California Hearings and Electronic Testimony: The Cost of Convenience

In Simmons v. Just Wingin’ It, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order requiring an out-of-state claims adjuster who administered the applicant’s temporary disability benefits in connection with his 9/22/2014 industrial right foot and ankle injury to appear physically rather than electronically at trial, when the defendant argued that requiring the claims adjuster to travel from Illinois to California to testify in person would cause substantial prejudice where alternative means of obtaining testimony, such as courtcall or video conferencing, existed, and the WCAB, noting that Code of Civil Procedure § 2025.310(a) and California Rules of Court, rule 3.1010(a)-(b) expressly allow for taking of depositions electronically, found that there was no reason not to use the alternative means to obtain the claims adjuster’s testimony in this case.

Commentary:

Simmons dealt with a WCJ ordering an out-of-state claims adjuster to appear at trial. Defendant’s argument was straight-forward: Where there are alternative means of obtaining testimony, it was prejudicial for the WCJ to order the witness to be physically present. In fact, defendant’s petition specifically cited CourtCall or video conferencing as available “alternative means” of obtaining the testimony.

Somewhat quizzically, the panel of commissioners pointed to the California Code of Civil Procedure and California Rules of Court sections applicable to depositions that allow witnesses to appear by remote electronic means as the justification for not requiring the out-of-state claims adjuster to be physically present at trial.

However, the Labor Code specifically confers on the WCJ the power to subpoena witnesses for their attendance at hearings (Labor Code Section 130). Moreover, any witness compelled to testify by order of the WCAB shall be entitled to the same fees and mileage provided by law in civil cases. In some instances, those fees and mileage are payable by the party who is requesting the witness testify, while in others, the WCAB itself can be held responsible for the costs (Labor Code Section 131). The salient fact here was that the WCJ’s order for this claims adjuster to be present was clearly within his authority and discretion.

Recently, a panel of commissioners with the WCAB addressed the question of whether a Panel Qualified Medical Evaluator (PQME) should be allowed to perform the medical-legal evaluation of an injured worker remotely. A concern at that time was raised that the PQME would not actually perform the physical examination of the injured worker. Another concern was raised that something would be lost in the process if the physician did not have the opportunity to actually look in the injured worker eyes while trying to understand the true nature and extent of the problem the worker was presenting the PQME with.

Similarly, if the WCAB is going to allow witnesses to testify “remotely” anytime it is more convenient, there may be a cost to the process which far exceeds the cost imposed on the individual witness. The WCJ’s ability  to observe in person the demeanor of the witnesses and weigh their statements in connection with their manner on the witness stand has been recognized as one of the most important functions of the WCJ (Garza v. Workers' Comp. Appeals Bd., 3 Cal. 3d 312; 35 Cal. Comp. Cases 500).

In conclusion, as a society, we are inundated with technological advances. While many of these advances may prove helpful in the appropriate administration of justice, when questions like the question in Simmons arise, it is imperative that we stop and consider the costs of adopting or allowing the technologically available convenience.

Read the Simmons noteworthy panel decision.

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