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Tag: 2015 News

DCA Reverses Total PD Award – Orders Cross-Ex of Applicant

This Court of Appeal decision perhaps answers the question of when is an expedited hearing too expedited.

Kristian Von Ritzhoff sustained injuries while working as a banquet server in 1996. Orthopedic injuries were admitted and psychiatric injury denied. The PTP 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 thereafter.

Thomas Curtis MD found Ritzhoff TTD on a psychiatric basis and in need of treatment. This brought about the expedited hearing of May 18, 2006. Ritzhoff has been representing himself since 1998. The defendant began to cross-examine him at this hearing. He 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 WCJ also 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.” Nonetheless the WCJ found Ritzhoff temporarily totally disabled from a psychiatric injury based upon a 1999 medical report. The WCAB denied reconsideration of this order.

By August 2008, Ritzhoff had received electric shock therapy and by November 6, 2009, 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 TTD. The third hearing ended with the finding that Ritzhoff was 100% disabled. Ritzhoff refused to be cross-examined at all three of these hearings.

Ritzhoff requested the April 23, 2009 expedited hearing to resolve the issue of TTD benefits. Dr. Gilberg, the independent medical evaluator in psychiatry appointed by the WCJ, issued a report that Ritzhoff would become permanent and stationary psychiatrically by December 31, 2008. 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 took the stand only to deliver a short monologue. The Court of Appeal noted that “The hearing continued on its downhill path…… 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. ” Nonetheless the WCJ concluded that Ritzhoff was temporarily totally disabled. The appeals board affirmed the WCJ’s order. 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.”

Another hearing on October 27, 2009 requested by Ritzhoff was essentially the same. The WCJ did not allow cross-examination on issues related to temporary total disability and stated that this issue was already settled. Ritzhoff eventually 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 ordered the defendant to reinstate treatment with Dr. Curtis. The appeals board denied defendant’s petition for reconsideration and let the WCJ’s decision on temporary total disability “stand, but only ‘for now.’”

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. However, since the October 27, 2009 hearing, the defendant still was unable to obtain the deposition of Dr. Gilberg, who had recused himself because of harassment by Ritzhoff. At the hearing, Ritzhoff preemptively refused to respond to any questions by defendant. With no testimony being allowed, Ritzhoff was nonetheless found totally permanently disabled and no basis for apportionment. Reconsideration was denied

The Court of Appeal reversed and remanded in the unpublished case of Ogden Entertainment Services v. WCAB.

“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.” “We address in this case therefore nothing less than one of the fundamental guarantees of a fair trial 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.” “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 importance of cross-examination as a means of testing and attacking the credibility of a witness is undiminished in the modern era.”  

Indeed, the Court of Appeal unraveled the case to a point earlier than the last hearing by stating “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.”

DWC Adjusts OMFS Pathology and Clinical Laboratory Section

The Division of Workers’ Compensation (DWC) has posted an adjustment to the pathology and clinical laboratory section of the Official Medical Fee Schedule to conform to changes in the Medicare payment system, as required by Labor Code section 5307.1.

The update includes all changes identified in Center for Medicare and Medicaid Services (CMS) Change Request (CR) number CR 9028, which can be accessed on the CMS website. The order is effective for services on or after January 1, 2015.

The order adopting the adjustments can be found at the DWC website.