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Ogden Entertainment Services v. Workers' Compensation Appeals Board

California Court of Appeals, Second District, First Division

December 31, 2014

OGDEN ENTERTAINMENT SERVICES et al., Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD and KRISTIAN VON RITZHOFF, Respondents.

PROCEEDING to review a decision of the Workers’ Compensation Appeals Board. Nos. ADJ4599548, ADJ1414058

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COUNSEL

Floyd, Skeren & Kelly, Terry L. Smith and Timothy D. Morgan for Petitioner.

Kristian Von Ritzhoff, pro. per., for Respondent Kristian Von Ritzhoff.

James T. Losee for Respondent Workers’ Compensation Appeals Board.

OPINION

CHANEY, J.

The workers’ compensation judge (hereafter WCJ) found respondent Kristian von Ritzhoff (hereafter Ritzhoff) totally permanently disabled. The Workers’ Compensation Appeals Board (hereafter appeals board) denied the petition for reconsideration and adopted the WCJ’s decision as its own. Ritzhoff obtained this lifetime award even though he refused to subject himself to cross-examination.

We annul the appeals board’s decision because the due process right of defendant Ogden Entertainment Services (hereafter defendant) to cross-examination was violated. We remand with directions for new proceedings consistent with this opinion.

The Original Orthopedic Injury

Ritzhoff sustained injuries on March 16, 1996, to his right ankle, right hand, back and psyche while working as a banquet server for defendant. The orthopedic injuries were admitted. Defendant denied the claim of an industrial psychiatric injury.

The orthopedist, who performed three surgeries on Ritzhoff’s right ankle, Dr. Forman, found Ritzhoff’s right ankle permanent and stationary as of October 25, 2005. Save for its significance as the origin of Ritzhoff’s psychiatric injuries, the orthopedic injury dropped out of consideration after Dr. Forman found it permanent and stationary.

The Psychiatric Injuries

As discussed below, the WCJ ultimately found Ritzhoff to be permanently and totally disabled. In reaching this conclusion, the WCJ relied on the opinion of Ritzhoff’s treating psychiatrist, Thomas A. Curtis, M.D. (hereafter Dr. Curtis).

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Dr. Curtis initially evaluated Ritzhoff on December 14, 2001. During the clinical interview situation, Dr. Curtis noted that Ritzhoff demonstrated diminished cognitive functioning. Ritzhoff’s psychological test results indicated that he had severe depression, suicidal ideation, severe anxiety, and total neuroticism. Dr. Curtis found Ritzhoff temporarily totally disabled on a psychiatric basis and in need of emotional treatment.

Defendant made temporary disability payments. There is evidence in the form of Ritzhoff’s testimony that at some point in early 2006 defendant ceased making these payments, claiming that there was no psychiatric disability. This brought about the expedited hearing of May 18, 2006, which was convened for the purpose of determining whether Ritzhoff was temporarily psychiatrically disabled.

Total Temporary Disability (May 18, 2006)

The hearing commenced with Ritzhoff’s testimony that the report that he was permanent and stationary on which defendant relied was false. Under examination by the WCJ, Ritzhoff testified that his attending psychiatrist told him that psychiatrically he was temporarily totally disabled.

Defendant then began to cross-examine Ritzhoff. Significantly, on cross-examination Ritzhoff effectively admitted working from time-to-time since his injury in 1996. However, the WCJ terminated cross-examination over defendant’s objection and even though defendant had not finished because of alleged time constraints arising from the expedited nature of the hearing. Defendant made an offer of proof that its investigator would show film of Ritzhoff working around the house and working at an art gallery and “doing other things from 2004 through 5-9-06.”

By interim opinion on decision dated May 23, 2006, the WCJ found Ritzhoff temporarily totally disabled from a psychiatric injury that was caused by the orthopedic injury to his ankle. This was based on a medical report that stated that the predominant cause of his “depressive symptoms” was prolonged orthopedic pain, especially from the right ankle injury. This medical report was dated February 24, 1999, and was generated by the Barrington Psychiatric Center. The WCJ noted there was no medical report stating that psychiatrically Ritzhoff was permanent and stationary and that it was “easy to extrapolate from the totality that applicant is still temporarily totally disabled.” The WCJ ordered continued temporary disability payments. The WCJ noted that the videotape defendant sought to have admitted was “more appropriate for later cross-examination (of a doctor and/or applicant as to accuracy of his history) rather than at this stage of the proceedings.” The WCJ also noted that Ritzhoff had been in propria persona since 1998.

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The appeals board denied defendant’s petition for reconsideration on June 7, 2006.

Psychiatric Reports 2008-2009

The independent medical evaluator in psychiatry, Arnold Gilberg, M.D., Ph.D. (hereafter Dr. Gilberg) issued a report on July 14, 2008, agreeing with Dr. Curtis that Ritzhoff would become permanent and stationary psychiatrically by December 31, 2008. Dr. Gilberg also opined Ritzhoff’s “permanent disability [was] inextricably intertwined between the various injuries in question.” Dr. Gilberg apportioned 95 percent to industrial factors and 5 percent to non-industrial factors.[1] However, Dr. Gilberg opined Ritzhoff was not “occupationally feasible from a psychiatric standpoint.”

As of August 2008, Ritzhoff had received electric shock therapy and Dr. Curtis requested authorization to treat Ritzhoff’s anxiety-mediated Parkinson’s-type tremors and for related muscle twitches and tensions. By November 6, 2009, Ritzhoff had attempted suicide by hanging while he was hospitalized. Dr. Curtis opined that it was obvious to him Ritzhoff was totally and permanently disabled on a psychiatric basis.

There now followed three hearings. The first two focused on whether Ritzhoff was psychiatrically permanent and stationary and thus no longer entitled to temporary disability payments. The third hearing ended with the finding that Ritzhoff was permanently disabled. Ritzhoff refused to be cross-examined at all three of these hearings.

The First Hearing (April 23, 2009)

The hearing before the WCJ

Ritzhoff requested the April 23, 2009 expedited hearing to resolve the issue of temporary disability benefits, which he claimed had been terminated.

The defense position was that Ritzhoff was permanent and stationary.[2] It is clear that the defense intended to show this at least in part by Ritzhoff’s

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testimony, [3] although the medical reports also supported this conclusion. Dr. Forman, the orthopedic doctor who performed three surgeries on Ritzhoff’s right ankle, found Ritzhoff’s right ankle permanent and stationary as of October 25 2005. Dr. Gilberg, the independent medical evaluator in psychiatry, issued a report on July 14, 2008, agreeing with treating psychiatrist Dr. Curtis that Ritzhoff would become permanent and stationary psychiatrically by December 31, 2008.

Defendant also sought to re-depose Dr. Gilberg on the amount of permanent disability. The WCJ agreed the defense was entitled to depose Dr. Gilberg but suggested deposition by interrogatories.

After defense counsel’s statement about the object of Ritzhoff’s cross-examination, the WCJ asked Ritzhoff to take the stand. Ritzhoff stated: “I object to be cross-examined without an attorney.” The WCJ told him he was his own attorney, as he indeed had been since 1998.

Ritzhoff’s behavior from this point on was remarkable. This was his reaction to being reminded by the WCJ that he had been his own attorney for over 10 years: “No. I object. I object. I asked for -- Your Honor, I object. Your Honor, I object. One thing, I asked for this trial that you will subpoena Ms. Lomolongo (phonetic) in March to come here and indicate why they cut the benefits without proper authorization and legal condition, which warrants them -- which warrants that all the medical reports have to be together and that is done by approaching the court with a filing, which is titled DOR if I’m not mistaken, and they don’t have it. Okay. So Dr. Mitzelfelt objecting in his letter there. If I could, can I read it? Or have you seen that?”

After the WCJ told him that defense counsel had the right to ask him questions, Ritzhoff replied that he was not “ready to be cross-examined because I provided the Court with enough information with a violation of this firm and their client to properly inform an evidence by law [sic] why they cut my benefits.” Next, Ritzhoff took the stand only to deliver a short monologue, concluding: “What I’m saying here, I am not going to testify. I’m tired; I feel sick. I called the doctor and he told me don’t -- this Judge has no care about my health. He wants to throw me into the abyss of infinity.”

Defense counsel finally got a word in when he stated that he had a due process right to cross-examine Ritzhoff. Ritzhoff’s response was to accuse the defense of “criminal ...


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