Home > Defenses, Tactics and Strategy > 5th Amendment Cake and Workers’ Comp Desserts

5th Amendment Cake and Workers’ Comp Desserts

Earlier this month, your diligent and dedicated blogger had occasion to discuss the case of City of Redondo Beach v. Workers’ Compensation Appeals Board, in which the Court of Appeals declined to review a panel decision allowing applicant-embezzler to invoke the 5th Amendment right against self-incrimination to avoid testifying about his criminal acts in a workers’ compensation case.  Now comes a panel decision with a different conclusion, although with slightly different facts.

In the case of Bobby Clements v. George Reed, Inc., applicant was receiving temporary disability benefits after sustaining an industrial injury.  However, effective deposition questioning revealed that he had his own wheelchair lift company.  When defendant subpoenaed applicant’s business and bank records, Mr. Clements invoked the 5th Amendment, reasoning that these documents would incriminate him for taking defendant’s temporary disability payments while working at and collecting profits from his own company.  A source of income is a source of income is a source of income, after all.

Your bright and studious blogger, while attending law school, must have missed the lecture about the constitutionally guaranteed right to both have one’s cake and eat it too.  Apparently, so did the Workers’ Compensation Judge and the WCAB commissioners in the Clements case.

The WCJ gave applicant the choice of his right to keep the records private or his right to pursue workers’ compensation benefits, with enjoyment of one eliminating the other.  When applicant declined to withdraw his application, the WCJ ordered applicant to produce the records, and a petition for removal followed.

The WCAB was not persuaded by applicant’s claim that the WCJ was biased, and went on to explain the distinction between a petition for removal and a petition for disqualification.  Moving on, the underlying issue was then addressed.

Citing a string of California Supreme Court cases, the WCAB held that “applicant herein can not have his cake, by receiving temporary disability benefits, and eat it too, by claiming privilege and denying defendant its equally compelling constitutional right to defend itself by rebutting applicant’s claims.”  (So, defendants do have rights in workers’ compensation law, after all!)

As a parting shot, the WCAB noted that applicant failed to make the necessary allegations to support granting the remedy of removal.  The relevant law of removal and reconsideration is discussed here.

So, if you are faced with a 5th Amendment claim, don’t be disheartened by Redondo Beach – applicant may just 5th Amendment his way out of a workers’ compensation claim.

  1. Ed Rutyna
    December 23, 2011 at 8:32 pm

    Great post on a most sensible decision!
    Practitioners should also remain alert to other consequences of an applicant asserting the Fifth Amendment at a workers’ compensation deposition: no back wages per a Labor Code 132a claim, and no Supplemental Job Displacement Benefit is the Fifth Amendment is asserted to questions re work permit and INS status, the validity of the applicant’s Social Security number, whether the applicant is in the US legally, etc. The employment of a worker not legally entitled to be and work in the USA means that the purpose of a vocational voucher, viz. obtaining employment, would be an illegal act. If there is a LC132a claim pending, once an applicant refuses to answer questions on self-employment, then it logically follows that any lost wages sought in a LC132a petition ought be waived as a matter of law.

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