California: WCAB Allows I-Phone Testimony for Deported Injured Worker

By LexisNexis Workers' Compensation Staff

The Vargas v. Darrell Becker, 2017 Cal. Wrk. Comp. P.D. LEXIS 276 panel decision is remarkable for a number of reasons. Many will argue that it is significant because a Workers’ Compensation Administrative Law Judge (WCALJ) allowed a deported illegal immigrant to testify in his California Worker’s Compensation trial by way of Facetime on a four inch I-Phone. There is another view, however, that would argue that Vargas is, in fact, most notable as it reflects the WCAB’s willingness to consider what can best described as “non-traditional” evidence so as to obtain the correct result in a particular case.

Indeed, while immigration is certainly a “hot-button” topic in the current political climate, this case truly reveals a WCALJ as well as a panel of commissioners that were willing to set politics aside and try to get to the actual facts involved with a case so as to accomplish “substantial justice” (California Constitution, Article XIV, Section 4).  In Vargas, both the WCALJ and panel of commissioners determined that the facts of the case were more important than whether the facts were obtained from a witness deported to a foreign country or were provided by way of an I-Phone with a four inch screen.

As pointed out by the commissioners, the question in Vargas was not whether an “unavailable witness” could testify remotely. Alvarez v. Crefitta, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 449, citing Evidence Code Section 240, had already concluded that such remote testimony was acceptable. Moreover, as it related to defendant’s argument that there was something improper about witnesses testifying by way of a cellphone, the panel also pointed out that WCALJ’s are not bound by the statutory rules of evidence and procedure, but may make inquiry in the manner best deemed to ascertain the substantial rights of the parties.

The underlying WCALJ decision as well as the panel decision in Vargas are thoughtful and considered. They both ultimately reflect the WCAB’s willingness to take an open-minded view of a case, a view that was unwilling to be distracted by the method or manner by which the evidence was being received but rather was focused on the fundamental rights of the parties and the actual evidence involved.

In conclusion, there have been several cases in recent months where the WCAB has been willing to accept evidence that is best described as “non-traditional”. Whether the evidence was received via a new, or relatively new, technology such as Skype, or as in Vargas, by way of an I-Phone, the WCAB has been willing to consider evidence so long as the rights of the parties are protected and there is not some other legal block to its consideration. Practitioners would be well advised to keep these recent WCAB decisions in mind when initially evaluating a case or ultimately deciding how to best present evidence at trial.

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