Refusal of Cross-Examination a Denial of Due Process

Summary Written by Gregory Tanner

In an unpublished decision, the Court of Appeal, Second Appellate Division, annulled a WCAB decision that found that an applicant was entitled to an award of total permanent disability despite refusing to testify on cross-examination at trial. The applicant refused to testify on cross-examination during three hearings. Despite this, the WCAB ultimately found that the applicant was entitled to an award of total permanent disability at the TD rate.

In annulling the opinion of the WCAB, the Court of Appeal noted that the defense was denied due process when it was refused the ability to cross-examine the applicant. The Court of Appeal emphasized that the denial of the opportunity to attack the credibility of the applicant at trial was prejudicial to the defense since a finding that the applicant lacked credibility could have resulted in a more favorable result for the defense. The Court of Appeal also noted that apportionment was not adequately addressed since there was no evidence that Dr. Curtis, the psychiatric treating doctor, ever reviewed the reports of the orthopedists in the case who found some apportionment. The Court also held that the defense is entitled to cross-examine Dr. Gilberg in psychiatry who had previously recused himself due to harassment from the applicant.

In essence, a party is denied due process when refused the opportunity to cross-examine a party at trial when that denial is prejudicial.

Ogden Entertainment Services v WCAB http://www.courts.ca.gov/opinions/nonpub/B254082.PDF

 

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