An important part of defending a workers’ compensation claim is the discovery process. Whether defense counsel decides to utilize answers to interrogatories, request for production of documents, or the ever popular deposition, one thing is certain: discovery is invaluable. Depositions are by far the most utilized form of discovery and the reason for this is that the defendant is able to gain a great deal of information during an applicant’s deposition, such as prior work history and prior injuries the applicant has sustained. The defendant is also able to obtain crucial information that can be used in properly identifying the applicant, such as a photo ID and his or her social security number.
However, one issue that has more recently come to the forefront is that applicant attorneys are becoming more hesitant to allow an applicant to disclose any information regarding his or her SSN. Opposing counsel will not allow this disclosure either on or off the record. It appears that applicant attorneys are becoming more fearful of immigration consequences that may come up given the newly-elected Administration. An increase in Immigration and Customs Enforcement raids have left many applicant attorneys fearful of disclosing their client’s SSN for fear of the immigration consequences it may have.
Given that California is home to 3 million undocumented immigrants and that 2.8 million of these immigrants make up our work force, this will obviously have an effect on our workers’ compensation system.
When deposing an applicant, California Code of Civil Procedure § 2017.010 allows an attorney to pose any questions that are “reasonably calculated to lead to the discovery of admissible evidence” so long as it does not require disclosure of privileged material. An applicant’s SSN is obviously relevant to a work comp proceeding and, therefore, must be disclosed. The only exception to this being that California Evidence Code § 990 allows a deponent to refuse to answer a question on the basis that doing so would violate his or her constitutional right against self-incrimination. For undocumented applicant’s this provides the basis for their refusal to disclose the SSN that they are using illegally.
In the split-panel decision of Arzaga v. Koosharem Corp. dba Select Staffing, ESIS/ACE American Ins. Comp., 2013 Cal. Wrk. Comp. P.D. LEXIS 140, the WCAB upheld a workers’ compensation judge’s determination that the Board could not order the applicant to disclose SSN information. The WCJ reasoned that the Board could not order this disclosure based on the voluntary nature of 8 CCR Sect. 10400(h); even though Defendant had evidence that the applicant had provided multiple and conflicting SSNs and was seeking the applicant’s confirmation of this fact, and to see if she had worked under any additional SSNs.
To support its ruling the WCJ indicated that the applicant had already disclosed 2 different SSNs in her deposition and that Defendant had additional means by which to obtain past medical and employment history, such as deposing the applicant again and acquiring a valid photo ID if one was available.
Nevertheless, the above case is not binding on any district office and, therefore, this issue is still open for further litigation. In practice, if opposing counsel instructs the applicant to refrain from answering any questions regarding his or her SSN, best practice would be to make a clear record by: 1) restate the question, 2) restate that opposing counsel has instructed the applicant not to answer, 3) ask the applicant whether they are refusing to answer on the advice of counsel, 4) have opposing counsel restate their basis for objecting, and that they instructed the applicant not to answer, and 5) file a petition with the Board to compel responses to the deposition questions, and hopefully receive an order compelling the testimony.