It is not often that your humble blogger is in agreement with the position of an applicant, but your humble blogger feels compelled to report to you the results in the case of Alvarez v. Bay Collision Repair.

Applicant allegedly sustained an injury to his left shoulder for an apparently uninsured employer.  His employment was terminated post-injury, and he was apparently deported from the United States, and so he couldn’t appear for his trial.  The WCJ issued a ruling that applicant could appear for his trial and testify via Skype or other teleconference means (at his own expense).

The WCJ reasoned that under California Evidence Code section 240, a witness is “unavailable as a witness” if a person is absent from the hearing and the court is unable to compel his or her attendance by its process.   Subsection (b) negates the “unavailable” status if the availability is procured by the wrongdoing of the proponent of the testimony “for the purpose of preventing the declarant from attending or testifying.”  However, your humble blogger, with all his years of studying human nature, somehow doubts that Mr. Alvarez had himself deported from the United States for the purpose of avoiding testifying at his workers’ compensation trial.

Accordingly, the WCJ found that applicant could appear at trial and continue to prosecute his case despite being out of the country and being unable to re-enter.

Labor Code section 1171.5 very clearly states that all the protections of the Labor Code and the Workers’ Compensation system are to be extended to citizens and aliens alike, whether present in the country legally or illegally.  Generally speaking, this is only limited by federal law with respect to reinstatement and similar remedies.

This makes sense, no?  After all, there are employers in this state that knowingly hire illegal aliens, then come to the Court with unclean hands playing the victim.

Now, your humble blogger would submit to you, however, that this decision, which the WCAB affirmed and the Court of Appeal declined to review, should go even farther.  A favorite tactic of some applicant attorneys is to claim “bad faith” and subpoena an adjuster on a file.  Typically, neither deposition nor trial testimony leads to any sanction-worthy conduct, but a day out of the office for an adjuster is absolutely brutal for meeting other deadlines.

Preparation, travel there, testimony, travel back… that can kill half a day if not a full day.  Your humble blogger would submit to you that claims examiners should likewise be able to testify through teleconferencing.  An applicant attorney might not see it worthwhile when he or she has to waste an hour of his or her own time for every hour of the claims examiner.