WCAB Clarifies Oral Request Sufficient for Remote Witness Testimony

Effective Jan. 1, 2022, the Workers' Compensation Appeals Board (WCAB) adopted regulations regarding electronic hearings. Remote hearings initially were used during the COVID-19 pandemic, but because such proceedings increased access to the workers' compensation system for parties, their representatives and the public, the WCAB believed that making the changes permanent would benefit the public and the administration of the workers' compensation adjudicatory system.

California Code of Regulations, Title 8, § 10745 states that the WCAB "may order that hearings be conducted electronically." CCR 10750 states that a notice of hearing must include "whether the hearing will be conducted electronically and how to access any electronic hearing."

Under CCR 10816, if an in-person trial is scheduled and someone intends to appear electronically, the party may file a petition showing good cause for doing so, per CCR 10510. CCR 10817(a) establishes the procedure for parties wishing to have a witness testify electronically, stating that "... a petition showing good cause shall be filed... before the hearing." Generally, this rule has been interpreted to require a formal, written petition. A new en banc decision from the WCAB, however, provides significant clarification, prioritizing due process and substance over procedural formality.

On Aug. 12, 2025, the WCAB issued its decision in Perez v. Chicago Dogs, holding that a formal written petition is not the exclusive method for requesting electronic witness testimony. The WCAB concluded that an oral request made on the record at the beginning of a hearing is sufficient to satisfy the rule's petition requirement, provided that opposing parties have an opportunity to respond.

FACTS OF THE CASE

In Perez, the applicant, a professional baseball player, alleged a cumulative trauma injury against multiple teams, including the Chicago Dogs, an out-of-state entity. That team disputed that the WCAB had personal jurisdiction over it in California. The matter was set for trial on that threshold issue.

At trial, the defendant sought to have its witness, the team's chief operating officer, testify remotely by telephone to rebut the applicant's claims of contacts within California. The defendant also attempted to submit an affidavit from the witness. The workers' compensation judge (WCJ) denied the request for the witness to testify electronically, reasoning that the defendant had failed to file a formal petition in advance showing good cause, as required by CCR 10817(a). The WCJ also excluded the witness' affidavit.

Consequently, the WCJ found that the applicant's testimony regarding his contacts with the team in California to be unrebutted, and ruled that the WCAB had personal jurisdiction over the Chicago Dogs. The defendant filed a petition for reconsideration, arguing that the denial of its request to have its witness testify electronically was a violation of its due process rights and prevented a determination based on a complete record.

WCAB'S DECISION

The WCAB granted the defendant's petition for reconsideration to address the proper interpretation and application of CCR 10817(a). In its en banc decision, the WCAB emphasized several guiding principles: the constitutional mandate to ensure substantial justice, the right of all parties to due process and a fair hearing, and the long-established policy of liberally construing pleadings in workers' compensation proceedings. The WCAB explained that its rules must be interpreted in light of California’s public policy favoring adjudication on the merits over technical sufficiency of pleadings.

The WCAB stated:

In considering the application of WCAB Rule 10817(a), we preliminarily conclude that a request on the record for electronic witness testimony at the beginning of the hearing, with an opportunity for any party to respond, satisfies the petition requirement and is sufficient to adjudicate the issue of electronic testimony. Moreover, we preliminarily conclude that the due process right to a fair hearing and a determination based on the merits is good cause to allow the electronic testimony of the witness. Therefore, when a witness is unable to appear in person, as a matter of due process, a request to testify electronically should be readily permitted.

The WCAB granted the defendant’s petition for reconsideration, and ordered that a final decision after reconsideration was deferred pending further review of the merits of the case and further consideration of the entire record in light of the applicable statutory and decisional law.

ANALYSIS

The en banc decision in Perez provides critical guidance for practitioners and WCJs, clarifying that the procedural requirements for witness testimony should not be so rigidly applied as to undermine a party's fundamental due process rights. By allowing an oral motion at the start of a hearing to suffice, the WCAB is promoting efficiency and ensuring that cases are decided on evidence, not procedural technicalities.

This ruling does not eliminate the requirement to show good cause for remote testimony; it broadens the acceptable methods for making the request. The decision firmly establishes that a party’s inability to present key evidence because a witness cannot physically appear at trial is, in itself, a matter of due process and constitutes good cause. A party seeking to present a witness electronically should still be prepared to explain why the witness cannot appear in person.

Ultimately, Perez reinforces the core principle that the workers' compensation system was designed to be accessible and to favor substance over form. The decision ensures that procedural rules serve their intended purpose of facilitating fair hearings, not creating procedural traps that prevent the presentation of evidence and a full adjudication on the merits. Practitioners can now be confident that an oral motion at trial is a valid method for requesting that a witness be allowed to testify electronically.

For further discussion on remote trials and remote witness testimony, see "Sullivan on Comp" Section 16.3 Trial — Proceeding and Submission.