Ogden Entertainment Services v. WCAB CA2/1 , 233 Cal. App. 4th 970 ( 2014 )

Filed 12/31/14 Ogden Entertainment Services v. WCAB CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
OGDEN ENTERTAINMENT SERVICES B254082
et al.,
(W.C.A.B. Nos. ADJ4599548,
Petitioner, ADJ1414058)
v.
WORKERS’ COMPENSATION
APPEALS BOARD and KRISTIAN VON
RITZHOFF,
Respondents.
PROCEEDING to review a decision of the Workers’ Compensation Appeals
Board. Annulled and remanded.
Floyd, Skeren & Kelly, Terry L. Smith, Timothy D. Morgan for Petitioner.
Kristian Von Ritzhoff, in pro. per., for Respondent.
James T. Losee, Department of Industrial Relations, for Respondent Workers’
Compensation Appeals Board.
_______________________
The workers’ compensation judge (hereafter WCJ) found respondent Kristian von
Ritzhoff (hereafter Ritzhoff) totally permanently disabled. The Workers’ Compensation
Appeals Board (hereafter appeals board) denied the petition for reconsideration and
adopted the WCJ’s decision as its own. Ritzhoff obtained this lifetime award even
though he refused to subject himself to cross-examination.
We annul the appeals board’s decision because the due process right of defendant
Ogden Entertainment Services (hereafter defendant) to cross-examination was violated.
We remand with directions for new proceedings consistent with this opinion.
The Original Orthopedic Injury
Ritzhoff sustained injuries on March 16, 1996, to his right ankle, right hand, back
and psyche while working as a banquet server for the defendant. The orthopedic injuries
were admitted. The defendant denied the claim of an industrial psychiatric injury.
The orthopedist, who performed three surgeries on Ritzhoff’s right ankle, Dr.
Forman, found Ritzhoff’s right ankle permanent and stationary as of October 25, 2005.
Save for its significance as the origin of Ritzhoff’s psychiatric injuries, the orthopedic
injury dropped out of consideration after Dr. Forman found it permanent and stationary.
The Psychiatric Injuries
As discussed below, the WCJ ultimately found Ritzhoff to be permanently and
totally disabled. In reaching this conclusion, the WCJ relied on the opinion of Ritzhoff’s
treating psychiatrist, Thomas A. Curtis, M.D. (hereafter Dr. Curtis).
Dr. Curtis initially evaluated Ritzhoff on December 14, 2001. During the clinical
interview situation, Dr. Curtis noted that Ritzhoff demonstrated diminished cognitive
functioning. Ritzhoff’s psychological test results indicated that he had severe depression,
suicidal ideation, severe anxiety, and total neuroticism. Dr. Curtis found Ritzhoff
temporarily totally disabled on a psychiatric basis and in need of emotional treatment.
The defendant made temporary disability payments. There is evidence in the form
of Ritzhoff’s testimony that at some point in early 2006 the defendant ceased making
these payments, claiming that there was no psychiatric disability. This brought about the
2
expedited hearing of May 18, 2006, which was convened for the purpose of determining
whether Ritzhoff was temporarily psychiatrically disabled.
Total Temporary Disability (May 18, 2006)
The hearing commenced with Ritzhoff’s testimony that the report that he was
permanent and stationary on which the defendant relied was false. Under examination by
the WCJ, Ritzhoff testified that his attending psychiatrist told him that psychiatrically he
was temporarily totally disabled.
The defendant then began to cross-examine Ritzhoff. Significantly, on cross-
examination Ritzhoff effectively admitted working from time-to-time since his injury in
1996. However, the WCJ terminated cross-examination over the defendant’s objection
and even though the defendant had not finished because of alleged time constraints
arising from the expedited nature of the hearing. The defendant made an offer of proof
that its investigator would show film of Ritzhoff working around the house and working
at an art gallery and “doing other things from 2004 through 5-9-06.”
By interim opinion on decision dated May 23, 2006, the WCJ found Ritzhoff
temporarily totally disabled from a psychiatric injury that was caused by the orthopedic
injury to his ankle. This was based on a medical report that stated that the predominant
cause of his “depressive symptoms” was prolonged orthopedic pain, especially from the
right ankle injury. This medical report was dated February 24, 1999, and was generated
by the Barrington Psychiatric Center. The WCJ noted there was no medical report stating
that psychiatrically Ritzhoff was permanent and stationary and that it was “easy to
extrapolate from the totality that applicant is still temporarily totally disabled.” The WCJ
ordered continued temporary disability payments. The WCJ noted that the videotape the
defendant sought to have admitted was “more appropriate for later cross-examination (of
a doctor and/or applicant as to accuracy of his history) rather than at this stage of the
proceedings.” The WCJ also noted that Ritzhoff had been in propria persona since 1998.
The appeals board denied the defendant’s petition for reconsideration on June 7,
2006.
3
Psychiatric Reports 2008-2009
The independent medical evaluator in psychiatry, Arnold Gilberg, M.D., Ph.D.
(hereafter Dr. Gilberg) issued a report on July 14, 2008, agreeing with Dr. Curtis that
Ritzhoff would become permanent and stationary psychiatrically by December 31, 2008.
Dr. Gilberg also opined Ritzhoff’s “permanent disability [was] inextricably intertwined
between the various injuries in question.” Dr. Gilberg apportioned 95 percent to
1
industrial factors and 5 percent to non-industrial factors. However, Dr. Gilberg opined
Ritzhoff was not “occupationally feasible from a psychiatric standpoint.”
As of August 2008, Ritzhoff had received electric shock therapy and Dr. Curtis
requested authorization to treat Ritzhoff’s anxiety-mediated Parkinson’s-type tremors and
for related muscle twitches and tensions. By November 6, 2009, Ritzhoff had attempted
suicide by hanging while he was hospitalized. Dr. Curtis opined that it was obvious to
him Ritzhoff was totally and permanently disabled on a psychiatric basis.
There now followed three hearings. The first two focused on whether Ritzhoff
was psychiatrically permanent and stationary and thus no longer entitled to temporary
disability payments. The third hearing ended with the finding that Ritzhoff was
permanently disabled. Ritzhoff refused to be cross-examined at all three of these
hearings.
The First Hearing (April 23, 2009)
The hearing before the WCJ
Ritzhoff requested the April 23, 2009 expedited hearing to resolve the issue of
temporary disability benefits, which he claimed had been terminated.
1
Dr. Gilberg believed there was a variety of other stressors related to the
chronicity of Ritzhoff’s claim. Dr. Gilberg did not provide any further detail in the
January 21, 2011 report, regarding the other stressors. However, in the July 14, 2008
report, Dr. Gilberg noted Ritzhoff’s history of alcohol abuse and made a similar
apportionment.
4
2
The defense position was that Ritzhoff was permanent and stationary. It is clear
that the defense intended to show this at least in part by Ritzhoff’s testimony,3 although
the medical reports also supported this conclusion. Dr. Forman, the orthopedic doctor
who performed three surgeries on Ritzhoff’s right ankle, found Ritzhoff’s right ankle
permanent and stationary as of October 25 2005. Dr. Gilberg, the independent medical
evaluator in psychiatry, issued a report on July 14, 2008, agreeing with treating
psychiatrist Dr. Curtis that Ritzhoff would become permanent and stationary
psychiatrically by December 31, 2008.
The defendant also sought to re-depose Dr. Gilberg on the amount of permanent
disability. The WCJ agreed the defense was entitled to depose Dr. Gilberg but suggested
deposition by interrogatories.
After defense counsel’s statement about the object of Ritzhoff’s cross-
examination, the WCJ asked Ritzhoff to take the stand. Ritzhoff stated: “I object to be
cross-examined without an attorney.” The WCJ told him he was his own attorney, as he
indeed had been since 1998.
Ritzhoff’s behavior from this point on was remarkable. This was his reaction to
being reminded by the WCJ that he had been his own attorney for over 10 years:
“No. I object. I object. I asked for -- Your Honor, I object. Your Honor, I object.
One thing, I asked for this trial that you will subpoena Ms. Lomolongo (phonetic) in
March to come here and indicate why they cut the benefits without proper authorization
and legal condition, which warrants them -- which warrants that all the medical reports
have to be together and that is done by approaching the court with a filing, which is titled
DOR if I’m not mistaken, and they don’t have it. Okay. So Dr. Mitzelfelt objecting in
his letter there. If I could, can I read it? Or have you seen that?”
2
Permanent and stationary means that the person’s medical condition is not
expected to change.
3
“[Defense counsel]: I believe that after Mr. Von Ritzhoff testifies today, that we
will be able to prove that he is permanent and stationary by his own testimony.”
5
After the WCJ told him that defense counsel had the right to ask him questions,
Ritzhoff replied that he was not “ready to be cross-examined because I provided the
Court with enough information with a violation of this firm and their client to properly
inform an evidence by law [sic] why they cut my benefits.” Next, Ritzhoff took the stand
only to deliver a short monologue, concluding: “What I’m saying here, I am not going to
testify. I’m tired; I feel sick. I called the doctor and he told me don’t -- this Judge has no
care about my health. He wants to throw me into the abyss of infinity.”
Defense counsel finally got a word in when he stated that he had a due process
right to cross-examine Ritzhoff. Ritzhoff’s response was to accuse the defense of
“criminal activities, a felony, manipulating the medical record.” After stating that “you
cannot rush somebody who is unrepresented, who has a problem with mental condition”
and being told by the WCJ that maybe he should not be representing himself, Ritzhoff’s
answer was that he had a right to represent himself.
The hearing continued on its downhill path. Defense counsel stated that since he
was unable to cross-examine Ritzhoff on the issue before the court, he moved the
admission of correspondence by the adjuster Broadspire into evidence. Confused
wrangling followed with Ritzhoff interspersing unintelligible comments about various
physicians. When defense counsel requested medical records from Glendale Adventist
Hospital, Ritzhoff asked whether he could cross-examine defense counsel. The
discussion now became even more personal, with Ritzhoff calling defense counsel “a big
liar.” Although the hearing finally collapsed in inconclusive confusion, one reality did
emerge. Ritzhoff was true to his word; he did not testify. This hearing concluded
without a word of testimony by Ritzhoff.
While the defense made no offer of proof, it is quite clear what the defense
intended to prove by its cross-examination of Ritzhoff. The defense announced at the
outset of this hearing that it wanted to prove that Ritzhoff was permanent and stationary.
As the aborted cross-examination of May 18, 2006 suggested, the defense intended to
elicit testimony that Ritzhoff was working from time-to-time and was functioning
normally, which was circumstantial evidence that he was permanent and stationary. In
6
the process, the defense would inevitably have endeavored to show that Ritzhoff was not
credible and thus had not given credible information to attending physicians, including
the psychiatrists.
Based on the medical report of psychiatrist Dr. Curtis,4 the WCJ concluded that
Ritzhoff was temporarily totally disabled. The WCJ noted that a psychiatrist’s opinion
was required on the issue whether Ritzhoff was permanent and stationary and that it was
“not known” how Ritzhoff’s layperson’s testimony could add to or defeat a psychiatrist’s
opinion regarding Ritzhoff’s disability status. The WCJ had made a similar comment
during the hearing.
The WCJ erred when he stated that the defense had refused to make an offer of
proof at the hearing as to what the defense intended to elicit from Ritzhoff. The defense
was never asked, nor did it refuse, to make an offer or proof during this hearing.
On the contrary, the defense had made it clear that it wanted to cross-examine Ritzhoff on
the question whether he was permanent and stationary.
Reconsideration and the Appeals Board
Defendant filed a petition for reconsideration following the first hearing of April
23, 2009.
The appeals board affirmed the WCJ’s order. Agreeing with the WCJ that
Ritzhoff’s testimony would not be particularly useful in resolving the psychiatric medical
question, the appeals board allowed the WCJ’s decision on total temporary disability to
stand. However, the appeals board noted defendant’s legitimate complaints regarding the
opportunity to cross-examine Ritzhoff. The appeals board explicitly stated that “[i]f
[Ritzhoff] intends to continue to prosecute his claim for workers’ compensation benefits,
he must submit to cross-examination.”
4
Dr. Curtis’s report stated that Ritzhoff’s condition was declining again and that
this case was “best considered as a 100% disability without apportionment.”
7
The Second Hearing (October 27, 2009)
The hearing before the WCJ
Only six months had elapsed since the April 2009 expedited hearing. However,
Ritzhoff again requested the October 27, 2009 expedited hearing, complaining of the
defendant’s denial of payment for all treatment. Specifically, Ritzhoff requested
5
reinstatement of treatment with various doctors.
The defendant confirmed its refusal to pay for treatment and benefits because it
was denied due process when it was not allowed to cross-examine Ritzhoff. The
defendant expressly objected to orders for payment without having a right to question the
applicant, to cross-examine Dr. Gilberg, to obtain medical records from Dr. Gilberg, to
review all medical records from Glendale Adventist Hospital, and the right to subpoena
and review medical records from a new facility. The defendant also asserted its right to
question Ritzhoff regarding psychological treatment if the WCJ was ordering
psychological treatment.
The WCJ did not allow cross-examination on issues related to temporary total
disability. The WCJ stated that this issue was already settled.
Ritzhoff now took the stand. However, he squarely refused at least six times to
answer defense counsel’s questions. In short, as in the first hearing, Ritzhoff did not
testify at the second hearing.
The WCJ claimed the appeals board upheld the decision on temporary total
disability and his “position on cross-examining” Ritzhoff. The WCJ found that the
defendant’s position to discontinue all treatment, despite medical opinions that Ritzhoff’s
condition would decline, was unwarranted. The WCJ ordered the defendant to reinstate
treatment with Dr. Curtis.
5
These doctors included Dr. Curtis, H. Vincent Mitzelfelt, M.D. (hereafter Dr.
Mitzelfelt), and Don Rubinstein, Ph.D. (hereafter Dr. Rubinstein). Dr. Mitzelfelt was
originally the primary treating physician. However, when the psychiatric claims
overtook the orthopedic claims, the WCJ considered Dr. Curtis the primary treating
physician. Dr. Rubinstein was a psychologist treating Ritzhoff.
8
The WCJ ordered the defendant to pay for psychiatric treatment and temporary
total disability as previously ordered. The WCJ did not order orthopedic treatment in
light of Ritzhoff’s refusal to be cross-examined.
Reconsideration and the Appeals Board
6
The defendant again petitioned for reconsideration. The petition argued that the
defendant was deprived of its due process rights when the WCJ ordered benefits after
Ritzhoff refused to be cross-examined at the hearing.
The WCJ’s report recommended denial of the petition. The WCJ believed
“[d]efendant [was] really becoming as out-of-control as applicant.” On the issue of the
defendant’s due process, the WCJ did not order non-psychiatric benefits so there was no
denial of due process and no prejudice. As for psychiatric benefits, the WCJ found the
7
issue was res judicata given a prior determination. The WCJ stated he could not in good
conscience abruptly cut off Ritzhoff from psychiatric treatment when he was on several
psychiatric medications and required monitoring.
The appeals board denied defendant’s petition for reconsideration on April 20,
2010. The appeals board found the new decision was favorable to defendant in that it
authorized defendant to stop providing non-psychiatric care. The appeals board clarified
its earlier affirmation of the WCJ’s decision, stating again that if Ritzhoff wanted to
continue to receive benefits, he would have to testify. The appeals board let the WCJ’s
decision on temporary total disability “stand, but only ‘for now.’”
6
The defendant simultaneously filed a petition for removal of the WCJ pursuant to
Labor Code section 5310. Ritzhoff also filed a petition for reconsideration seeking
reinstatement of non-psychiatric treatment. Each of the petitions was denied.
7
It appears the WCJ was referring to the appeal board’s opinion following the first
hearing. Specifically, that decision allowed the WCJ’s order continuing temporary total
disability benefits to “stand.” The appeals board’s response to the writ of review
indicates that the prior determination referred to was the appeal board’s opinion
following the May 18, 2006 hearing.
9
Psychiatric Reports 2011-2012
On August 10, 2011, Dr. Curtis disagreed with Dr. Gilberg’s 5 percent
apportionment to Ritzhoff’s prior history of alcoholism. Dr. Curtis rather noted Dr.
Gilberg’s opinion that Ritzhoff was not able to compete in the open labor market from a
psychiatric standpoint. Commenting on Ritzhoff’s continued deteriorating condition, Dr.
Curtis again opined that Ritzhoff was 100 percent totally and permanently disabled with
no apportionment.
In his July 16, 2012 report, Dr. Curtis continued to opine that “this case should
probably best be considered as a 100% disability case without apportionment.”
The Third Hearing (May 30, 2013)
The hearing before the WCJ
The matter came on for hearing over the objection of the defendant on May 30,
2013. Discovery remained open until the final mandatory settlement conference on
August 28, 2012. However, since the October 27, 2009 hearing, the defendant still was
unable to obtain the deposition of Dr. Gilberg, who had recused himself from the matter.
At the hearing, Ritzhoff preemptively refused to respond to any questions by
defendant.
Defendant made an offer of proof as to the testimony it sought on cross-
examination: “Applicant’s ability to function physically, mentally, his ability to work,
and whether he did work during March 1996 through the present, which would affect the
TD rate, overpayment, and PD. In past depositions, the applicant testified that he did not
work on certain occasion, where there was proof of him working. Lack of credibility can
only be observed on cross-examination, which goes to the content of the medical
reports.”
Following the third hearing, on October 10, 2013, the WCJ found Ritzhoff
sustained industrial injuries on March 16, 1996, to his right ankle, right hand, back, and
his psyche.
The WCJ acknowledged no evidence was produced regarding earnings, either in
testimony or by wage statement. The WCJ accordingly found a reasonable rate of
10
earnings within the range claimed by the parties. The WCJ found Ritzhoff had weekly
earnings of $320 at the time of the injury, entitling him to temporary total disability and
permanent disability rates of $213.33 per week. The WCJ found Ritzhoff totally
temporarily disabled from March 17, 1996 through December 31, 2008, and from
October 13, 2009 through April 23, 2010. Ritzhoff was found totally permanently
disabled, entitling him to benefits from January 1, 2009 through October 12, 2009, and
from April 24, 2010 for life. The WCJ found no basis for apportionment.
In reaching these findings, the WCJ found the reporting of Dr. Mitzelfelt
unreliable. The WCJ also questioned the final opinion of panel qualified medical
8
evaluator in orthopedics, Dr. Jonathan Jaivin. Dr. Jaivin’s final report apportioned 95
percent of the orthopedic injury to preexisting conditions whereas his earlier May 30,
2006 report, offered no opinion on apportionment. The WCJ therefore disregarded Dr.
Jaivin’s final report, and relied instead on Dr. Jaivin’s May 30, 2006 report, and Dr.
Forman’s February 17, 2006 report,9 on the orthopedic injury.
Regarding the psychiatric injury, the WCJ relied upon the opinion of Dr. Curtis,
with which Dr. Gilberg mostly agreed. The WCJ found Dr. Gilberg’s apportionment of 5
percent to Ritzhoff’s history of drinking not supported given Dr. Gilberg’s failure to
explain “how or why this prior stint, especially if not an ongoing problem” would have
caused 5 percent of the disability.
The WCJ addressed the defendant’s due process concerns arising from the
inability to cross-examine Ritzhoff and Dr. Gilberg. The WCJ ruled defendant’s offer of
proof did not establish that cross-examination of Ritzhoff would defeat or reduce the
award. Ritzhoff, as a layperson, was ill-equipped to render opinions regarding his own
8
Dr. Jaivin’s relationship with Ritzhoff deteriorated over the course of the case.
Ritzhoff complained to Dr. Gilberg that he felt maligned by Dr. Jaivin, who he felt
changed his testimony at the time of deposition.
9
Dr. Forman apportioned 25 percent of Ritzhoff’s objective factors of disability to
his preexisting condition and 75 percent to his industrial injury of March 18, 1996.
11
mental condition. Additionally, Dr. Gilberg was deposed once before and, given the
decision was not based on Dr. Gilberg’s opinion, the WCJ found the issue of Dr.
Gilberg’s renewed deposition was moot.
Reconsideration and the Appeals Board
The defendant petitioned for reconsideration. The defendant’s main argument was
that its due process rights were violated when benefits were awarded without the
opportunity to cross-examine Ritzhoff and Dr. Gilberg.
The WCJ’s report recommending denial of defendant’s petition for
reconsideration largely quoting from his own opinion on decision.
On December 20, 2013, the appeals board denied the defendant’s petition for
reconsideration, adopting and incorporating the WCJ’s report, and issued no opinion of
its own.
The Rationale why the WCJ and Appeals Board Dispensed with Cross-examination
The basis for continuing and awarding substantial benefits without cross-
examination was that the issue involved a psychiatric medical opinion which Ritzhoff’s
layperson testimony could neither supplement or defeat. The appeals board agreed
Ritzhoff’s testimony would not be useful in resolving the medical question of permanent
and stationary status.
Significantly, however, the appeals board twice noted that Ritzhoff, if he intended
to recover, should submit himself to cross-examination. This happened after the first and
second hearing. There is no explanation why the appeals board simply abandoned its
position on this issue following the third hearing.
DISCUSSION
1. Cross-examination as an Element of a Fair Trial or Hearing
“‘For two centuries past, the policy of the Anglo-American system of Evidence
has been to regard the necessity of testing by cross-examination as a vital feature of
the law. The belief that no safeguard for testing the value of human statements is
comparable to that furnished by cross-examination, and the conviction that no
statement (unless by special exception) should be used as testimony until it has been
12
probed and sublimated by that test, has found increasing strength in lengthening
experience.’” (Greene v. McElroy (1959) 360 U.S. 474, 497, quoting 5 Wigmore,
Evidence (3d ed. 1940) § 1367.) “There are few subjects, perhaps, upon which [it] and
other courts have been more nearly unanimous than in their expressions of belief that the
right of confrontation and cross-examination is an essential and fundamental requirement
for the kind of fair trial which is this country’s constitutional goal.” (Pointer v. Texas
(1965) 380 U.S. 400, 405.) The right to cross-examination is protected by the
confrontation clause of the Sixth Amendment which is applicable to the states. (Id. at pp.
403-405.)
We address in this case therefore nothing less than one of the fundamental
guarantees of a fair trial10 or, as in this case, a fair hearing, for there is no doubt that
the right of cross-examination is guaranteed to the parties in workers’ compensation
proceedings. (Pacific Employers Ins. Co. v. Industrial Accident Com. (1941) 47
Cal. App. 2d 713, 715.) This right is not only guaranteed as a matter of constitutional
law, it is specifically guaranteed by the Administrative Procedure Act’s subdivision
(b) of Government Code section 11513.11 As far as the purposes of cross-examination
are concerned, one cannot improve on the explanation of the role of cross-examination
given by Wigmore, quoted in People v. Whitehead (1952) 113 Cal. App. 2d 43, 48-49,
which we set forth in the margin.12
10
“The fundamental character of this right [of confrontation and cross-
examination] is beyond question.” (People v. Louis (1986) 42 Cal. 3d 969, 982.)
11
“Each party shall have these rights: to call and examine witnesses, to introduce
exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even
though that matter was not covered in the direct examination; to impeach any witness
regardless of which party first called him or her to testify; and to rebut the evidence
against him or her. If respondent does not testify in his or her own behalf he or she may
be called and examined as if under cross-examination.” (Gov. Code, § 11513, subd. (b).)
12
“‘The remaining and qualifying circumstances of the subject of testimony will
probably remain suppressed or undisclosed, not merely because the witness frequently is
13
Give what the purposes of cross-examination are, we must correct the
misperception shared by the WCJ and the appeals board that, as a layperson, Ritzhoff had
nothing to add as a witness. The purpose of cross-examination is not limited to eliciting
facts or information about the merits of the case. “[O]ne of the important objects of the
right of confrontation was to guarantee that the fact finder had an adequate opportunity to
assess the credibility of witnesses.” (Berger v. California (1969) 393 U.S. 314, 315.)
California law has been in accord from the beginning, singling out the importance
of cross-examination in inquiring into the credibility of a witness. (Neal v. Neal (1881)
58 Cal. 287, 288; Sharp v. Hoffman (1889) 79 Cal. 404, 408.) Indeed, the rule is that on
cross-examination “. . . a wide latitude is permitted for the purpose of testing accuracy or
credibility. This is especially true if the witness is himself a party to the action.”
(Stromerson v. Averill (1940) 39 Cal. App. 2d 118, 125.)
The importance of cross-examination as a means of testing and attacking the
credibility of a witness is undiminished in the modern era. (E.g., People v. Guthreau
(1980) 102 Cal. App. 3d 436, 445.) In fact, Witkin writes that the “chief purpose of cross-
examination is to test the credibility, knowledge and recollection of the witness.” (3
Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 236, p. 345.)
As we discuss in the next section, the record in this case contains strong
indications that Ritzhoff’s credibility is very much at issue.
a partisan, but also and chiefly because his testimony is commonly given only by way of
answers to specific interrogatories . . . and the counsel producing him will usually ask for
nothing but the facts favorable to his party. If nothing more were done to unveil all the
facts known to this witness, his testimony (for all that we could surmise) might present
half-truths only. Someone must probe for the possible (and usual) remainder. The best
person to do this is the one most vitally interested, namely, the opponent. Cross-
examination, then, i.e. further examination by the opponent, has for its first utility the
extraction of the remaining qualifying circumstances, if any, known to the witness, but
hitherto undisclosed by him.’ (Wigmore, vol. V, [3d ed.] § 1368, p. 33.)” The citation
now is to 5 Wigmore (Chadbourn Rev.) § 1368.
14
2. The Lack of Cross-Examination was Prejudicial
It goes without saying that this is not a case where cross-examination was
curtailed. This is a case where cross-examination did not take place except for the few
minutes of cross-examination on May 18, 2006, which was in any event curtailed over
the defense’s objection, was meaningless. We therefore address an admittedly unusual
situation where a litigant, the defendant in this case, was completely deprived of the right
of cross-examination.
“A denial of due process to a party ordinarily compels annulment of the [appeal
board’s] decision only if it is reasonably probable that, absent the procedural error, the
party would have attained a more favorable result.” (Beverly Hills Multispecialty Group,
Inc. v. Workers’ Comp. Appeals Bd. (1994) 26 Cal. App. 4th 789, 806.) “However, if the
denial of due process prevents a party from having a fair hearing, the denial of due
process is reversible per se.” (Id. at p. 806.)
When, as in this case, a party is completely denied the fundamental right to cross-
examine the adverse party, there has not been a fair hearing. No one would quarrel with
the proposition that a litigant is entitled to an unbiased judge or hearing officer and that a
biased judge is the very definition of an unfair hearing. Cross-examination of a witness,
and especially the adverse party, is similarly part and parcel of a fair hearing. The high
station which the right of confrontation occupies in our jurisprudence admits of no other
conclusion. There is therefore a case to be made that the error here was reversible per se.
We nevertheless consider whether the error was prejudicial.
In this case, Ritzhoff’s conduct over the issue of his cross-examination was so
irregular as to make an examination into the question of his credibility practically a
necessity. We use the word credibility here in its widest sense, which includes the ability
to render an accurate account of events. The credibility of a person who is given to
manic outbursts of the kind shown by this record is, at a minimum, seriously drawn into
question. The wild flights into conspiracy theories, accusations of criminal misconduct
and even personal invective do not necessarily reflect a mind given to an accurate
recitation of events, particularly events as complex as those underlying psychiatric
15
histories. While we do not presume to render an opinion on Ritzhoff’s credibility,
leaving that to the finder of fact, it is clear that his very conduct, particularly during the
first hearing on April 23, 2009, moved that issue center-stage and required reasoned, and
informed, analysis. If Ritzhoff was not credible, serious doubts might arise about his
characterizations of his physical, mental and emotional state which in turn could impact
the assessment of the extent of his permanent disability.
The defense stated at various times that it was in possession of information
composed of surveillance and other sources that showed that Ritzhoff had in fact worked
and was engaging in other normal activities. None of this information or evidence ever
saw the light of day. The WCJ in fact dismissed it sight unseen at the end of the hearing
on May 18, 2006, with the comment that it was not relevant to a cross-examination of
Ritzhoff. But what if it were shown by the defense that Ritzhoff was in fact working and
maintained a relatively normal lifestyle? This would surely have an impact on the
determination of the extent or percentage of his permanent disability.
In short, had Ritzhoff been cross-examined, particularly in light of evidence that
showed him working, it is reasonably probable that the defense might have obtained a
more favorable result. A more favorable result is, of course, anything less than total
permanent disability.
3. The Appeals Board’s Decision Exceeded its Powers and is Unreasonable
When the “. . . irregularities constitute a denial of due process, the [appeals
board’s] actions are obviously beyond the Board’s powers.” (2 Hanna, Cal. Law of
Employee Injuries and Workers’ Compensation (rev. 2d ed.) § 34.18[2], p. 34-33.) It is
also true that a denial of due process renders the appeals board’s decision unreasonable.
(2 Hanna, Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed.) §
34.18[1], p. 34-33.) A writ of review may issue if the appeals board acted in excess of its
jurisdiction or if its decision is unreasonable. (Lab. Code, § 5952, subds. (a) & (c).)
4. Additional Issues on Remand
We note there is no determination of the disability caused by the orthopedic injury
or its apportionment. While it does appear that the psychiatric medical experts had Dr.
16
Forman’s opinion on the apportionment of the orthopedic injury, there is no analysis
regarding its impact on the psychiatric portion of the injury. In addition, there is no
indication in the voluminous record that Dr. Curtis had the reports of Dr. Jaivin when he
formed his opinions on apportionment. Given that the medical experts concluded that the
psychiatric injury arose exclusively from the admitted orthopedic injury, the
apportionment of the orthopedic injury may have an impact on the apportionment of the
psychiatric injury. This issue needs to be addressed.
In addition to clarifying the apportionment of the orthopedic injury, the
apportionment of the psychiatric injury must also be completed. Dr. Gilberg, who
apportioned 5 percent to nonindustrial causes, refused to continue his participation in the
case because of harassment by Ritzhoff. Despite the defendant’s efforts and the WCJ’s
acknowledgment of the defendant’s right to a renewed deposition, Dr. Gilberg was not
re-deposed. We find that Dr. Gilberg must submit himself to deposition at the very least
on the issue of apportionment. Whether the WCJ relied on Dr. Gilberg’s apportionment
is immaterial. The defendant must be afforded the opportunity to justify the basis of Dr.
Gilberg’s apportionment by cross-examining him or presenting rebuttal evidence through
a renewed deposition.
5. The Appeals Board’s Contentions are Without Merit
The appeals board contends that the “issues of psychiatric industrial injury and
temporary disability are final and the only issues properly before this Court are earnings
and permanent disability/apportionment.”
In workers’ compensation, an order is deemed final if it determines a substantial
issue basic to the employee’s entitlement to benefits. (2 Hanna, Cal. Law of Employee
Injuries and Workers’ Compensation (rev. 2d ed.) § 34.10[2], p. 34-10, citing Safeway
Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal. App. 3d 528, 533, fn. 2.)
Thus, decisions regarding the territorial jurisdiction of the appeals board, the existence of
an employment relationship or the statute of limitations are deemed final for purposes of
review. This type of issue has been called a “threshold” issue. (Ibid.)
17
Whether the psychiatric injury was industrial is not a threshold issue. It is one of
the principal issues on the merits. It is only a final order, decision, or award of the
appeals board that is reviewable by this court by way of a petition for a writ of review.
(Lab. Code, §§ 5900, 5901; Maranian v. Workers’ Comp. Appeals Bd. (2000) 81
Cal. App. 4th 1068, 1074; 2 Hanna, Cal. Law of Employee Injuries and Workers’
Compensation (rev. 2d ed.) § 34.10[2], p. 34-9.) The disposition by the appeals board of
one of several issues on the merits is not a final decision of the appeals board. The same
is true of the award of temporary disability which, for the purposes of review by this
court, is not a final decision of the appeals board.
The only final decision of the appeals board for the purposes of review by this
court is its decision of December 20, 2013, denying the petition for reconsideration and
adopting and incorporating the WCJ’s report as its own decision. This is the decision that
awarded Ritzhoff total permanent disability and which followed what we have called in
this opinion the third hearing.
The appeals board also contends that the defendant was not denied due process. In
support of this claim, the appeals board claims that the defendant had ample opportunity
to cross-examine Ritzhoff and that Ritzhoff was cross-examined on May 18, 2006.
The cross-examination on May 18, 2006, was terminated prematurely over the
objection of the defendant, as we have pointed out. Thereafter, during the following
three hearings, including the ultimate hearing that resulted in the final award, Ritzhoff
adamantly, and successfully, refused to submit to cross-examination. This included the
hearing that led to the award of permanent total disability where Ritzhoff, obviously
emboldened by his earlier successes, simply announced that he was not going to subject
himself to cross-examination, an announcement the WCJ meekly accepted.
The appeals board states that during the hearing held on April 23, 2009, which we
have called the first hearing, the defendant had the opportunity yet failed to make an offer
of proof as to “what further cross-examination would accomplish.” However, the record
shows that defense counsel stated that he had a “due process right” to cross-examine
Ritzhoff, that he had been prevented from questioning Ritzhoff and that he had not been
18
able to cross-examine Ritzhoff. Given that defense counsel opened this hearing with the
statement that his cross-examination of Ritzhoff would prove that Ritzhoff was
permanent and stationary, the record could hardly be clearer both as to what the defense’s
objective was with the cross-examination and that the defense was objecting on due
process grounds to being precluded from cross-examination.
During the second hearing, when Ritzhoff again refused to be cross-examined,
defense counsel again stated that the defense had a due process right to examine Ritzhoff.
A little later, he repeated that he had the right to question Ritzhoff. Defense counsel next
stated that he had the right to question Ritzhoff about the psychological treatment he
received.
Finally, during the third hearing on May 30, 2013, the defense made an explicit
offer of proof which, among other things, specifically pinpointed credibility as one of the
objectives of the cross-examination that had been completely denied. We again set forth
that offer of proof.13
The appeals board is simply wrong in claiming that the defense did not object and
did not make an offer of proof as to what it intended to accomplish with Ritzhoff’s cross-
examination.
The appeals board’s view that the defense should have sought review of its
decision regarding cross-examination following the first and second hearings ignores the
plain fact these were not final decisions of the appeals board and thus were not
reviewable in this court under the aegis of a writ of review.
We find it inexplicable that the appeals board twice warned Ritzhoff that he must
subject himself to cross-examination, only to abandon that view when it came to its final
decision. The position that the appeals board has taken in this court that there was no
13
“Applicant’s ability to function physically, mentally, his ability to work, and
whether he did work during March 1996 through the present, which would affect the TD
rate, overpayment, and PD. In past depositions, the applicant testified that he did not
work on certain occasion, where there was proof of him working. Lack of credibility can
only be observed on cross-examination, which goes to the content of the medical
reports.”
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denial of due process does not square with its two prior statements following the first and
second hearing that Ritzhoff had to subject himself to cross-examination.
The appeals board’s claim that its decision on permanent disability is supported by
substantial evidence is beside the point. The appeals board exceeded its powers when it
adopted a decision as its own that was flawed by a denial of due process. Because the
appeals board exceeded its powers, its decision must be set aside. (Lab. Code, § 5952,
subd. (a).)
Disposition
The decision of the Workers’ Compensation Appeals Board is annulled and the
case is remanded with directions for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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