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California: Step One in Building Your Case – Lay the Foundation

September 21, 2017 (8 min read)

Before you build a house, you first make sure to construct a sturdy foundation. The same is true, in litigation. Before you build a case with evidence, you must set the foundation by verifying that the evidence you present is sufficiently credible and authentic to meet your burden of proof. Still, it is surprising as to how many practitioners are still unclear on this concept. Set forth below are some examples of how to build a foundation for an airtight case at trial.

I. Lack of Foundation Does Not Warrant Exclusion from Evidence

In the Noteworthy Panel Decision (NPD) of Ramirez v. Royalty Landscape, 2013 Cal. Wrk. Comp. P.D. LEXIS 25, the WCJ refused to admit into evidence defendant's Exhibit A and B which were payroll records “because defendant failed to lay a foundation, to properly authenticate the documents, or to have a witness testify as to the records’ trustworthiness.”

Generally, the Appeals Board is not bound by the common law or by statutory rules of evidence and procedure but may make inquiry in the manner, through oral testimony and records, that is best calculated to ascertain the substantial rights of the parties. (Lab. Code, §§ 5708, 5709; see also, Gill v. Workers’ Comp. Appeals Bd. (1985) 167 Cal.App.3d 306, 310 [50 Cal.Comp.Cases 258][Court of Appeal holding a WCJ's exclusion of relevant evidence to be a violation of due process].) This rule allows for significant latitude in the admission of relevant evidence. Then, once admitted the weight and sufficiency of the evidence are matters to be determined by the WCJ or Appeals Board and more weight may be given to the evidence presented by one party as opposed to the evidence presented by another. (Lab. Code, § 5312; Cal. Code Regs., tit. 8, § 10348; see also Clendaniel v. Industrial Acc. Com. (1941) 17 Cal.2d 659 [6 Cal.Comp.Cases 85].)

Here, the WCJ excluded payroll records relevant to the question of applicant's employment and alleged termination. However, while a party's failure to lay a foundation, to authenticate, and to corroborate documentary evidence with oral testimony may affect the weight and substantiality of the evidence, these possible deficiencies do not necessarily render that evidence inadmissible. We find that in this case, the WCJ should have admitted the payroll records, and that the lack of foundation should be considered in the weight given to the documents as to defendant’s burden of proof.


A similar result occurred in the NPD of Powell v. Vietnam Investment, 2016 Cal. Wrk. Comp. P.D. LEXIS 211, which dealt with among other proposed exhibits, “screen shots from a computer screen… without any identifying information.” The WCAB returned the matter to the trial level stating that the exhibits should be admitted into evidence and explained, “While a party's failure to lay a foundation, to authenticate, and to corroborate documentary evidence with oral testimony may affect the weight and substantiality of the evidence, these possible deficiencies do not necessarily render that evidence inadmissible.”

Although, admission into evidence is helpful, this may be a pyrrhic victory for the petitioner. If evidence is not authenticated and no foundation is laid to support the credibility of the evidence, then it may not be considered substantially sufficient to meet the proponent’s burden of proof.

II. Unimpeached Lay Testimony Constitutes Sufficient Foundation

Labor Code § 4660.1 provides that for dates of injury on or after 1/1/2013, the permanent disability (PD) rating string will consist of the following four factors:

> Whole person impairment (WPI);

> Occupational group number of the injured worker;

> Age of the injured worker at the time of the injury; and

> An “adjustment factor” of 1.4.

It is not unusual for parties to spend a good deal of time trying to rebut of the level of WPI, without considering the importance of the occupational group number, in the ultimate outcome of the level of PD. However, the parties in the NPD of Vosburgh v. California Department of Corrections, 2017 Cal. Wrk. Comp. P.D. LEXIS 52, did just that. It turns out that the occupational group number in this case played a significant role in the level of Ms. Vosburgh’s permanent disability.

Ms. Vosburgh worked as a teacher of inmates at the local prison facility. Her job title was “Academic Teacher” for students with a grade level from kindergarten through high school. On page 3-23 of the 2015 PDRS, there is the following list of group numbers and occupational group for “teacher”:











The defendant claimed that #212 was the most accurate group number in this case, as that is the one assigned to “adult education teacher,” which seems to be the closest fit to applicant’s “job title.” The applicant, on the other hand, argued that #214 was the most accurate group number, since Ms. Vosburgh’s work duties were far more arduous than a typical adult education teacher. Applicant explained that her work duties were more in line with that of an elementary school teacher, since they included inspecting the entire school room and its contents for any items that might be used as weapons by her inmate students.

The Judge in this case requested an expert opinion on this issue from the Disability Evaluation Unit (DEU). The DEU evaluator determined that the most accurate occupational group number for this injured worker was #214, based on the factual foundation laid by applicant’s credible and unimpeached testimony as to her job duties at trial. The WCJ explained:

…The injured worker is required to do extensive bending and stooping throughout the day to assure the security of the premises from hidden contraband or weapons that may be used by the inmates. She was not working in a normal educational environment. Her students are incarcerated inmates who may have committed violent crimes. She must be vigilant for her safety and for the safety of her students. The bending and stooping required for this position was more than normal for a secondary education teacher and may be similar to that of an elementary teacher. (Emphasis added.)

The WCAB affirmed the WCJ’s conclusion that the most accurate occupational group for this injured worker was #214, even though the job title, “adult education teacher” warranted a group #212 pursuant to the 2015 PDRS. This is because a proper foundation had been laid for this conclusion, since the expert opinion of the DEU rater was based on the credible testimony of both the applicant and the defense witness as to Ms. Vosburgh’s job duties.

III. Business Records Do Not Require Custodian of Record to Authenticate

The NPD of Huerta v. ACCO Engineered Systems, 2014 Cal. Wrk. Comp. P.D. LEXIS 715, dealt primarily with the issue of Third Party Credit. Labor Code Section 3861 permits the employer to take credit for payments made to the injured worker by a third party as a result of the industrial injury.

Generally, the employer has the initial burden of proof as to the amount that applicant recovered in a third party civil case. If defendant sustains that burden, the applicant must then prove that defendant was negligent. If applicant is successful, then the burden of proof shifts back to the employer to establish the comparative negligence (if any) by the applicant or a third party. (See Martinez v. Associate Engineering & Construction Company (1979) 44 Cal. Comp. Cases 1012 (WCAB en banc).)

Luis Huerta, a metal trade helper, was injured when he fell from off of a scissor lift at work on 10/2/09. As a result of the industrial accident, he filed a workers’ compensation claim, as well as a civil action against a third party, Centre Builders. On 4/25/2012, applicant and Centre Builders resolved their personal injury lawsuit for $350,000. Defendant then filed a Petition for Credit against the amount paid by Centre Builders, the third party in this case.

At trial, one of the primary issues was the comparative negligence issue discussed above. If the employer’s share was 100% of the negligence involved, that would preclude the employer from an award of credit against applicant’s third party recovery.

In order to sustain his burden of proof on the issue of employer negligence, applicant attempt to offer the following into evidence:

> The OSHA records (Exhibits 11 and 12) finding that the industrial injury was “caused by the injured employee not being properly trained to safely operate the scissor lift that he was using during the cutting operation.”

> The deposition transcript of applicant’s supervisor, Mr. Achenbach, taken as part of the third party civil lawsuit, establishing that Mr. Achenbach gave contradictory testimony from what he had told the OSHA investigator (Exhibit 10.) Both the workers’ compensation defense attorney and applicant attorney actively participated in that deposition.

The Judge admitted Exhibits 11 & 12 into evidence, but excluded Exhibit 10.

Based on the evidence, the judge determined the employer was not entitled to a third party credit, based on the fact that the employer was 100% negligent.

The defendant filed a Petition for Reconsideration and argued, in part, that the OSHA records (Exhibits 11 and 12), should not have been admitted into evidence as they were not properly “authenticated.” However, the WCAB noted that the OSHA records were “business records, and that if the records were produced pursuant to a subpoena, at the WCAB it is not usually necessary to call a custodian of records to authenticate them. (See Evid. Code, § 1271; Lab. Code, §§ 5708, 5709.)” (Emphasis added.)

Ultimately, and the WCAB affirmed the judge’s holding and ordered all of applicant’s exhibits be entered into evidence.

IV. Conclusion

As established by the cases discussed above, it is imperative to have a strategy for laying a foundation and adequately authenticating evidence needed to sustain your burden of proof at trial. Having a clear understanding of what types of evidence require a foundation is essential, but there should always be a presumption in favor of laying a foundation in order to present the best evidence possible to the trier of fact.

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