a decision clarifying that "direct examination" means no live witness. Why delay or even derail your own case by trying to follow the old ways in new times? And there is always the element of surprise, often unpleasant, when live witnesses testify. With written reports you are sure of the evidence and can discuss it in a trial brief without having it boomerang when a witness testifies viva voce. Another problem with the live expert testimony is the possible garbling in the Minutes of Hearing and Summary of Evidence. Since WCJs do not generally work from transcripts but from their own handwritten notes, there is room for more error when the expert testifies at trial.

Make sure the vocational report is substantial evidence and relies on substantial evidence. The same "how" and "why" and other rules apply. Does the report rely on documented restrictions from substantial evidence reports? Does it rely on respected sources of data? Is it logical? Use the substantial evidence checklist for what you send the expert and when you review their report. Review the cases on the A-Z page. Reports that are based on the injured worker's subjective complaints and self-reporting of pain and fatigue without any admissible medical evidence to back up the complaints are not persuasive. Make sure you have that evidence and also that the vocational expert's report is updated to include any later admissible medical reports that may be used to attack it.

Encourage the vocational expert to organize the report by stating the legal issue and foundation, method and resources used, and qualifications as an expert, at the start of the report. Advise the expert to avoid anything illogical like recommending jobs that require drug tests for workers taking prescription opiates, or jobs requiring frequent use of a computer when substantial and admissible medical evidence restricts use of hands.

Lastly, remember that you need to establish too that “vocational expert evidence is otherwise admissible” as stated in Labor Code §5703 (sidebar).

5. Social media evidence: this is an evolving area of the law as it tries to catch up with the burgeoning electronic data sharing going on world wide. As yet there are no California workers' compensation cases to light our way. But at the DWC's recent 20th Annual Educational Conference, a handout outlined the issues.


Labor Code §5703 was revised by SB 863. Effective 1-1-13,

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open
hearing:
(a) Reports of attending or examining physicians.
(1) Statements concerning any bill for services are admissible only if made under penalty of perjury that they are true and correct to the best knowledge of the physician.
(2) In addition, reports are admissible under this subdivision only if the physician has further stated in the body of the report that there has not been a violation of Section 139.3 and that the contents of the report are true and correct to the best knowledge of the physician. The statement shall be made under penalty of perjury.
(b) Reports of special investigators appointed by the appeals board or a workers' compensation judge to investigate and report upon any scientific or medical question.
(c) Reports of employers, containing copies of timesheets, book accounts, reports, and other records properly authenticated.
(d) Properly authenticated copies of hospital records of the case of the injured employee.
(e) All publications of the Division of Workers' Compensation.
(f) All official publications of the State of California and United States governments.
(g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues.
(h) Relevant portions of medical treatment protocols published by medical specialty societies. To be admissible, the party offering such a protocol or portion of a protocol shall concurrently enter into evidence information regarding how the protocol was developed, and to what extent the protocol is evidence-based, peer-reviewed, and nationally recognized. If a party offers into evidence a portion of a treatment protocol, any other party may offer into evidence additional portions of the protocol. The party offering a protocol, or portion thereof, into evidence shall either make a printed copy of the full protocol available for review and copying, or shall provide an Internet address at which the entire protocol may be accessed without charge.
(i) The medical treatment utilization schedule in effect pursuant to Section 5307.27 or the guidelines in effect pursuant to Section 4604.5.
(j) Reports of vocational experts. If vocational expert evidence is otherwise admissible, the evidence shall be produced in the form of written reports. Direct examination of a vocational witness shall not be received at trial except upon a showing of good cause. A continuance may be granted for rebuttal testimony if a report that was not served sufficiently in advance of the close of discovery to permit rebuttal is admitted into evidence.
(1) Statements concerning any bill for services are admissible only if they comply with the requirements applicable to statements concerning bills for services pursuant to subdivision (a).
(2) Reports are admissible under this subdivision only if the vocational expert has further stated in the body of the report that the contents of the report are true and correct to the best knowledge of the vocational expert. The statement shall be made in compliance with the requirements applicable to medical reports pursuant to subdivision (a).

Causation Evidence

This is the heart and guts of your case. In Lamb v. WCAB (1974) 11 Cal.3d 274, the Supreme Court set forth “four elementary principles”:

1. Liberal construction under Labor Code §3202;

2. Substantial evidence: any award, order or decision of the board must be supported by substantial evidence in the light of the entire record (Labor Code §5952);

3. “As a general rule, the board must accept as true the intended meaning of [evidence] both uncontradicted and unimpeached.'”

4. When a WCJ's “finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality.”


Causation evidence: the heart and guts of the case

Technicalities

As workers' compensation practice has become increasingly proceduralistic and rule ridden, it is not safe to assume anything you are relying on will be admissible or, if admitted, can support a favorable finding.

You need to be certain that the species of evidence you are relying on is admissible and can support a finding, in addition to having weight. SB 863 threw some curve balls. Labor Code §4605 now provides:

“Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

So the injured worker can still self-procure a report, but that report cannot be the sole basis for an award, and the report will be of no value unless there is also a QME or PTP report that reports on the self-procured report.

Another way SB 863 attempts to limit evidence is to require that there be both a treating physician and an AME or QME report before a Declaration of Readiness to Proceed “relating to the existence or extent of permanent impairment and limitations resulting from the injury” can be filed. See Labor Code §4061(i).

Another booby trap that preexisted SB 863 is Labor Code §4628: Subsection (e) provides: “Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.” In Scheffield Medical Group v. WCAB (1999) 70 Cal. App. 4th 868, the Court of Appeals held “That section 4628, subdivisions (a) through (e) is a strict liability statute is obvious from its plain language, at least insofar as the admissibility of a medical-legal report is concerned.”

Accordingly, make sure the report you are relying on complies with each part of LC §4628.


It is not safe to assume anything you are relying on will be admissible or, if admitted, can support a favorable finding.
Practice Tips

It’s not just about what the law allows in, but the weight of the evidence. Know what you want to achieve. Limit evidence to what really proves your case.

Questions to ask before the MSC:

1. Is it admissible?

2. Is it admissible but weak? Weight of evidence is important; is it duplicative, too much of a good thing?

3. Is it substantial?

4. How will you argue the evidence?

Evidence to leave out:

1. Testimony that seems incredible and suspicious. Expect blowback. Bad testimony can taint everything else.

2. Testimony that violates your ethics: see Rule 3-700 of the State Bar Rules of Professional Conduct. See too Rule 5-200 Trial Conduct and Rule 5-220 Suppression of Evidence.

 
Know what you want to achieve. Limit evidence to what really proves your case.

Marjory Harris, Esq. began practicing law in 1974 as a defense attorney and later became an applicant's attorney and a certified specialist. She continues to represent injured workers in the San Francisco Bay Area and Inland Empire, and mentors attorneys on big cases.

Reach Marjory Harris at (888) 858-9882 or email to MHarrisLaw@verizon.net
www.workerscompensationcalifornia.com

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