Happy Wednesday, dear readers!
Your humble blogger brings you a report from the WCAB which yesterday, January 12, 2021, issued a “significant panel decision.” This is not an en banc decision, of course, which means it is not necessarily binding, but it is intended to provide guidance to the various WCJs throughout the state.
The decision? Gao v. Chevron Corporation, and it has everything to do with testifying in person at trial. Applicant attended trial in person on her psyche claim back in March of 2020. However, due to time constraints, the trial was continued to June 9, 2020 (oh how young we were back in March of 2020, that we thought we’d still have trials in person just 6 months later). Well, the obvious happened and in-person appearances at the WCAB were suspended (and still are).
Defendant wanted to continue the trial, including presenting its rebuttal witnesses, in person and not via remote testimony. Applicant, however, wanted to proceed with a trial via remote methods. The facts reflect applicant resided in Ontario, Canada, and probably preferred not to have to fly during a pandemic.
The Trial Judge sustained defendant’s objection and continued the trial until testimony could continue in person. Part of the reasoning of the trial judge’s grant of a continuance turned on defendant’s due process rights: applicant had testified in person and defendant wanted to present its witnesses in person as well.
Applicant sought removal of the order continuing the trial, and the WCAB agreed to review the matter.
Initially confirming that both parties retain due process rights in workers’ compensation proceedings, which are, essentially, “notice and the right to be heard,” the WCAB also highlighted the workers’ compensation’s system obligation to provide expeditious and inexpensive justice in all cases.
Accordingly, the WCAB ruled that it was inappropriate to continue the matter until in-person testimony could be resumed, but that, instead, the WCAB must provide for due process under the circumstances of the moment. The WCAB also acknowledged that cases are always unique (as much as they might all seem the same to long-term practitioners) and that “it would … be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.” The WCAB would also place the burden on the party requesting the in-person trial to show good cause.
So, while not a hard and fast rule, it appears the WCAB seems to be inclined to put the “default” setting to remote trials, while still allowing the party objecting to a remote trail to plead its case and show good cause.
What might constitute good cause? Perhaps credibility issues – if one of the parties has serious doubts about the credibility of one of the witnesses, the need for the Judge to observe the demeanor of the witness to make a determination as to credibility. It’s hard to sneak peaks at a cheat-sheet when physically on the witness seat, while one could do just that while on a video-conference. We also have the possibility of a witness being coached by the attorney via text messaging or instant messaging.
The same reasoning should apply for a deposition – storming out of a deposition because you don’t want to answer the hard questions makes for a different record than pretending to have “connectivity issues” and stopping the deposition that way. “Aw shucks, the internet is cutting out, so no one is to blame, right?”
The defense in this case may proceed with articulating in detail why video conferencing is inadequate for the Judge to weight credibility (if that is, in fact, the basis of the objection to a trial over video conferencing), and plead its case for in-person trials.
But, hypothetically speaking… what happens if the trial Judge says that he or she cannot adequately assess credibility of a witness via tele-conferencing? Would that be good cause to continue the trial? I would think so, and whoever is hurt by the delay will have just one more reason to curse COVID19.