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California: Depositions of Injured Workers

August 24, 2023 (17 min read)

By Hon. Robert G. Rassp, Presiding Judge, and Hon. Clint Feddersen, Workers’ Compensation Judge

(This article is excerpted from California Workers' Compensation Discovery (LexisNexis).)

Disclaimer: The material and any opinions contained in this book are solely those of the authors and are not the opinions of the Department of Industrial Relations, Division of Workers’ Compensation, or the WCAB, or any other entity or individual. The materials are intended to be a reference tool only and are not meant to be relied upon as legal advice.

The taking of a deposition by defense counsel of an alleged injured worker who has filed a workers’ compensation case is routine and expected in almost every case. Counsel who represent injured workers should engage in best practices by meeting in person with the injured worker client to prepare them for their deposition. Some attorneys like to meet the client in person at the attorney’s office prior to the date of the deposition while others wait until the deposition date and meet the client for preparation an hour before the deposition occurs. Since the COVID-19 pandemic, most depositions are occurring via ZOOM or other electronic video-conference platform. The standard of care to prepare an injured worker or witness for a deposition is the same regardless of how or where the deposition is to be taken.

Counsel for injured workers should understand that most lay people have not had any formal contact with the legal system except for possibly a traffic ticket. Most people have not had the experience of attending a court proceeding or testifying under oath. Most lay people do not know that testimony in formal legal proceedings is under oath, with parties and witnesses testifying under penalty of perjury. Most lay people do not understand the significance of taking an oath. Counsel for injured workers must inform their clients about the significance of taking an oath and testifying, that their deposition testimony has the same force and effect as if they were testifying in front of a judge. As stated in Code of Civil Procedure section 2094 below, counsel has to impress upon their client the duty to “awaken the person’s conscience and impress the person’s mind with the duty to tell the truth” even if the information is perceived to be potentially damaging to their case. All witnesses must be advised that if they answer a question, it is assumed they understood the question.

If the injured workers or any witness is not English proficient, then a certified language interpreter is required to be provided by the defendant at the defendant’s expense pursuant to Labor Code sections 5710(b)(5) and 5811(b)(1) and (2), and California Code of Regulations, title 8, sections 9795.1 through 9795.5. Interpreters have a statutory duty to remain neutral and unbiased in performing their duties as an interpreter, and defendants must pay for the interpreter to prepare the injured worker with the injured worker’s attorney prior to the deposition on the date of the deposition. Specifically, Labor Code section 5811(b)(2) states in relevant part:

The duty of an interpreter is to accurately and impartially translate oral communications and transliterate written materials, and not act as an agent or advocate. An interpreter shall not disclose to any person who is not an immediate participant in the communication the content of the conversation or documents that the interpreter has interpreted or transliterated unless the disclosure is compelled by court order. An attempt by any party or attorney to obtain disclosure is a bad faith tactic that is subject to section 5813.

A reasonable allowance for fees of a certified interpreter is payable by the employer or insurer as an additional benefit for a deponent under Labor Code section 5710 if such services are necessary. Labor Code section 5710(b)(5) provides that the employer must pay for the services of a certified interpreter. Payment is to be in accordance with a fee schedule set by the Administrative Director. These provisions eliminate the need for the interpreter to file a lien with the WCAB. It is the duty of the party producing a witness needing an interpreter to arrange for the presence of a qualified and certified interpreter [Lab. Code, § 5811(b)(1)]. The interpreter’s role is to translate accurately and impartially and not to act as an agent or advocate [Lab. Code, § 5811(b)(2)]. The interpreter is not to disclose to any person who is not an immediate participant in the communications the content of the conversations or documents the interpreter has interpreted or transliterated unless such disclosure is compelled by court order. An attempt by an attorney or party to obtain disclosure is a bad faith tactic that is subject to sanctions under Labor Code section 5813 [Lab. Code, § 5811(b)(2)].

The regulations pertaining to interpreter’s fees and certification became effective August 13, 2013. However, to be a qualified interpreter for purposes of medical treatment appointments, an interpreter is not required to meet the requirements of Labor Code section 4600(f) but must meet any requirements established by rule by the Administrative Director that are substantially similar to the requirements set forth in Health & Safety Code section 1367.04 [Lab. Code, § 4600(g)]. They are intended to apply to all situations in which an interpreter may be needed in workers’ compensation proceedings. They are found at California Code of Regulations, title 8, sections 9795.1, 9795.1.5, 9795.1.6, 9795.3 and 9795.5.

Definitions used in the regulations appear at California Code of Regulations, title 8, section 9795.1. The terms defined are “claims administrator,” “full day,” “one-half day,” “travel time,” and “market rate.” Certification for interpreters for hearings, depositions or arbitrations is provided for at California Code of Regulations, title 8, section 9795.1.5. Certification of interpreters for medical treatment appointments or medical legal exams is addressed at California Code of Regulations, title 8, section 9795.1.6. Interpreter fees are addressed in California Code of Regulations, title 8, section 9795.3. An interpreter’s certification may be verified by consulting one or more of the Interpreter Directories listed in California Code of Regulations, title 8, section 9795.5.

Injured workers whose deposition is scheduled should be informed by their counsel that a deposition is a fact-finding legal proceeding and the law requires them to always tell the truth. Counsel needs to explain what testimony under oath means in layman terms and that the defense attorney will cover what are called “admonitions” at the beginning of the deposition proceeding. Those admonitions include but are not limited to the following:

  • The injured worker will be placed under oath by the court reporter and the witness must always tell the truth.
  • Code of Civil Procedure section 2094 states as follows:

(a) An oath, affirmation, or declaration in an action or a proceeding, may be administered by obtaining an affirmative response to one of the following questions:

(1) “Do you solemnly state that the evidence you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth, so help you God?”

(2) “Do you solemnly state, under penalty of perjury, that the evidence that you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth?”

(b) In the alternative to the forms prescribed in subdivision (a), the court may administer an oath, affirmation, or declaration in an action or a proceeding in a manner that is calculated to awaken the person’s conscience and impress the person’s mind with the duty to tell the truth. The court shall satisfy itself that the person testifying understands that his or her testimony is being given under penalty of perjury.

  • If the injured worker does not understand a question, it is acceptable and expected to tell defense counsel the injured worker does not understand a question since the law assumes a person understands a question when they answer it while under oath.
  • If a question calls for a “yes” or “no” answer, just answer yes or no and the attorney will ask the witness for more details if necessary.
  • Do not volunteer any information that is not being asked.
  • If the injured worker does not remember something that is asked about during the deposition, it is acceptable to answer, “I don’t know,” “I don’t recall,” or “I don’t remember.”
  • If the injured worker or witness has information at home or they provided the information to their attorney, they will be asked to provide the information when the witness reviews the deposition transcript, and a blank space will be left to fill in the missing information.
  • If the injured worker wants to consult with their attorney after a question is asked and before it is answered, the attorneys will go off the record so that the injured worker can consult with their attorney and then resume the deposition proceeding.
  • At the conclusion of the deposition, the court reporter will prepare a verbatim transcript of the deposition testimony and the injured worker will have an opportunity to review their testimony and to make any written corrections, additions, or changes they want. Defense counsel will warn the witness that if any material changes are made to the witness’s testimony, any defense attorney can comment upon those changes to the trial judge, which could affect the credibility of the witness. The injured worker will be advised that they will receive a transcript of their deposition testimony and they will be given an opportunity to make any changes, corrections, or additions to their testimony. However, defense counsel may comment on those changes during trial and that might affect the injured worker’s credibility at the time of trial.
  • Counsel should then advise the injured worker to answer questions as accurately as possible and, if they want to take a break during the deposition, to consult with their attorney, they are welcome to do so. In fact, all deponents should be advised that they can request a break at any time during the proceedings to use the restroom, consult with their attorney, or for any other valid reason.
  • As part of the preparation for an injured worker to be deposed, counsel should always review the mechanism of injury or injuries that are being claimed—specific, cumulative trauma, or a combination of them. Counsel should review all relevant subpoenaed medical records, personnel files, and medical reports so that the injured worker is very familiar with their own personal, employment, and medical histories.

From a defense attorney’s perspective, questions that are asked of an alleged injured worker during a deposition is based on the procedural posture of the case when the matter was referred to defense counsel by a claims professional. For example, if the employer or insurer has accepted liability for the alleged injury, then defense counsel may still want to cover the issue of the mechanism of injury just to make sure there is no dispute over how the alleged injury occurred. For cumulative trauma injuries, defense counsel would want to know when the injured worker first suffered from a disability and knew or should have known their medical condition was work related and how they discovered that fact.

Questions asked by defense counsel should include the following categories of questions:

  • Injured worker’s demographics—name, AKAs, addresses for last 15-20 years, date of birth, marital status, household members, children (ages and where they live), social security number (given off the record) [see Code Regs., tit. 8, § 10455(e)], criminal convictions if any, and, if a psychiatric injury is claimed, whether the injured worker was ever arrested in the last 15 years.
  • The subject matters below should follow an organized order depending on information defense counsel wants to verify while the injured worker is under oath. In addition, the best practice for defense counsel is to use a “journalistic approach” with questioning—ask who, what, where, when, how, and why for each category of questions.
    • EMPLOYMENT HISTORY (prior to and subsequent to alleged industrial injuries)
  • The injured worker’s employment history (where they worked, title of job, duties, prior injuries at work, wages).
  • Employment with employer who current claim(s) is against. Name(s) of supervisors, managers, how long employment was prior to date of injury, location of employment, duties performed, wages paid, time off work due to injury.
  • Concurrent employment, including any “gig economy” activities.
  • Medical history (current primary treating physician for industrial injury, if any; which health insurance coverage from 15 years ago to present; if HMO, facilities attended; hospitalizations (overnight); emergency room visits; urgent care facilities.
  • Medications (current) and whether they affect the person’s ability to testify accurately and completely; who prescribed all medications.
  • Marijuana and alcohol use history.
  • Injury history: prior on the job injuries, auto accidents, slip and fall, trip and fall, sports related, unusual illnesses or disabilities (defense counsel to obtain details if any of these items exist).
  • Mechanism of current claimed injuries, including parts of body claimed. Was injury reported to supervisor or manager or HR department?
  • Any lost time from work due to alleged injuries.
  • Medical treatment since date of alleged injury—did injured worker seek treatment through employer’s MPN and/or seek treatment on their own or through their attorney?
  • Current physical or mental complaints that the injured employee attributes to their work injury.
  • How the injuries currently affect the injured employee’s activities of daily living (defense counsel may consider also asking what the injured employee’s ADLs were before the alleged work related injuries).
  • If psyche is alleged in the case, defense counsel may want to bifurcate the deposition into two separate sessions, lasting less than 7 hours of total testimony. Other times, it is best to include the psychiatric-related questions in one session with everything else.
    • Psychiatric history from date of birth to the present.
      • Diagnosis, treatment, hospitalizations, medications.
    • Look for evidence of child abuse or neglect.
      • This includes being a direct victim or observing it among family members.
    • Individual and family history of mental illness.
    • Individual and family history of substance use disorders (alcohol, drugs).
    • Actual events of employment that may cause a DSM diagnosis.
    • Identify potential personnel actions [see Larch v. Contra Costa County (1998) 63 Cal. Comp. Cases 831 (Appeals Board en banc decision)].
    • Non-industrial stressors (bad marriage, ugly divorce, death of loved one).
    • Work-related stressors.

Can an injured worker’s attorney ask their own client questions during a deposition taken by defense counsel? There is a division of thought on this issue. Some defense attorneys take the position that the deposition is theirs alone and the injured worker’s attorney is not allowed to ask questions of their own client. A judge would allow questions from the injured worker’s attorney in a deposition because the deposition transcript will probably be read by a medical-legal evaluator and perhaps by a judge and a complete and thorough record of the injured worker’s testimony is essential. The injured worker’s attorney should be given a reasonable opportunity to rehabilitate any negative testimony that is elicited by defense counsel or of relevant testimony that was not elicited so that anyone who reviews the deposition gets a full picture of the case. In addition, cross-examination by defense counsel during a deposition may permit the injured worker’s attorney to clarify prior answers.

In addition, at trial counsel may use any party’s or witness’s deposition testimony during cross-examination to impeach the credibility of trial testimony.

In workers’ compensation cases, at the conclusion of the deposition of the injured worker or witness, counsel in Southern California usually waive the provisions of the Code of Civil Procedure (section 2025.520 for stenographic depositions, section 2025.530 for audio or video depositions). The deponent does not have to come to the court reporter’s office to review the transcript, make corrections or additions, and sign it under penalty of perjury or verify the content of a video deposition. Instead, in most cases the parties stipulate that the reporter is relieved of their obligations under the Code of Civil Procedure and the original and one copy of the deposition transcript be sent by the court reporter to the injured worker’s attorney, who will review the transcript with the deponent and notify opposing counsel in writing of any changes, corrections, or additions to the testimony, sign it, and retain custody of the original until the day of trial. Usually counsel also stipulates at the conclusion of the deposition that the injured worker’s attorney will retain custody of the original deposition transcript and will produce it at the time of trial.

In parts of California, especially in northern areas, parties stipulate to complete the deposition process “per Code,” which means the court reporter is not relieved of their obligations under Code of Civil Procedure sections 2025.520 and 2025.530. Those sections have a detailed procedure for a witness’s review of a deposition transcript while the transcript is in the custody and control of the court reporter.

Once a deposition of the injured worker has been completed, the injured worker’s attorney will file a Petition for Labor Code Section 5710 Fees under California Code of Regulations, title 8, section 10547. Here is a checklist of the requirements for the contents of a Petition for Attorney’s Fees for the injured worker’s deposition. Note that there is no provision of payment of attorney’s fees for a deposition of any other witness besides the injured worker, dependent, heir, or personal representative:


□    Copy of written demand with a proof of service on defense counsel and the claims administrator.

□    Copy of any response to the demand for payment.

□    Thirty days have elapsed from the service of applicant’s counsel written demand for Labor Code section 5710 fees, before a petition for fees can be filed.

□    Copy of a proof of service of the Petition for Labor Code Section 5710 fees and its attachments on the applicant and defendant alleged to be liable for paying the fees.

□    Name of the attorney who attended the deposition, along with the attorney’s state bar number.

Case Law on Depositions of Injured Workers

Can a defense attorney ask an injured worker in a deposition what the injured worker’s immigration status is? There are a multitude of problems with this question. First of all, if the injured undocumented worker answers the question in the affirmative, then they are admitting to have committed a crime. So the injured worker’s attorney would best advise their client not to answer the question and to assert the 5th Amendment to the U.S. Constitution to remain silent so as to not incriminate themselves. Secondly, an employer did in fact hire the injured worker and may not have verified the employee’s eligibility to work in the United States. Plus the undocumented injured worker is entitled to the same workers’ compensation benefits as a legal citizen or a person who has legal immigration status with permission to work in the United States. The employer may not be able to allow a person who is not legally in the United States to be reinstated for regular, modified, or alternative work when an employer ordinarily would offer a return to work when an injured worker is released to do so by a treating or evaluating physician.  Counsel was not allowed to force a plaintiff in a personal injury case arising out of a work injury to disclose their immigration status. See Manuel v. Superior Court (Brightview Landscape Services, Inc. RPI) [(2022) 82 Cal. App. 5th 719, 298 Cal. Rptr. 3d 629, 87 Cal. Comp. Cases 746]. This case arose out of a motion to compel the injured worker plaintiff in a wrongful termination case to disclose if he was legally entitled to work in the United States. The Court of Appeal held that Labor Code section 1171.5 and Government Code section 7285 prohibit discovery into a person’s immigration status. See also Salas v. Sierra Chemical Co. [(2014) 59 Cal. 4th 407, 173 Cal. Rptr. 3d 689, 79 Cal. Comp. Cases 782].

© Copyright 2023 LexisNexis. All rights reserved. This article was excerpted from California Workers’ Compensation Discovery (LexisNexis, August 2023), a book that is part of the multi-volume set, Rassp & Herlick, California Workers’ Compensation Law (LexisNexis).