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May the Deposition of an Injured Worker's Spouse Be Compelled in Workers' Compensation Proceedings?

The law establishes a marital privilege protecting a person from testifying against his or her spouse. Although this privilege commonly is used in criminal proceedings, it has broader application.

Evidence Code § 970 states that "[A] married person has a privilege not to testify against his spouse in any proceeding." Evidence Code § 971 states that "[A] married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party." In addition, Evidence Code § 980 states that "[A] spouse ... whether or not a party, has a privilege during the marital or domestic partnership relationship. ..." This privilege also applies in workers' compensation proceedings.
The marital privilege, however, is not absolute. It may be waived if a person chooses to testify against his or her spouse. If a spouse testifies against an injured worker, the spouse may not claim the marital privilege in those proceedings (Evidence Code § 973(a)).

The nonparty spouse also may be compelled to testify in certain situations. The privilege does not apply if the communication was made “to enable or aid anyone to commit or plan to commit a crime or a fraud” (Evidence Code § 981). Also, Evidence Code § 973(b) states, "There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse."

The question, then, is whether workers' compensation benefits are for the "the immediate benefit" of a spouse under Evidence Code § 973(b), allowing the spouse to be deposed in the workers' compensation proceedings. Unfortunately, the question has not been answered clearly. The courts have disagreed on when civil damages are for the immediate benefit of a nonparty spouse.

In Duggan v. Superior Court of Napa County (1981) 127 Cal. App. 3d 267, the 1st District Court of Appeal held that a spouse was not a person for whose immediate benefit an action was brought solely because she had a potential community property interest in civil recovery. The court believed that any claim to a community property interest would be against the party spouse, rather than the opposing party in the civil suit.

The following year, however, in Hand v. Superior Court of San Joaquin County (Boles) (1982) 134 Cal. App. 3d 436, the 3rd District Court of Appeal reached a different conclusion. It held that personal injury damages are community property for the "immediate benefit" of the noninjured spouse, subjecting that spouse to a deposition. Because workers' compensation benefits received during the marriage also constitute community property (see Raphael v. Bloomfield (2003) 113 Cal. App. 4th 617), such benefits arguably are for the immediate benefit of the noninjured spouse for the purposes of Evidence Code § 973(b).

It has been more than 25 years since these cases were decided, and the issue remains unresolved. No other appellate level decisions have addressed the issue. In Chavez v. Frank Fiala Roofing, 2017 Cal. Wrk. Comp. P.D. LEXIS 235, however, the WCAB addressed the Evidence Code § 973(b) exception to the marital privilege as it applied to workers' compensation proceedings. The WCAB noted that the defendant cited Hand to support its argument that workers' compensation benefits were for the immediate benefit of the nonparty spouse, but relied on Duggan to support its opinion that the nonparty spouse could not be compelled to testify under Evidence Code § 973(b).

Because of the split, the WCAB in Chavez had authority to choose between the conflicting decisions. Because there is no binding authority, it remains an open issue as to whether a nonparty spouse may be compelled to testify under Evidence Code § 973(b).

Nevertheless, employers seeking to depose an injured worker's spouse probably will face a significant hurdle. Without addressing the exception in Evidence Code § 973(b), the WCAB has demonstrated that it is reluctant to allow employers to depose an injured workers' spouse. (See Hershewe v. WCAB (Clabaugh) (2002) 67 CCC 1198 (writ denied); Cast Aluminum & Brass Corp. v. WCAB (Mota) (2012) 77 CCC 200 (writ denied).)

Unless further case law develops, the WCAB probably will continue to rely on Duggan to find that workers' compensation benefits are not for the immediate benefit of the noninjured spouse under Evidence Code § 973(b), and deny employers' efforts to depose the noninjured spouse.