01 Mar 2017

California: Negative Inference and Positive Presentation

Currying Judicial Discretion

In Valdovinos v. Colormax Industries Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 676, Applicant alleged primarily a continuous trauma injury based on some 30 years of employment because of exposure to chemicals. He suffered from diabetes and hypertension. (Note: Both of these conditions at an end-stage can seriously affect the eyes, which, in applicant’s case, did apparently produce blindness.) Applicant was seen by a PQME internist who opined that none of the chemicals involved with the fabric dyes that applicant used would cause diabetes or high blood pressure. He was likewise seen by his own treating physician who never came to final conclusions but did write a report indicating that some aggravation of applicant’s condition could have been caused by industrial solvents.

Both physicians requested MSDS sheets (material safety data sheets). Applicant’s office subpoenaed MSDS sheets. In response, defendant served a certificate of no records with the declaration of custodian of records stating that, “all records for the time period in question have been destroyed pursuant to our document retention policy. We only keep 5 year [sic] and the person quit 9 years ago.”

The matter proceeded to trial. Applicant testified that he told all the doctors the chemicals and materials he worked with. He also described the chemicals further via his testimony. At no time did he mention industrial solvents. Applicant’s attorney’s office argued that a negative inference should be assumed by the Court. They claimed that the employer had violated their duties under Labor Code Sections 6398(b) and 6399 when they destroyed the MSDS sheets. These statutes collectively establish a duty upon the employer to furnish MSDS sheets to an employee upon request. Applicant also quoted federal law regulation title 29 C.F.R. § 1910.1020(D)(ii) which maintains that employee records shall be preserved and maintained for at least 30 years. In light of these alleged violations by the employer, the applicant asked the WCJ to assume a negative inference mainly that such solvents did exist sufficient to have caused applicant’s condition.

The WCJ, after hearing the matter, decided that the PQME was more credible and he would not assume any negative inference. Applicant filed a Petition for Reconsideration once again asserting the negative inference, complaining that the PQME had addressed “causation” but not “aggravation” and asking that the matter be re-opened to develop the record further pursuant to Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal. App. 4th 389, 62 Cal. Comp. Cases 924, and McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138, 141 (WCAB en banc). The panel on reconsideration noted that under Evidence Code § 413, a negative inference is permissive but not mandatory and depends on multiple factors including the due diligence of the party asserting it. They determined that the Labor Code sections do not specifically state that MSDS sheets need to be retained for a former employee. In this case, applicant requested the sheets many years post-employment. And the panel correctly noted that the Code of Federal Regulations actually does not require the MSDS sheets at all, so long as the employer keeps some history of the identity of the chemicals used. The panel noted that applicant had not made any effort to further investigate whether the company could provide information as to the chemicals utilized in the absence of MSDS sheets. Accordingly, the Petition for Reconsideration was denied.

Commentary:

Applicant’s attorney’s argument was creative. The negative inference is seldom used in workers’ compensation. In truth, any time someone refuses to provide information, whether a witness or a company, it is a very valid and useful inference to consider. We have dealt with this previously on these pages (see “To Be or Not to Be Present: That Is the Question” LexisNexis Newsletter). However, it should be obvious that just because someone refuses to provide information, that is not necessarily a carte blanche presumption that they would have said exactly what the attorney wanted to prove. In this case, there had been no particular evidence of solvents used by applicant presented to either his physicians or to the Court at trial.

It is useful to remember that workers’ compensation is a court of equity. Likewise, any such presumption is only permissive depending on judicial discretion, and the Court will weigh the various equities involved. In this particular case, there was no convincing evidence from anyone that solvents were utilized. Applicant’s attorney was arguing that the record should be reopened and that the Court had a duty to develop the record further. But, of course, the counterargument to that is, the applicant and his attorney had not made any further efforts themselves to depose the person most knowledgeable at the employer, or to even have applicant testify as to his use of solvents specifically. On the other hand, the panelists’ supposition that the Labor Code only requires maintaining the MSDS sheets as long as the employee is still there seems contrary to the intent of the statute. But, weighing the equities, the decision could theoretically have gone either way.

Takeaway Points:

1. Keep in mind that there is a negative inference that can be asserted when a witness obfuscates or when information is not provided.

2. However, one cannot invent what is to be inferred without providing some form of evidence. Therefore, when asserting a negative inference, one must attempt to develop the record as to why the inference would otherwise be reasonable.

3. If information is not provided by way of subpoena, the next step should always be to consider deposing the person most knowledgeable.

4. When asserting an inference, the applicant should ensure that his testimony addresses any and all information which he may possess and which would be useful.

5. And there is another point here that is very important as well. There are different styles among attorneys. Some are more aggressive; others are more cerebral. It is not necessarily true that one personality type is always better than the other. It also seems to be a truism that one cannot be something that one is not and therefore an attorney needs to look within himself or herself to establish what rings true in terms of their true inner voice.

On a personal note, when I started almost 30 years ago, my petitions to the Court were significantly more biting if not outright hostile than they are today. Now I always use the term “The Hon. Judge”, seldom mentioning them by name, and I focus on the arguments. I have seen over the years that when attorneys are even mildly deprecating of the Judges, there are often disastrous results. (I am limiting my discussion to conduct with the Judiciary and not necessarily speaking of a hostile witnesses.) I know of one case of someone whom I respected very much and with whom I used to work, where she expressed unnecessary hostility to the Court and everything spiraled downwards from there and she was severely disciplined. There is a way to make a strong argument based on the facts alone.

It is easy to be a backseat driver. No one knows really what may or may not have made the key difference in measuring equities. But in this particular case, the Petition for Reconsideration continually mentions the Judge by name and accuses him of flawed reasoning, failure to consider the evidence, and making opinions that are not sustainable.

Certainly when dealing with a discretionary presumption, every act of kindness counts. And beyond the discussion at hand, this is certainly true for life as well.