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At the California Workers’ Compensation Defense Attorneys’ Association 2013 Winter Conference, a panel led by the Honorable Anne Horelly, defense attorney Sharon Renzi and applicant’s attorney John Reff presented practical and procedural insights for litigating a case in the post SB 863 era.
Judge Horelly began by asking “Where does the trial start”. [Smartly, no one from the audience answered by saying “the Court House”.] For applicants, Mr. Reff explained that the trial starts with the completion of the Application for Adjudication of Claim. Taking insight from the Court of Appeals unpublished opinion in Guild v. WCAB (1999) 64 Cal. Comp. Cases 175 (lexis.com), 64 Cal. Comp. Cases 175 (Lexis Advance), Ms. Renzi explained that as a defense attorney, she likes to file Answers in response to the Application for Adjudication.[n1] In sum, all participants agreed that the “Trial” begins with the initial pleading presented by each side.
Next, Judge Horelly asked the panelists their view of whether the applicant should be deposed in every case. Ms. Renzi noted that depositions are critical for assessing an applicant’s credibility and for obtaining facts relating to the occurrence of the injury, nature and extent of problems, and the identification of witnesses. Mr. Reff finds depositions helpful in proving up the elements of injury and perfecting the record for instances where the Applicant may not be available to testify in the future.
The panel then moved on to the issue of using the deposition at trial. In addition to witness unavailability, in compensation proceedings, the most common use of depositions is to either refresh a witness’ past recollection or impeach a witness’ credibility with prior inconsistent statements. Judge Horelly explained that the procedure and foundation required for past recollection refreshment is very different from those used in impeachment by prior inconsistent statements.
To use a deposition to refresh past recollection, the proper foundation must be presented to the Court. First, the witness must state that they do not know the answer asked at trial but did provide a correct answer to the question at the deposition. Next, the witness must review the deposition transcript, advise that it is an accurate summary of statements, and then proceed to answer questions based upon the recollection of events.
Impeachment of a witness is a totally different procedure. With impeachment, a party seeks to introduce a document containing a prior inconsistent statement as an Exhibit. The goal is to establish that the prior documented statement is inconsistent with testimony presented at trial. To establish the foundation for impeachment, the party must ask the very same question as previously done in deposition, and obtain a different response. Specificity is important. A general summary of questions leading to a conclusion is not the same as the question presented in deposition. Then, the witness must be given an opportunity to deny the inconsistency and/or explain the prior statement. Thereafter, the Judge will determine whether or not to exhibit the document into evidence. It was explained that the party should be prepared to present the actual page containing the inconsistent statement and not the entire deposition transcript.
The panel then moved on to discuss the use of Mandatory Settlement Conference statements. Judge Horelly suggested that the parties prepare the MSC statement prior to conference. This can allow you to determine if you are ready for the hearing, or if you need additional evidence. An early MSC statement can also serve as a “case development” checklist. The judge reminded the parties that the MSC statement must be legible and complete. Utilization of the correct party’s name is paramount. Do not abbreviate or partially present names. A party’s actual legal name must be used in order to have a legally enforceable opinion. While there is some judicial variance, Judge Horelly expressed that if there is more than one injury, multiple MSC statements must be completed for each date of injury. Reminding the audience of County of Sacramento v. WCAB (Weatherall) (2000) 65 Cal. Comp. Cases 1 (lexis.com), 65 Cal. Comp. Cases 1 (Lexis Advance), the importance of thoughtful stipulations was emphasized as critical because they are bindng.[n2]
Moving on to the Issue Page, Judge Horelly felt that it was best if the parties listed specific issues and affirmative defenses in the form of a question rather than simply citing cases or statutes. With exhibits, list only the material you need. The exhibits must be EAMS compliant. Medical reports should be listed in reverse chronological order with the most recent medical report first. Generally, each medical report is viewed as a separate exhibit. If exhibits are e-filed, make sure to know, and ideally list, the document number. With subpoenaed records, per Rule 10629, designate the pages to be used and combine the designated records into one exhibit. Witness should be listed by name, not position. Expert witnesses generally testify by report. Bill review experts may testify or testify by report depending on the individual case.
On the day of trial, it was recommended that the parties check in early. When you advise the WCJ that you are ready for trial, make sure to be ready to discuss the MSC statement and the evidence that you intend to submit. Have your business cards ready for the court reporter.
Once the WCJ opens the record, the WCJ controls the proceedings. While the parties may ask for a break, they cannot make the decision to go off the record. Only the WCJ may make this determination. After the parties state their appearances, the stipulation and issues will be read into the record. Exhibits will be marked and identified. Any objection should include the exhibit number and basis. If an exhibit is marked for identification pending further foundation, make sure to request its admission once the foundation has been laid. Witness testimony proceeds in order of Direct Examination, Cross–Examination, Redirect and Re-Cross. In questioning, avoid compound questions and the use of double negatives. Be clear, specific and concise.
1. In Guild, supra, the Court of Appeal held that Defendant waived the affirmative defense of statute of limitations because it did not present its claim.
2. In Weatherall, supra, a death claim was presented. At the MSC, the parties stipulated in relevant part that no cumulative trauma claim had been asserted. Applicant’s heart attack resulting in death was pled as a specific injury. The WCJ found that a specific injury did not occur. Applicant sought reconsideration, contending that the injury was then from a cumulative exposure. The WCAB granted reconsideration, reflecting that the stipulation was not based on actual evidence and that pleadings may be developed by the Board according to proof. The Court of Appeal disagreed. In a published decision, the Court observed that while the WCAB does have the authority to conform the record to proof, it does not have the discretion to invalidate “capricious decision making”. The point of a stipulation is to obviate the need for proof. As the stipulation was entered at the MSC, a procedure intended to frame and circumscribe the issues for trial, an MSC is “serious business”. As the record did not exhibit good cause for disregarding the stipulation, the Court of Appeal reversed the WCAB and found the stipulation binding.
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