Remote Witness Testimony Is Here!

Surprise! Remote testimony at the WCAB isn’t breaking news. It’s been around for decades.

For example, an injured worker who lived outside of California was unable to fly or drive to the Santa Ana WCAB due to industrial COPD. Concerned that the applicant was unable to obtain the benefits, I filed a petition before Judge Richard Lee (retired) for an order that the defendant arrange and pay for a video link between two “video centers” – one near the applicant’s home, and here in Orange County. Judge Lee granted the Petition, and not surprisingly, the issues in the case got resolved right after the order. That was in 1994.

Today, technology makes remote testimony as easy as reaching for a cell phone, and the WCAB has embraced new ways to swear in and observe witness testimony remotely.

In Vargas vs. Becker 2017 Cal. Wrk. Comp. PD LEXIS 276, the applicant lived in Mexico and was unable to attend the trial. The applicant instead testified at the trial through a Spanish interpreter by iPhone, using the FaceTime application.

The defendant in Vargas unsuccessfully challenged the cell phone testimony on several grounds.

First, the defendant contended that because the oath was administered remotely, it was defective. However, the WCAB found that there was no violation of Evidence Code 710 because the applicant “took the oath in the form provided by law.”

Second, the Board determined that since the defendant “had an opportunity to probe the truth of the applicant’s testimony by subjecting him to cross-examination” due process standards were met (citing Ogden Entertainment Services vs. WCAB (Von Ritzhoff) 233 Cal. App. 4th 970; 80 CCC 1). 

Third, and significantly, the Board held that the WCJ’s admission of the applicant’s testimony by cell phone was proper under Labor Code sections 5708 and 5709.

Regarding section 5708, the Board stated that “hearings before the WCJ shall not be bound by the common law or statutory rules of evidence and procedure, but may inquiry into the matter, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties.”

Similarly, the Board held that section 5709 provides that “no informality in any proceeding or in any manner of taking testimony shall invalidate any order, decision, award, or rule.” The Board went on to state the section permitted admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure”.

Experience tells us that when parties can’t resolve issues, the prospect of a prompt trial and decision – with witness testimony – encourages both sides to “get serious.”

Continuances to complete a trial – perhaps over months – will not only delay benefit resolution, but also create a docket backlog, drive up frictional costs, and interfere with the prompt administration of benefits.

Due to the COVID 19 pandemic, it is unclear when witnesses will be able to testify in the courtroom. Utilizing remote testimony technology is – and long has been – the solution to keeping the system moving.