COVID-19: 5 Solutions For Remote Testimony Before The WCAB

Agent 86 would be proud. We’ve come a long way in just a couple of months.

While COVID-19 has brought the California Superior Courts to a near standstill since March of 2020, the Workers Compensation system has continued to function remarkably well under the circumstances.

In fact, within just days of the state of emergency Governor Newsom declared, the Department of Industrial Relations arranged for attorneys to appear at the WCAB by telephone at the Appeals Board.

The ongoing challenge is selecting the best method in each case to take witness testimony.

Remote Witness Testimony Is Already Permitted

April 6, 2020, the California Judicial Council announced measures to allow electronic depositions where the deponent and the court reporter are not in the same room. Labor Code Section 5710 makes this applicable to Workers Compensation proceedings.

On April 13, 2020, the WCAB began conducting Expedited Hearings telephonically.

Starting May 4, 2020, the WCAB began to hear all Case-in-Chief trials telephonically.

Long before the COVID-19 pandemic, the WCAB has been utilizing remote viewing technology for witness testimony (See https://thomasfmartin.com/remote-witness-testimony-is-here/ ).

Electronic Methods To Take Witness Testimony

While the Workers Compensation community awaits the re-opening of the Appeals Board local offices, remote trial testimony methods are being determined on a case by case basis.

1) Telephone

Early reports about testimony by telephone are mostly positive, although navigating the exhibits has been a challenge.

2) FaceTime

Conducting a trial using FaceTime on an iPhone or iPad has been deemed appropriate by the Appeals Board. (Vargas v Darnell Becker 2017 Cal. Wrk. Comp. P.D LEXIS 276 ) Here is a tutorial:

https://www.theverge.com/2020/4/7/21200313/group-facetime-how-to-call-video-chat-apple-iphone-messages

3) Skype

An Applicant was permitted to testify at trial via Skype. ( Creffitta, Inc. et. al., v. W.C.A.B. (Alvarez) (2015) 80 Cal.Comp.Cases 579 (Writ Denied) Here is a tutorial: https://mashable.com/2014/07/09/skype-for-beginners/

4) Video Conferencing

The Appeals Board held that an insurance adjuster did not need to appear physically for a trial where alternative electronic means were available. (Simmons v. Just Wingin’ It, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS —) The Social Security system has been using video conferencing technology for trials for years. Here is some information: https://www.ssa.gov/appeals/pubs/70-067.pdf

5) Deposition Transcript

Superior Courts permit the admission of a deposition transcript if “exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.” (CCP Section 2025.620(c)(3).

In any event, the WCAB may take testimony at trial in any manner it deems best calculated to determine the rights of the parties. (Labor Code 5708 and 5709). Therefore, the WCAB has accepted deposition transcripts in place of live testimony at trial.

Plan Ahead

Aside from telephone testimony, if you anticipate that remote viewing of the witness is necessary, notify opposing counsel and the court as soon as possible. For example, if credibility is at issue, confer with opposing counsel about the optimal type of remote technology that can be used. Since ex parte communication with the Judge is not permitted, consider alerting the Trial Judge in advance why remote viewing technology may be ideal in a particular case.

The Constitutional Mandate

Section 4 of Article XIV of the California Constitution requires that the administration of the workers’ compensation system accomplish “substantial justice in all cases expeditiously, inexpensively, and without the encumbrance of any character, all of which matters are expressly declared to be the social public policy of this state.”

California has one of the strictest stay-at-home orders in the country to fight the spread of COVID-19. It could be weeks, or even months, before the Appeals Board will have a plan (and resources) to resume full operations, including PPE, signage, management of social distancing, access to sanitizer, and routine disinfection protocols.

 Until then, the use of remote viewing technology to balance personal safety with the interests of prompt justice is essential because it will assist in avoiding a docket backlog and the frictional costs associated with delay.