In WCAB vs. Chevron (2021), the Workers’ Compensation Appeals Board issued a Significant Panel Decision on with respect to how California Workers’ Compensation Appeals Board have trials done remotely. Currently, the WCAB uses a “zoom” like product called Lifesize to conduct their trials.
What Was the Chevron Case issue?
In Chevron, in person testimony was taken. After the change to remote testimony, there was additional witness testimony. The Workers’ Compensation Judge on the matter did not want to proceed. The issue was essentially whether all testimony be taken in the same manner. Thus, there was the argument that the matter be delayed until “in person” testimony could take place.
The Applicant wished the matter to proceed with remote testimony rather than wait.
What Was the Ruling?
In the particular case, the WCAB ordered the trial to proceed with remote testimony.
The WCAB, ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”
“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.” [emphasis added]
What Facts Would Required for “In Person” Testimony?
At trials, Judges have the opportunity to view Injured Workers when they are not testifying. They see them sitting and observing the trial, and they see them walking up to take the stand to testify, and they see them during break time. Additionally, they are able to view the Injured Worker’s posture during testimony. Thus, it is possible to view whether someone is exhibiting pain behavior.
Based upon my 29 year Trial Attorney experience, an Applicant’s live testimony is important when there is an allegation of marked or profound disability. Thus, if an Injured Worker has a severe limp, a Judge would be able to observe it if there was live testimony. This observation is not possible with remote testimony.
Thus, matters in which observation of the Applicant is of import would be the cases upon which a party may wish to have “in person” testimony.
What If I Need Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.