On January 29, 2015, the Court of Appeal, Second Appellate District, ordered the publication of Ogden Entertainment Services v. WCAB (Ritzhoff), (B254082), previously a non-certified opinion that issued on December 31, 2014. In Ritzhoff, the court holds that a defendant’s right to due process is violated when it is denied the opportunity to cross-examine an applicant.
Mr. Ritzhoff suffered an admitted orthopedic injury on March 16, 1996 and claimed to have suffered an injury to his psyche as a compensable consequence of the original injury. He was declared permanent and stationary for the orthopedic injury on October 25, 2005, but he sought psychiatric treatment and temporary total disability benefits for the psychiatric component of his claim.
In 2006, Ogden terminated these benefits, asserting there was no psychiatric injury. Ritzhoff, at all times representing himself in propia persona, requested an expedited trial.
At trial, during examination by the workers’ compensation judge (“WCJ”), Ritzhoff testified to being told by his psychiatrist that he was temporarily totally disabled. Defense counsel began cross-examination of Ritzhoff, during which Ritzhoff admitted to working from time-to-time since his injury. At this point the WCJ terminated the cross-examination over Ogden’s objection due to the time constraints associated with an expedited trial. The judge also refused Ogden’s offer of proof that its video evidence showed Ritzhoff working from 2004 to 2006. The WCJ refused to allow Odgen to present the evidence, explaining that it was “more appropriate for later cross-examination rather than at this stage of the proceedings.” However, the WCJ issued a decision finding Ritzhoff temporarily totally disabled, even though there was no medical evidence admitted that included that conclusion. The WCJ opined that Ritzhoff was temporarily totally disabled based on the “totality of the evidence,” since there was no medical opinion offered to show that Ritzhoff was permanent and stationary psychiatrically.
Ogden petitioned to terminate temporary disability benefits in 2009. At trial on this issue Ritzhoff took the stand, but refused to be cross-examined, stating that he objected to being cross-examined without the assistance of counsel. Though the WCJ advised Ritzhoff that the defendant had a right to cross-examine him, Ogden was never allowed to do so. Following a third hearing, during which Ogden was again prevented from cross-examining the applicant, Ritzhoff was found to be permanently and totally disabled. Ogden sought reconsideration of the award, but the WCAB upheld the decision of the trial court. Ogden filed a Petition for Writ of Review with the California Court of Appeal.
The Court of Appeal reversed the WCAB and held that the right to cross-examine a witness is a constitutionally guaranteed right and an essential element in law. The court anchored its opinion in the language from the 1959 opinion of the Supreme Court of the United States, Greene v. McElroy: “[t]he 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 probed and sublimated by that test, has found increasing strength in lengthening experience.”
Expanding on that theme, the Court of Appeal wrote, “the right to confront and cross-examine a witness is a fundamental right required for a fair trial, ” and cited to the 1941 decision of the California Court of Appeal in Pacific Employers Ins. Co. v. Industrial Accident Commission which established that cross-examination of witnesses is also guaranteed to parties in workers’ compensation.
The Ritzhoff decision emphasizes the fundamental right to cross-examine a witness and the important role cross-examination plays in American jurisprudence. The fact that Ogden wished to address the credibility issues raised at multiple hearings, and since there was evidence that Ritzhoff’s credibility was an issue, the cross-examination of Ritzhoff was of paramount importance. The denial of that right denied Ogden a fair hearing and created a reversible error per se.
The relationship between due process rights and the right to cross-examination is among several constitutional issues raised by the parties and friends of the court briefs in Stevens v. Outspoken Enterprises, a case attacking the utilization review and independent medical review processes that are the lynchpin of medical management under SB 863. Whether the decision in Ritzhoff will affect the Stevens decision, which is currently before the California Court of Appeal, will in part turn on the parties’ efforts to distinguish or harmonize the cases with their views of due process.
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