State to permit electronic testimony in comp hearings

Because an evidentiary record is required for appellate review, and to safeguard due process, a request for electronic testimony must not be denied without an opportunity to be heard, California’s Workers’ Compensation Appeals Board said Thursday in an en banc decision regarding a minor league baseball player with cumulative trauma injuries.

The board said it “preliminarily” concluded 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.” The ruling is a binding precedent on all appeals board panels and all workers compensation administrative judges, the board said.

The board concluded 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.”

As documented in Tyson Perez v. Chicago Dogs et al., Tyson Perez filed a cumulative trauma claim for physical and psychiatric injuries he said he sustained as a professional baseball player for the Houston Astros and the Chicago Dogs, a club that is part of the American Association of Professional Baseball.

The Chicago Dogs and their insurer, Liberty Mutual Insurance Co., filed a motion to adjudicate whether the WCAB has jurisdiction over the team.

At trial, the Houston Astros objected to a witness statement offered by Chicago Dogs COO Trish Zuro because they had not been served before the close of discovery, and admitting it into evidence would deprive the parties of due justice because they could not cross-examine the witness. The judge denied the Chicago Dogs’ request to allow Ms. Zuro to testify by telephone.

The judge said WCAB rules require filing a good cause petition before a party can testify remotely, and the parties did not stipulate that Ms. Zuro could testify remotely. The Chicago Dogs argued that her testimony was essential to establish the extent and or lack of contacts the team had with California.

The WCAB said state rules require filing a petition showing good cause if a witness intends to testify electronically.

The board said rules provide “considerable latitude in accepting nonstandard pleadings” and specifies that “pleadings are deemed amended to conform to the stipulations agreed to by the parties on the record or may be amended by the WCAB to conform to proof.”

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