Challenging Witness Credibility in a Workers’ Compensation Case

By Jeff Stander

In the hypothetical case, Jesse Jurkowitz v ABC Company, it was alleged that the employee, on the second day of employment, injured his back as a result of lifting a box. Your client, ABC Company, timely rejected the claim pursuant to Labor Code Section 5402 and conveyed to you her fervent belief that the alleged trauma never occurred.

Immediately after receiving the case, you prepare the Initial Advice Letter and, pursuant to the client’s authorization, complete multiple acts of discovery. You have filed a Declaration of Readiness to Proceed for a Labor Code Section 5502(c) priority conference and ultimate trial on the issue of Injury AOE/COE.

Jurkowitz, in order to fulfill his burden of proof pursuant to Labor Code Section 5705, only need testify that he was working and felt pain in his back. The Court must accept as true a witness’ testimony that is both not contradictedand unimpeached. (McAllister v WCAB (1968) 33 CCC 660; Bracken v WCAB (1989) 54 CCC 349) Because the Trial Judge will give no weight to your client’s “fervent belief,” how can you use the fruits of discovery to demonstrate that Jurkowitz’ allegations are not worthy of belief? Even assuming that you are able to adduce rebuttal and impeachment evidence which confronts the employee’s credibility, how do you avoid having the Trial Court apply the liberal interpretation rule mandated by Labor Code Section 3202 to award benefits? The answers will be found in your thorough organization, preparation and creativity.

Casting doubt on the veracity of a witness has been in existence since the inception of American jurisprudence. In fact, the essence of this theme is encapsulated in a well-established jury instruction, BAJI Number 2.22, which provides:

• A witness false in one part of his/her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely on a material point unless from all evidence you believe that the probability of truth favors his/her testimony in other particulars.

With this in mind, the primary vehicle in attacking the credibility of a witness is his/her deposition. Because Labor Code Section 5710 mandates that depositions in workers’ compensation cases be conducted “in the manner prescribed by law for like depositions in civil actions in the Superior Courts of this state” under California Code of Civil Procedure Section 2016.010, the utterance of false testimony subjects the deponent to the penalty of perjury. Prior to conducting the deposition, all medical and employment data, as well as any other relevant records, should be subpoenaed. That data should be employed in formulating the interrogation. I do not recommend bringing the records into the deposition room. Although Labor Code Section 4055.2 requires that copies of subpoenas be served on “all parties of record in the proceeding,” many applicant’s attorneys don’t read their files before preparing their clients for a deposition. This deficiency is more apparent where the employee is represented by a contract attorney. By formulating your questions in a manner that commands a yes or no answer and not allowing any wiggle room, inconsistencies can be created between the testimony and the existing medical reports and/or records. In no particular order of importance, the following represents areas in which the employee’s credibility can be challenged:

Description of job duties – Most employees tend to exaggerate the arduousness of their job duties in order to rationalize the severity of the injury sustained. Compare his/her description of the job with either a job analysis/description or the information that can be furnished by his supervisor. The presentation of documentary evidence regarding the nature of the job duties or of live testimony from an individual employed in a managerial capacity will cast a negative light on the employee. The correct description of the job will either tend to reveal that the injury could not have occurred in the manner alleged, or, that the attempt to exaggerate should color the remainder of his testimony regarding all other issues. Additionally, any medical report containing an inaccurate description of the job duties should be deemed not to constitute substantial evidence.

Employment history – After securing from the employee that he/she was completely truthful on the application for employment, and eliciting a history of prior employment, determine from the personnel file whether all of his/her employers were enumerated. The failure to do so would result in suspicion that he/she had something to hide, and should be revealed at trial, through a thorough interrogation. Of course, all records of prior employers would be subpoenaed after the deposition in order to identify incriminating information.

Accident history – Assuming that you utilized an ISO check to identify previous industrial injuries, auto accidents and other traumas prior to the deposition, obtained the relevant records and secured the employee’s specific denial of any prior traumas, the existence of these inconsistencies will reflect that the employee is not credible. The employee’s failure to advise the examining physicians of his/her previous traumas will render their reports worthlessand will also demonstrate his/her propensity for not telling the truth. In Alvarez v WCAB (1997) 62 CCC 677 (Writ Denied), the WCAB reversed the compensability finding of the Trial Judge where the employee vehemently denied, falsely, ever having filed a workers’ compensation action. Lack of intelligence has no bearing on credibility. It was held that the mere fact that the employee had a limited education was not dispositive of his credibility.

Medical history – During the deposition, the employee must be specifically queried regarding all physicians, medical facilities and hospitals at which he received treatment or exam during the 10-year period prior to the alleged industrial injury. It’s imperative that the deponent be questioned regarding whether he/she was truthful with each physician or practitioner. (A negative answer will, in itself, cast doubt regarding the employee’s credibility.)  The employee should also be questioned regarding whether he/she experienced any pain or discomfort in, or ever received treatment to, any of the body parts alleged on the application. The procurement of records containing contrary information will create a basis for impeachment. This tactic was successfully employed in Carroll v WCAB (1973) 38 CCC 81 (Writ Denied). There, the employee alleged injury AOE/COE to his left arm. He vehemently denied ever having experienced pain or discomfort prior to the alleged incident at work. The voluminous records demonstrated a longstanding history of left upper extremity symptomatology. Additionally, his supervisor contradicted the employee’s claim that he immediately reported the injury. Hurting the credibility of the employee can also occur where no rebuttal testimony is provided and, instead, the discrepancies between the employee’s version of events and the contents of the voluminous records can be exposed through a skillful cross examination. In Kocalis v WCAB (1997) 62 CC 1299, the employee, a firefighter for the City of Hawthorne, claimed that the stress of his job caused injury to his cardiovascular system and a stroke. However, his story was repudiated by the contents of the longstanding medical records. The WCAB, on Reconsideration, ultimately held that where there was a substantial discrepancy between the employee’s testimony and the contents of the records, the individual will be deemed non-credible, supporting a take nothing decision. (Incidentally, the victorious defense attorney in this case was SRTK’s Tim Kinsey.)

Personal Data – This is an area in which your creativity must stretch the envelope in order to secure additional bases upon which to cast doubt on the employee’s credibility. Use information obtained in this area in order to solidify the foundation for the effective impeachment. For example, always question the deponent regarding his family of origin in terms of siblings to prevent the employee from attempting to explain damaging video on the ground that “that was my identical twin brother.” Clearly, a basis must be formulated in order to demonstrate that the information sought is reasonably calculated to lead to the discovery of admissible evidence. In many cases, your job will be made easier when applicant’s counsel is not paying attention during the deposition. In Barber v WCAB (1998) 63 CCC 1472, the employee was a disgruntled former insurance claims manager who alleged the occurrence of an industrial injury to his psyche and orthopedic system. He denied at the deposition, and failed to advise all physicians who examined him, of his longstanding cocaine usage. Although the Trial Judge issued a take nothing decision, which was endorsed by the WCAB at the Reconsideration level, the District Court of Appeal reversed, holding that his lack of honesty regarding his cocaine use only pertained to the psychiatric component and would not adversely affect his credibility regarding the orthopedic allegation. Fortunately, this case was not certified for publication. In all cases involving drug or alcohol abuse, questioning should be formulated which incorporates the well-recognized principle that dishonesty is the primary characteristic of any substance abuse disorder and should result in the cracking of the employee’s credibility.

Mechanism of injury – Common sense dictates that, whenever a legitimate industrial injury occurs, the employee will report same to his/her employer. An employee’s claim that a report was made must be investigated. A supervisor’s testimony that no such report was made will diminish the employee’s credibility. In Flusher v WCAB (1966) 31 CCC 199 (Writ Denied), the employee claimed that he immediately advised his supervisor of the claimed injury; however, the supervisor testified that the only trauma of which he was aware was the employee’s non-industrial water skiing accident. The Trial Court based its take nothing decision on the employee’s lack of credibility. The prestige accorded to the occupation of the allegedly injured employee will not prevent an adverse credibility finding where an injury is not reported. Paul Nash served as a Judge at the Van Nuys WCAB for many years. He claimed that he either fell or struck his legs against items in his courtroom and office on several occasions which contributed to his numerous debilitating medical conditions. Several individuals testified that there was no report of, nor any witnesses to, these alleged occurrences. The Trial Court’s finding of no injury AOE/COE based on lack of credibility was upheld by the District Court of Appeal. (Nash v WCAB (1994) 59 CCC 324). Based on the employee’s deposition testimony, the Trial interrogation of the employee should be sufficiently detailed in order to demonstrate the absurdity of the allegation of industrial injury. In Lee v WCAB (2012) 77 CCC 847 (Writ Denied), the employee provided a convoluted description of the mechanism of injury consisting of the slipping of a baggage cart causing the handle to strike the employee’s face and pin him against another object. The Court issued a finding of no industrial injury on the ground that his testimony was incredible because it was not only confusing and evasive but also contradictory.

Complaints, limitations and restrictions – In every case, a detailed deposition interrogation should occur regarding the manner by which the claimed injury has affected the individual’s ability to perform activities of daily living as well as the nature, duration, severity, intensity and frequency of the subjective symptoms. In this manner, if post-deposition video is secured, the employee can be cross-examined regarding the existence of any discrepancies. The employee may testify that his/her condition improved; however, that testimony will serve to undermine the opinions of the physicians whose conclusions were based on an inaccurate history. In the event that pre-deposition video is obtained, more specific questions should be propounded in terms of the ability to perform particular activities and the time frame of inability alleged. In Lopez v WCAB (1997) 77 CCC 741 (Writ Denied), the employee claimed injury to multiple portions of his body causing various limitations in performing physical activities. The video projected at Trial unequivocally demonstrated his ability to perform those functions. In issuing a decision beneficial to the employer’s interests, the Trial Judge stated that the employee was incredible in all respects.

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R. Jeffrey Stander is Of Counsel to Stander Reubens Thomas Kinsey. Prior to joining the firm in 1982, he was associated with law firms exclusively handling workers' compensation and general civil matters, and acting as in-house counsel for Western Employers' Insurance Company. Mr. Stander is a Certified Specialist in Workers' Compensation law, a member of the Assessment Committee of the Lawyers’ Assistance Program for the State Bar of California, and has been an instructor for the Insurance Educational Association. He received his Bachelor’s degree from the University of Southern California and his Juris Doctor degree from the University of San Fernando Valley College of Law.  (www.srtklaw.com/attorneys)