California: Hearsay in Workers’ Compensation Cases

One of the first things that new workers’ compensation attorneys discover is that the rules of evidence that they studied in law school don’t necessary apply in workers’ compensation trials. A prime example of this is the Hearsay Rule which prohibits the admission into the trial record of hearsay evidence unless certain exceptions apply.

The Hearsay Rule and its exceptions have been codified in California in Evidence Code sections 1200 et seq. Section 1200(a) defines hearsay as follows:

“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”

The original purpose of the Hearsay Rule was to prevent reliance on evidence that could well be nothing more than gossip and where the declarant can’t be cross-examined by the adverse party. In many cases, the lack of ability to cross-examine the declarant may be a violation of the 6th Amendment to the Constitution.

If an out of court statement is offered to prove something other than the truth of the matter stated, it is not hearsay. For example, if a witness testifies that he observed X yelling at Y and calling him an idiot, such testimony would not be hearsay if offered to prove that X was angry with Y. However, it would be hearsay if offered to prove that Y was an idiot.

The admissibility of hearsay evidence before the WCAB is based on the following two Labor Code sections:

• 5708. All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they 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.
• 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.

[Emphases added by author]

Because of these Labor Code sections, evidence that would be barred in a civil or criminal trial is often taken into the trial record in Workers’ Compensation cases with the proviso that any defects in that evidence will go to its weight rather than its admissibility. This does not mean that in Workers’ Compensation proceedings, all bets are off in terms of the evidence that can be presented. On the contrary, testimony and documents that qualify as hearsay are often admissible in civil proceedings because they fall into one or more of the statutory exceptions to the hearsay rule in the Evidence Code.

Even in the case of hearsay that would be excluded outside of Workers’ Compensation, a WCJ or the WCAB may and in fact has a duty to place absolutely no reliance on hearsay evidence that doesn’t make sense, is not credible, and, in the words of Labor Code §5708, would not serve to “carry out justly the spirit and provisions of workers’ compensation law.” In fact, the case law contains many examples of hearsay evidence that was admitted into the trial record, but rejected as an improper basis for a finding of fact.

In one of the leading cases on hearsay, Fordyce v. WCAB (Barry) (1983) 149 Cal. App. 3d 915, 48 Cal. Comp. Cases 904, the WCAB affirmed a WCJ’s award of death benefits to a widow whose husband died of lung cancer, based upon a finding that he was exposed to asbestos in brake linings in his job with the defendant employer. The Court of Appeal determined that the only evidence of asbestos exposure was contained in the report of the applicant’s medical-legal doctor who cited the brake lining asbestos exposure in his report as the cause of his cancer, and attached to the report a government brochure which mentioned use of asbestos in the auto industry. The Court noted that it couldn’t tell whether the applicant told the doctor about the asbestos exposure or the doctor assumed it from the applicant’s work history and the content of the brochure. In any event, the evidence was either double or triple hearsay and there was no reason to believe that either the applicant or the doctor had any knowledge of the composition of brake linings. Thus, the award was annulled. For those who are interested in a more in depth analysis, the case contains a good discussion of the use of hearsay in workers’ compensation cases.

Another old case, Pacific Employers Insurance Company v. I.A.C. (Collins) (1941) 47 Cal. App. 2d 494, 6 Cal. Comp. Cases 270, contains an extensive analysis of hearsay in workers’ compensation. Here, the Court of Appeal reversed a decision of the I.A.C., the predecessor of the WCAB, that granted a petition for new and further disability based on the applicant’s hearsay testimony that her personal physician told her that her present condition was due to her original industrial injury. The Court found that the hearsay testimony of a lay person was no substitute for expert medical opinion. Furthermore, even assuming the truthfulness of the applicant’s statement, there was no evidence, indirect or otherwise, that her personal physician was qualified to offer testify on the subject.

A recent WCAB panel decision, Sandoval v. Martinez, 2018 Cal. Wrk. Comp. P.D. LEXIS 629 (Appeals Board panel decision), involves a death case where the defendant claimed the decedent was a residential worker who was excluded as an employee under the Labor Code. The decedent’s daughter, who was a dependent/applicant, testified concerning her observations and what her father told her. The employers, husband and wife, testified as well as their children. Thus all witnesses had a distinct financial interest on both sides. However, there was no other evidence. The WCJ believed the daughter/applicant and found her hearsay testimony to be more credible than that of the employer witnesses. However, he explained in great detail in his Report and Recommendation on Reconsideration how he assessed the credibility of the witnesses and why he found the hearsay testimony to be more credible than the live testimony.

Another case in which the hearsay testimony was found to be more reliable than direct testimony was the unpublished opinion in Knight v. WCAB (1991) 56 Cal. Comp. Cases 166 (court of appeal opinion not published in official reports). Here, the Court of Appeal affirmed a decision of the WCAB finding that the injury was barred by the Going and Coming Rule. The finding was based on testimony that was double hearsay, but there was reason to conclude the hearsay testimony was reliable. The issue presented at trial was whether the applicant was on his way to file job-related papers at the time of his serious auto accident. He apparently had amnesia for the time period surrounding the accident but testified he thought he was probably on his way to file the papers. The company president testified that applicant’s secretary told him that the applicant told her he was going to file the papers the next day.

The WCJ relied on the double hearsay of what applicant allegedly told his secretary because the site of the accident was closer to his home than the place where the papers were to be filed which would have been on his way to work the next day. Thus, the totality of the circumstances made the hearsay testimony more reliable than the applicant’s admittedly impaired memory. The Court commented in a footnote, “The hearsay appears to have been of the type upon which reasonable persons might rely and it was therefore properly admitted and could properly be used to support the findings.”

In another unpublished appellate decision in Laidlaw v. WCAB (1986) 51 Cal. Comp. Cases 397 (court of appeal opinion not published in official reports), the WCAB found against a lien claimant, Kaiser Permanente, in connection with employment and injury disputes because it believed that the applicant’s hearsay testimony, contained in the Kaiser records, that he was injured while working for the defendant employer, was insufficient to carry his burden of proof. Reversing, the Court of Appeal explained why it found the hearsay to be reliable in an extensive discussion of the subject. It also found that while the statement was double hearsay, each component of the hearsay fell into exceptions to the hearsay rule. The Court annulled the WCAB’s decision and remanded for further proceedings consistent with its opinion.

In a more recent panel decision in Redwine v. County of Merced, 2012 Cal. Wrk. Comp. P.D. LEXIS 311 (Appeals Board panel decision), the applicant filed a Labor Code §132a claim for unlawful discrimination. She testified that her supervisor made disparaging comments about her to the staff. No other witness confirmed this testimony and the supervisor denied it. In the Report and Recommendation on Reconsideration which was adopted by the WCAB panel, the WCJ stated: “Applicant's claim must fail for the mere fact that Applicant cannot establish, on a factual basis, that the statements were actually made.” Presumably, if the disparaging statements had been made to “the staff,” as claimed by the applicant, she should have been able to find at least one other witness to back up her story. Thus, her hearsay testimony was unreliable.

It seems clear from a reading of the case law that hearsay in workers’ compensation cases is not an indication that the WCAB blindly accepts double and triple hearsay without corroboration or reason to believe the evidence is accurate. Rather, the case law confirms that much of the proffered hearsay would be admissible under one of the statutory exceptions to the hearsay rule and in the other cases, the circumstances are such that the hearsay is reliable.

Additionally, if hearsay testimony could easily be corroborated by direct testimony and documents that shouldn’t be difficult for the party to obtain, the WCAB and the Courts are likely to view the hearsay evidence with suspicion.

PRACTICE TIP: Although hearsay evidence is not inadmissible, there are circumstances where it should not and cannot be relied upon, especially in the case of double and triple hearsay. Therefore, it may be good practice to object to unreliable hearsay testimony and documents at trial merely to point out to the WCJ that they do not constitute substantial evidence to prove any disputed fact.

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