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In workers’ compensation cases, we make frequent
use of declarations (e.g., L.C. 4906(g) declaration of
parties denying bribery for medical evidence or L.C.
4628(j) declaration of the medical-legal examiner).
We also see them on form pleadings such as the
Declaration of Readiness or the Certificate of No
Records. But attorneys are not restricted to the
statutorily required declarations. They can make
effective use of declarations by tailoring them to the
needs of each case.

In this article we provide some how-to tips for
deciding when and how to use declarations and
some successful examples.

 
California allows declarations under
penalty of perjury to be
used in lieu of affidavits.

See CCP §2015.5


An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the affiant), and witnessed (as to the veracity of the affiant's signature) by a taker of oaths, such as a notary public. The name is Medieval Latin for he has declared upon oath.

CALIFORNIA CODE OF
CIVIL PROCEDURE


§2002. The testimony of witnesses is taken in three modes:
1. By affidavit;
2. By deposition;
3. By oral examination.

§2003. An affidavit is a written declaration under oath, made without notice to the adverse party.


When and How to Use Declarations
Use a declaration whenever a sworn statement will help prove something important that cannot wait for
trial, or to avoid a problem that may arise later (such
as incorrect medical records or low reserves), or to
furnish a sound basis for other evidence (such as
forensic medical or vocational reports). Save the
$10 bucks to have the document notarized unless
you anticipate it may be used in a federal case or
that the signature of the witness may be disputed.

CAVEAT: Declarations, like other documents, can
only come into evidence with a proper foundation.
Labor Code §5703 specifies what is allowed into
evidence. This article is not meant to be an
exhaustive study of the subject. It is meant to inspire
you to find creative uses for declarations.


 
I declare under penalty of perjury under the laws of California that the foregoing is true and correct and that this declaration was executed in [CITY], California on [DATE].

Click here to download a Word template.

Though affidavits or declarations under penalty of perjury contain hearsay or mere conclusions, they are competent evidence if received without objection or motion to strike. Waller v Waller (1970) 3 CA3d 456, 83 Cal Rptr 533. If your opponent objects, they can depose the declarant.


To obtain and preserve evidence:
witness statements, disputed facts

Suppose the insurer denies the claim based on an
employer’s claiming there was an unwitnessed
injury and reason to doubt the worker’s veracity, and
you are able to obtain a witness’s sworn statement
to the contrary? Or your client took photos of the
accident site and you want to bring these to the
adjustor’s attention? A declaration is a good way to
document the witness testimony and the
documentary evidence.



 
 

To preserve testimony of out-of-state witnesses or other unavailable witnesses


 
 

Offers of proof: to prove up compensable consequences, increase reserves, aid in the settlement process

Ordinarily used at trial to show why a question is material or relevant, there is no reason not to submit
an offer of proof to defendants long before trial.

If you are concerned about artificially low reserves,
it sometimes helps to write a letter to the other side
setting forth some information, by way of a sworn
statement, and ending with, "In view of the above,
you may wish to increase your reserves."

Reserves are often neglected after being set early
in a claim. So if something unusual happens (e.g.,
problem starts in one hand, then involves the other,
or a pain syndrome is diagnosed), an "increase your
reserves" letter may help pave the road to settlement
rather than last minute MSC "sticker shock" and trial
setting.

A declaration with offer of proof can furnish useful
information, such as self-procured treatment relating
to claimed compensable consequences, side
effects of medications, effect of the injury or
treatment on ADLs, and the like.




 
Declaration with Offer of Proof:
“I, INJURED WORKER, if called to testify, will testify substantially as follows:

1. On [DATE], while walking down the stairs in my house, my left leg gave out and I fell, striking my right wrist on the banister.

2. My wife drove me to X Medical Center, where an x-ray revealed a broken radius.

3. Blue Shield, my private health plan, paid for the treatment.

I declare under penalty of perjury, etc.”

To segregate injuries from a civil case

In a recent case, my client injured his left lower
extremity in a work-related accident. He later had
a non-industrial motor vehicle accident and went to
a different doctor from the one treating him for the
work injury. The workers' compensation carrier was
pursuing subrogation rights in that case, based on
an ambiguous note in the doctor’s chart. At my
suggestion, the personal injury attorney and I both
prepared declarations to clarify the non-PTP’s
records and to keep the cases segregated. We thus
avoided the issues of liens and credits. Click here
for the Declaration and transmittal letter to the
claims adjuster.


 
 

Medical Evidence:

To prove or disapprove statements made in
letters to doctors


Suppose the AME or QME is apportioning to obesity,
but you have a photo right before the accident
showing that the applicant is not obese. Even better,
a photo of the applicant engaging in athletic activity.
Prepare a declaration attesting to the time and
circumstances depicted in the photo.

 
 

When opposing counsel sends an argumentative
and biased review of the medical evidence to the
AME or panel QME


Prepare a declaration entitled “APPLICANT’S
COMMENTS ON HISTORY PROVIDED BY DEFENSE
COUNSEL.” The best practice is to advise your client
in writing to review defense counsel’s letter and
provide written comments on inaccuracies or
distortions of the client’s history. Advise that you will
be preparing a document for the client to sign under
oath and warn them of the dangers of perjury or fraud
under the workers’ compensation law. If they return
written comments that warrant a formal declaration,
prepare it, then again warn them not to sign unless
their comments are true and they will swear to them
on the witness stand. Minor changes can be
corrected by the client in the doctor’s office, but
anything that may affect the outcome of the case
needs prompt written correction. Of course, make
sure the declaration does not contradict the client’s
previous deposition testimony, if any.

Also consider that Labor Code 4062.3 specifies what
can be sent to the panel QME or the AME. If you are
writing separate letters, as many of us do, especially
in the northern part of the state, be prepared to
counter any rants of your opponent if you dare to
correct their analysis of the medical history by
submitting your client’s comments. A sample
response to such a claim is provided here.



 
Defendants often characterize the medical evidence in an inaccurate manner, and the sworn statement of the injured worker would be an appropriate response to any argumentative distortion. Labor Code §4062.3 allows “nonmedical records relevant to determination of the medical issue” to be submitted by any party, subject to service and objection….”

For entire statute, click here.


To counteract comments in medical reports

Prepare a declaration labeled:

DECLARATION OF [APPLICANT’S NAME]
RE: REPORTS OF [AME], M.D.

Insert the applicant’s version of what went on.

For a sample, click here.


 
 

When the medical record contain errors

A short and simple declaration can correct a glaring
error in the medical records. Suppose you find a
pre-op report talking about your client’s shoulder,
and the wrong one is mentioned? This can cause
trouble later, and form an erroneous basis for
apportionment. A short declaration correcting this
can be sent to the doctor for inclusion in the patient’s
chart. Make sure the client is given a copy with
instructions for safekeeping, should problems arise
in the future.


 
 

Employment Records :

To show other employment for purposes of
establishing the right to additional TD or to limit
wage loss


 
 

To show other employment to counteract accusations or surveillance video

For a sample, click here.

 

To establish work restrictions & to increase or decrease the factors of permanent disability

Work restrictions have not disappeared in the AMA
Guides-new permanent disability rating schedule
environment. They are necessary for return to work
issues, including retaining the former job, offers of
modified or alternate employment, diminished future
earning capacity (DFEC) analysis, and FEHA claims.
For old schedule cases they are essential to the
rating and to LeBoeuf analysis, and for vocational rehabilitation cases.

The sample declaration and extracts of a deposition
transcript
show how the declaration can be used to
increase the rating under the old schedule, The
same process can be used to provide a basis for
DFEC analysis.


 

To show that the IW can or cannot do the job that is offered as alternate or modified


 

Explaining Surveillance Videos

Videos frequently contain missing minutes as a
result of “field editing,” where the investigator
intentionally does not record a lack of activity or
activity showing pain response. The result is a video
that shows continuous motion, as though there was
no rest in between the action, and no grimaces or
other signs of difficulty with the activity.

Do not rely on the physician to figure this out.
Invariably, the physician is observing body
mechanics and not the counter in the corner of
the screen.

Prepare a declaration in consultation with the
applicant that explains the activity and notes the
missing minutes.

Click here for sample 1

Click Here for sample 2


 
For more on how to analyze surveillance videos, visit the archives: "Explaining Surveillance Videos”.
How to Use Declarations to
Improve Your Case
By Marjory Harris
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