Kamin: WCAB Says Trials Ought to Proceed With Distant Testimony| Staff Compensation Information

By John P. Fireplace

Thursday, February 11, 2021 | 28 | 0 | min read

Objections to remote testimony should not prevent workers compensation proceedings from continuing unless there is evidence why remote testimony would be problematic, the Workers Compensation Appellate Body ruled in a recent important decision by the panel.

John P. Fireplace

On January 12, the Board of Appeal ruled in the case of Limin Gao v Chevron Corp. an important panel decision addressing legal proceedings and objections to remote testimony.

The parties had an ongoing case when the pandemic hit in March 2020. The applicant had just given evidence on March 10, and the case continued until June 9, as the defendant intended to call several witnesses.

Due to the pandemic, the WCAB stopped the face-to-face trials from March 16. As the next trial date was running out, the applicant wanted to continue televised testimony, while the defendant insisted that the trial could only continue if personal testimony could be heard.

The judge continued the process and found that the defendant had objected to remote testimony and the applicant filed a request for removal.

The board ruled that continuation of the proceedings only because no personal testimony was available violated the applicant’s constitutional right to due process, that is, the right to be heard. This meant that the complainant was entitled to the remote testimony trial without further delay, unless the defendant could provide a good reason why remote testimony was problematic.

“Of course, each case must be resolved in the circumstances, and it would therefore be inappropriate to introduce a blanket rule that it is per se inappropriate to continue a case to allow personal testimony,” the WCAB commissioners wrote. “However, given Executive Order N-60-20, the purposes of the employee compensation scheme, and the current conditions, the standard position should be for the judicial proceedings to be conducted remotely unless there is a clear reason why the facts of a particular company require the case a continuation. Furthermore, in this case, as the party seeking to continue, the party should bear the burden of demonstrating why it is necessary to continue. “

If a party objects to a trial just because they want a personal testimony, they should have a good reason to do so. Although key panel decisions are not a controlling authority and are technically only convincing authority, most judges choose to obey them.

John P. Kamin is an employee compensation attorney and partner based in Bradford & Barthel’s Woodland Hills office. He is the former legal editor of WorkCompCentral. This entry from Bradford & Barthel’s blog is published with permission.