On November 29, 2010, the Workers' Compensation Appeals Board issued its opinion in Vargas v. Select Staffing, (2010) Cal. Wrk. Comp. P.D. LEXIS 548, discussing whether an applicant can avoid answering particular questions at a deposition, citing the 5th Amendment privilege against self-incrimination. Based on Labor Code section 5710(a), the WCAB held that a Workers' Compensation Judge may compel an applicant to answer "directly relevant" questions despite protections under the California and U.S. Constitutions.

The case arises from an applicant's claim that, while employed as a fruit peeler from September 30, 2008 to September 30, 2009, she sustained a cumulative trauma industrial injury to her neck, shoulder, upper extremity, nervous system, psyche, and digestive system. Upon being deposed, applicant refused to answer questions regarding Social Security numbers, dates of birth, possession of a California driver's license, and use of other names, citing her Fifth Amendment right against self-incrimination.

Defendant filed a Petition for Order Suspending Action and Barring Benefits, arguing that it had a right to discover information relevant to applicant's medical conditions, prior work history, and previous claims. Further, defendant pointed out that the information sought was necessary to properly search indexes for additional information about the applicant. Applicant countered with a Petition for Sanctions, Attorney's Fees and Costs.

A hearing was held on August 10, 2010, with a decision issued on September 8, 2010 denying each side's petition. Applicant's petition was denied based on a finding that defendant did not utilize bad-faith tactics or act in a manner solely intended to cause unnecessary delay. Defendant's petition was denied because it "did not allege that the applicant failed or refused to submit to examination by a practicing physician." Defendant filed a Petition for Reconsideration while applicant did not.
In his report, the WCJ discussed only Labor Code sections 4050, 4053, and 4054, which address an employee's failure or refusal to submit to a medical examination upon the employer's request or after direction by the WCAB. On reconsideration, the WCAB pointed out that defendant's petition actually relied on Labor Code Section 5710(a), which provides that the deposition of witnesses and production of documents may be required on "relevant case authority." In searching for such case authority, the Board heavily relied on the 1979 case Powers v. Workers' Comp. Appeals Bd. (44 Cal. Comp. Cases 906). In Powers, a widow filed an application for death benefits alleging that her husband's murder was industrial. The defendant attempted to depose applicant regarding her relationship to the murderer, but she refused to answer a question about her current address, claiming that her answer might incriminate her. As it turned out, applicant had moved out of the home she shared with her husband pending dissolution proceedings, and moved to the same address as the man convicted of murdering her husband.

The defendant in Powers argued that the questions were relevant to whether the decedent's murder involved a personal grievance and did not arise out of and occur in the course of employment. The Board dismissed the application and Ms. Powers filed a petition for writ of review, contending the Board unreasonably dismissed her application merely because she exercised her constitutional right against self-incrimination. In denying her petition, the Court of Appeals cited three cases, two of which were from the California Supreme Court, to demonstrate scenarios where the privilege against self-incrimination is waived as to matters directly relevant to litigation commenced by the holder of the privilege.
In the first case cited by the Court of Appeals, Britt v. Superior Court of San Diego County (20 Cal. 3d 844), the California Supreme Court dealt with the "patient-litigant" exception to the statutory physician-patient and psychotherapist/patient privileges. In Britt, the trial judge issued an unlimited order requiring the plaintiff to provide information related to all past medical conditions, without regard as to whether such conditions had any bearing on the litigation. The court held that plaintiff's waiver of the privileges extended only to information relating to the medical conditions in question, and did not automatically open all of a plaintiff's past medical history to scrutiny. (Id. at 849)

The Powers court also cited Shepherd v. Superior Court of Alameda County (17 Cal.3d 107) (holding that a party seeking civil relief may not refuse on the ground of the privilege against self-incrimination to testify on matters relevant to his recovery) and Newson v. City of Oakland (37 Cal.App.3d 1050) (holding that a civil plaintiff must answer questions related to the filing of income tax returns or withdraw his claim for earnings). In agreeing with the rationale of Powers, the Board granted defendant's Petition for Reconsideration, struck the WCJ's order denying defendant's Petition for Order Suspending Action and Barring Benefits, and remanded the matter to the trial level for further proceedings. The opinion demonstrates the WCAB's willingness to treat a workers' compensation applicant similar to a civil litigation plaintiff regarding self-incrimination. Whether a workers' compensation claim or a civil lawsuit, the party initiating the litigation waives her constitutional protections regarding matters that are at issue, or "directly relevant."

The Vargas opinion avoids inevitable prejudice to the defendant that would flow from permitting an applicant to "have her cake and eat it too." A constitutional compromise is reached in the sense that an applicant will not be compelled to incriminate herself; however, if an applicant wants to prosecute the claim, she must enable the defendant to exercise its own rights to cross-examine the applicant and present rebuttal evidence.
The WCAB's opinion sets forth a roadmap for defendants frustrated by an applicant hiding behind the "cloak of privilege" to avoid answering questions at a deposition. In the event an injured worker is instructed not to answer a particular question, the deposing attorney should create a clear record by:
a) Reiterating the objected to question;
b) Indicating for the record that the injured worker's attorney has instructed his client to not answer the question;
c) Asking the injured worker if they are declining to answer based on the advice of their attorney;
d) Requesting the injured worker's attorney to clearly state the basis for the objection and the instruction not to answer.

Then the court reporter should be requested to prepare a partial transcript of that portion of the deposition to be used as an exhibit for the Petition to Compel. If unable to resolve the matter informally, a workers' compensation defendant should file a petition requesting the WCJ order applicant to answer its questions. The petition should include a list of specific questions for applicant to answer, explaining how those questions are "directly relevant" or would lead to the discovery of relevant evidence. Further, the petition should request that the Board dismiss applicant's application if the questions are not answered. As a threshold matter, the WCJ will determine which questions posed by defendant are "directly relevant" to the issues of the case. After determining which questions applicant must answer, the Vargas opinion instructs the WCJ to order applicant to answer the questions and issue a notice of intention to dismiss applicant's application if the questions are not answered under oath within 30 days.