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
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
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
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]?
Q. Has there been any change in your condition
since you saw Dr. [AME]?
Q. Did you have a chance to review Dr. [AME]'s reports and deposition
A. Yes, I read all of them.
Q. Was the history you gave Dr. [AME]
of your symptoms and complaints substantially accurate?
The same approach can be used to ask the applicant about vocational
Other witnesses may be necessary, such as co-workers or supervisors, when injury
AOE-COE is in dispute, or when surveillance video is presented,
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
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
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.”
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
"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
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
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,
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