Because of the COVID-19 pandemic, the WCAB district offices have stopped conducting in-person trials since March 16, 2020. Beginning May 4, 2020, the WCAB began hearing trials on the cases-in-chief via individually assigned judges’ conference lines.

On May 7, 2020, Governor Newsom issued Executive Order N-63-20 which suspended the requirement for in-person testimony and allowed remote testimony provided all parties are able to hear the witness and see the documents. Effective Aug. 17, 2020, the WCAB district offices provided a video option for trial.

However, parties have due process rights in the workers’ compensation system. The WCJ’s credibility findings are generally given great weight because of WCJ’s “opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand.”[1] Therefore, some parties asserted that due process would be violated unless a trial proceeded with in-person testimony.

On Jan. 12, 2021, in Gao v. Chevron Corporation, the WCAB issued a significant panel decision holding that in light of the COVID-19 pandemic and Governor Gavin Newsom’s Executive Order N-63-20, workers’ compensation trials should proceed remotely unless there is a clear reason why the facts of a specific case require a continuance.

Facts of the Case

In Gao, the matter proceeded to trial on March 10, 2020. The applicant provided in-person testimony, but the trial was continued to June 9, 2020, with in-person testimony contemplated from several defense witnesses. Thereafter, the WCAB stopped conducting in-person trials.

As the next trial approached, applicant wanted to proceed to trial via remote testimony, while defendant requested a continuance until in-person testimony could be elicited from its three rebuttal witnesses. On Aug. 20, 2020, the WCJ issued a letter to the parties stating it was possible to conduct a video trial but asking whether either party objected to a video trial. On Aug. 24, 2020, the defendant filed an objection stating it was opposed to a trial via any method except in-person testimony and sought a continuance until in-person testimony could be safely provided.

On Aug. 25, 2020, without first receiving a response from applicant, the WCJ issued an order continuing the trial. The WCJ believed due process required allowing in-person testimony from the defense witnesses, because applicant had previously given in-person testimony. The matter was continued until “such time as in-person testimony can again be taken.”

The WCAB’s Decision

The WCAB rescinded the WCJ’s decision. It first explained the WCJ issued an order continuing the trial a day after receiving an objection from the defendant. It did not believe this was consistent with due process, because applicant should have been given a chance to respond to the defendant’s objection before the WCJ decided the issue. Therefore, the matter was returned to the WCJ to set a remote hearing so that the parties could be heard on the issue.

The WCAB then addressed the WCJ’s assertion that due process required a continuance because applicant testified in-person, and therefore defendant’s witnesses should be given the same opportunity. It stated, “Although we allow that it might offend due process to arbitrarily prohibit one party’s witnesses from providing in-person testimony while allowing it from the other party, that was not the situation here. The WCAB’s transition to remote hearings is not based upon some bureaucratic whimsy, but rather upon the advent of a global pandemic that has cost the lives of hundreds of thousands, and caused fundamental shifts in the behavior of most of the world’s population.” It added, “Executive Order N-63-20 represents the Governor’s best judgment as to how to strike a fair balance between the due process rights of participants in hearings, the necessity of protecting the public from real and significant harm, and the state’s responsibilities under the California Constitution to provide efficient, timely resolution of disputes in order to secure benefits for eligible injured workers.”

The WCAB found that it would be improper to issue a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony and that each case must be resolved according to its own particular circumstances. It concluded, however, that “the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance.” Furthermore, it held that the burden of seeking a continuance should fall on the party seeking it.

Analysis of the Decision

Although Gao has been designated a significant panel decision, it is not binding on other WCAB panels or WCJs. But per CCR 10305(r), significant panel decisions are designated by all members of the WCAB as being of significant interest and importance to the workers’ compensation community. There is no question that Gao represents the WCAB’s position on the issue and will be followed by other WCAB panels and WCJs. Thus, workers’ compensation trials will proceed with remote testimony, unless a party can present a clear reason why a claim should be continued for in-person testimony.

The WCAB has already held that a WCJ could determine witness credibility during a telephonic trial, based on the inflection and tone of spoken testimony.[2] Therefore, the WCJ’s ability to determine the credibility of witnesses alone is unlikely to be sufficient for a continuance.

Ultimately, in Gao, the WCAB recognized that COVID-19 pandemic is an ongoing and serious threat to public safety. It specifically noted the requirement for remote trials is not arbitrary, but it is intended to protect the parties, court employees, and the community as a whole. The COVID-19 pandemic has already gone on for much too long, and it is unknown when life will return to normal. However, the COVID-19 pandemic should also not be used to delay the administration of the law. Therefore, while remote trials may be inconvenient, they are necessary under the current circumstances. A remote trial does not violate due process rights, unless a party can present a clear reason based on the facts of the case why it does.

  1. Garza v. Workers’ Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319.
  2. Wall v. State of California, In Home Support Service, 2020 Cal. Wrk. Comp. P.D. LEXIS 327.