A subsegment of workers compensation claims are death claims resulting from criminal actions against an employee resulting in his or her alleged death in the course of employment. As with general death claims, the initial threshold requirement and analysis is that the accident must occur in the course of and arise out of the claimant's employment in order to be compensable. When the accident arises out of purely personal reasons, it is not compensable. O.C.G.A. § 34-9-1(4)("'Injury' and 'personal injury' shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee"). On the other hand, the fact that the injury is the result of the criminal assault of a third person does not prevent the injury from being accidental within the meaning of Act. Hartford Accident & Indem. Co. v. Cox, 101 Ga. App. 789, 115 S.E.2d 452 (1960).
However, when a criminal assault or other such actions are involved there is often a concurrent criminal proceeding in which the alleged assailant, who caused the employee's death, is on trial as a "Defendant." These criminal proceeds are often lengthy and can proceed alongside the workers compensation claim involving the same facts. They may also provide necessary and significant evidence, including testimony and/or documentation which may be helpful for the Employer/Insurer in defending against the pending workers compensation claim. For instance, transcripts from the initial indictment hearing or subsequent motions hearings may include the Defendant's testimony concerning the death of the employee. Unfortunately, attempts to depose the Defendant or have him appear at the hearing during the pending criminal proceeding may prove unfruitful as the Defendant would likely plead his Fifth Amendment Right against self-incrimination due to the high potential for self-incrimination. Thus, mandating the introduction of the prior testimony.
To introduce the Defendant's prior testimony into the Workers Compensation claim, the Employer/Insurer will need to overcome the hearsay exception, based on the unavailability of the testifying witness under O.C.G.A. § 24-8-804. If there is a transcript of the Defendant's prior testimony, the Employer/Insurer first course of action to resolve this issue would be to request that opposing counsel stipulate to the authenticity and admissibility of the transcript, which may be highly unlikely.
Fortunately, courts have established the basic requirement for admitting testimony of a witness given "at another hearing of the same or a different proceeding" requires: (1) the declarant be unavailable; (2) the testimony be given "at another hearing of the same or a different proceeding"; and (3) "the party against whom the testimony is now offered ... ha[ve] an opportunity and similar motive to develop the testimony by direct, cross or redirect examination." See Dukes v. City of New York, 879 F. Supp. 335, 343 (S.D. N.Y. 1995). See Martin v. State, 284 Ga. 504.
Unavailability of the Witness
"Unavailability" is defined in O.C.G.A. § 24-8-804(a) as a situation in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) Testifies to a lack of memory of the subject matter of the declarant's statement;
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance or, in the case of exceptions under paragraph (2), (3), or (4) of subsection (b) of this Code section, the declarant's attendance or testimony, by process or other reasonable means.
In Bolling v. State, 300 Ga. 694 (2017),the Georgia Supreme Court found that "unavailability as a witness" occurs when a witness is absent from the hearing and the proponent of the statement was unable to procure the attendance by process or other reasonable means..." Id. Accordingly, the Court ruled that the proponent must show that reasonable, good-faith efforts to locate the witness were made, which is reviewed on appeal on an abuse of discretion standard. However, Georgia courts will not accept temporary inaccessibility as a means of submitting prior witness testimony. See Tanner v. State, 213 Ga. 820 (1958) (holding that a witness who was sick and unable to testify at a specific term of court because of the sickness, was not unavailable as no evidence was submitted to establish the witness would never be available to testify.).
However, under O.C.G.A. 24-8-804(a)(1), a witness' invocation of his Fifth Amendment privilege against compelled self-incrimination, once accepted by the trial court, made him "unavailable as a witness." Flading v. The State, 327 Ga.App. 346 (2014) (citing OCGA § 24-8-804(a)(1) (explaining that a hearsay declarant is "unavailable as a witness" if he "[i]s exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement"). See also Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (holding that a defendant's Fifth Amendment privilege against self-incrimination is not extinguished by the entry of a guilty plea but rather may be asserted at least until sentencing).
As per the above, it is highly probable, that any attempts to depose the Defendant or have him appear at the hearing for the workers compensation claim would prove unfruitful due to the high potential for self-incrimination. Thus, by deposing the Defendant, this prong can he established upon his assertion of his Fifth Amendment rights as to any relevant information that he previously testified to.
Opportunity to Cross Examine
This third prong required to introduce testimony from other trials or similar proceedings is that the party against whom the prior testimony is being offered had an opportunity to develop the testimony by direct, cross, or redirect examination. O.C.G.A. § 24-8-804(b)(1). In HA&W Capital Partners, LLC v. Bhandari, 346 Ga. App. 598, 816 S.E.2d 804 (2018) the court interpreted this statute to deny the introduction of testimony from a non-party in an unrelated case. The Court in Bhandari held that testimony regarding company protocol in a construction dispute was not permissible because the opposing counsel did not receive a meaningful opportunity to cross-examine the witness.
However, testimony from a previous proceeding or deposition can be introduced even if the parties are different between the initial proceeding in which the testimony was given and the current proceeding in which it is being introduced. Bischoff v. Payne, 239 Ga. App. 824, 522 S.E.2d 257 (1999); see also Pope v. Fields, 273 Ga. 6, 536 S.E.2d 740 (2000). The requirement is that both the parties and the issues were substantially similar. The requirement of substantial similarity is specifically to ensure that the party against whom the testimony is now offered had an opportunity adequately to cross-examine the witness at the previous proceeding. Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013). It is not necessary that the parties to the actions be the same, only substantially the same. The Atlanta & W. P. R. Co. v. Venable, 67 Ga. 697; Gavan v. Ellsworth, 45 Ga. 283 (1872); Goodwin v. Allen, 83 Ga.App. 615, 64 S. E.2d 212, Moultrie Nat. Bank v. Travelers Indem. Co., D.C., 181 F.Supp. 444, 445.
The similarity of the parties can be bypassed by showing that the previous party against whom the testimony was offered had a similar motive to examine the witness at the prior proceeding. Gavan v. Ellsworth, 45 Ga. 283 (1872). However, this may well turn on the purpose served by the testimony in the prior proceedings. See Hosick v. State (the witness's testimony at a preliminary hearing was admitted at the trial of the case based upon the court's finding that the defense had an adequate opportunity for cross-examination and that the issues involved in the preliminary hearing were similar to those presented at trial. Hosick v. State, 262 Ga. 432 (4), 421 S.E.2d 65 (1992). See Martin v. State, 284 Ga. 504 (2), 668 S.E.2d 685 (2008) (allowing witness's testimony at sentencing phase of former death penalty trial to be used during guilt/innocence state of retrial). However, in Dickson v. State, the court reached the opposite conclusion after finding that a bond hearing does not involve issues similar to those at trial and thus does not allow for a full opportunity to cross-examine the witness. Dickson v. State, 281 Ga. App. 539 (1), 636 S.E.2d 721 (2006). Other states have specifically found that the State in a criminal prosecution, prosecuting a defendant, followed by the injured party filing a civil claim against the same defendant, were substantially the same parties for introduction of prior witness testimony. The Atlanta & W. P. R. Co. v. Venable, 67 Ga. 697 (1881) (citing Gavan, 45 Ga. 283).
Specifically, the Venable Court explained the ruling of the Gavan court and its holding that the great right of cross-examination has been exercised and the plaintiff represented by the state and in that view, it was substantially the same party. Id. The Venable Court supporting this holding by further analyzing that if a narrow construction was placed on the "qualifying adverb 'substantially,' so as to require the identical parties, its force is entirely gone, and that word had as well have been omitted." Id. (citing Code, §3782; 45 Ga. 283; 1 Greenleaf 164, 198, 236 et seq.). A worker's compensation claim arguably involves the same parties in the sense that the opportunity to cross examine rests with the same party that held this right within the previous hearing. The State in pursuing its interests in prosecuting the Defendant holds substantially the same interests in prosecuting the Defendant and obtaining the correct account of events that transpired on the date of the incident as the claimants within a worker's compensation claim. Thus, the claimants seeking monetary damages for the deceased employee had sufficient opportunity to cross examine, through the prosecution within the criminal trial or hearing.
With respect to the substantially same issue inquiry, we can argue that similar to the substantial similarity between the parties, the issues within the Motions hearing and the immediate claim need not be exactly the same, they just need to be "substantially" the same. The court in Prater v. State clarified this issue, holding as follows:
...the emphasis is on whether there is sufficient similarity so that there was previously an adequate opportunity for cross examination. The 'requirement of identity of issues, is like the rule about parties, merely a means of fulfilling the policy of securing an adequate opportunity of cross examination...(The rule) does not require that all the issues (any more than all the parties) in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second. Additional issues or differences in regard to issues upon which the former testimony is not offered are of no consequent. Moreover, insistence upon precise identity of issues, which might have some appropriateness if the question were one of res judicata or estoppel by judgment, are out of place with respect to former testimony where the question is not binding anyone, but merely of the salvaging, for the which it may be worth, of the testimony of a witness not now available in person.'
Prater v. State, 148 Ga.App. 831 (1979) (citing McCormick on Evidence 256, 257 (2nd Ed., 1972)).
In Prater, previous testimony given at commitment hearings was allowed and concerned the same crime at trial.
Where the previous hearing directly relates to the motive of the defendant's crime, which results in the employee's death, as well as testimony concerning the events which transpired and lead up to the event. These facts are substantially the same as issues within the workers compensation claim and would be used to assert the basis of the Employer/Insurer's defense as relating to the motive for the employees death as unrelated to the employee's employment with the insured. Further, the issue as to the events that led up to the employee's death, testimony relating to these facts is relevant in showing that the death did not occur based on any issues arising out of or in the course of the deceased employee's employment with the insured.
Conclusion
Accordingly, following the deposition of the Defendant, in which the Defendant presumably will assert his Fifth Amendment rights, refusing to answer any questions, the Employer/Insurer can establish that he is an unavailable witness. Moreover, the Employer/Insurer can argue that the issues and parties were substantially the same based on precedent established within Georgia courts. Thus, the opportunity of the prosecution within the criminal hearing was equivalent to an opportunity presented to the claimant. The issues are also similar in that they directly correlate with the facts in question concerning the date of the incident. As both these issues are relevant to this claim, they must be admitted into evidence through the admission of Defendant's testimony.
Originally published JUNE 1, 2021 .
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