Friday, February 10, 2012

Would You Get Married to Avoid a Deposition? A Case Study...

The rules of evidence are mysterious to most workers' compensation practitioners. The closest most come to evidentiary issues in litigated work comp cases is whether a medical report is "substantial evidence" but very rarely does a lawyer have to worry about moving an item into evidence at hearing, or worry about an evidentiary objection other than relevancy.

A recent California case reminds us, though, that the rules of evidence DO apply to workers' compensation cases, and those rules can be exploited just like any other hard and fast rule.

In Mota v. Cast Aluminum & Brass Corp. et al., No. A134157, 02/02/2012, the "spousal privilege" was deftly applied by the injured worker to prevent the defense from obtaining the deposition of a percipient witness, the claimant's girlfriend-soon-to-be-wife.

I'm sure, if you're a fan of business education, that you're familiar with the concept of just-in-time manufacturing, where processes are managed tightly to produce the most efficient manufacturing model possible. The Mota case is about just-in-time marriage.

On April 3, 2007, Ricardo Mota was caught in a conveyor belt while working for Cast Aluminum & Brass Corp., which had workers' compensation coverage from Zenith Insurance Co. He suffered multiple crush injuries to his head, neck, shoulders, low back, and right upper extremity.

Mota claimed that he began suffering from psychiatric problems and depression as a result of his physical injuries, but Cast and Zenith contended his cognitive dysfunction was caused by his past abuse of illegal drugs.

The trial judge noted that Mota freely admitted his history of narcotics use and related incarcerations in his deposition. But he said he did not remember when this occurred, and suggested that his "wife," identified as Angel P. Dodge, would know. Mota later clarified that he and Dodge were not legally married.

The defense sought to depose Dodge, but Mota's attorney objected, based on the marital privilege - even though Mota and Dodge were not married at that time.

At a hearing last September, the judge ruled that the privilege could not be raised "unless a marriage certificate can be produced before the deposition...set on Oct. 20, 2011..." If Mota produced such a certificate before that date, the judge said, a protective order was "prospectively granted" so the deposition would not proceed.

One day before the deadline, at 4:31 p.m., the defense counsel received a copy of a marriage license and certificate of marriage for the union of Mota and Dodge, dated a week prior.

The trial judge acknowledged exceptions "hav(ing) to do with causes of action between spouses," in the spousal privilege, but said there were none applicable to the case where marriage was secured just prior to scheduled testimony.

The Workers' Compensation Appeals Board rejected the defense request for reconsideration, and the 1st District Court of Appeal denied review.

This is one of those frustrating kinds of cases that, as a defendant, I would hate to see in my inventory. Five years into this case and still seeking discovery over a psyche issue. My guess, and I don't know the parties nor have I seen the case file, is that Zenith is probably correct - there is underlying psychopathology interfering with either recovery, return to work, or inflating disability.

On the other hand, perhaps it is better to admit to the psyche component and provide treatment - if it is not going to be abused by the injured worker's providers just to increase billings.

And there's the rub. Often I think it is appropriate to just provide psychological or psychiatric services to deal with non-industrial comorbidity in order to get a better outcome on the admitted industrial components of a case.

But where's the line? Is it when the payor (employer/carrier) has trust in the providers that they are doing right for the injured worker? And then how do you gain the cooperation of the injured worker, represented by counsel, and thus in an adversarial position distrustful of anything the insurance company wants to do or authorizes?

I admit that this case is a rock and a hard place for the carrier. And I also have to admire the ingenuity, and chutzpah of the injured worker and his "wife" to actually pull it off.

Mazel tov.workers compensation, work comp, injured worker

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