Randy H. Pollak, Esq.
Thousand Oaks, California
Notice and an opportunity to be heard are vital hallmarks of due process. In the context of litigation, throughout the history of the United States, these cherished rights, and values, have classically included an opportunity to cross examine witnesses, and, in normal times (such as times without a pandemic), to do so in person. The intrinsic value of such an in-person opportunity is not easily measured, but typically, both litigants and the courts have identified that the ability to assess the credibility of witnesses by seeing them face to face is an essential benefit to reaching a just result in the case.
All that sounds great, but in the time of COVID-19, there are limits. The recent Significant Panel Decision in Limin Goa v. Chevron Corp. (ADJ 10024232) demonstrates that pointedly when addressing the question of the due process right of a party to insist on an in-person trial in a workers’ compensation case. Specifically, the WCAB stated, “Due process is the process that is due under the circumstances as we find them, not as we might wish them to be.” In that decision, the WCAB goes on to provide guidance that the default standard, at least for the foreseeable future, is a virtual trial. This article reviews that decision and provides a reasonable estimate of its application in other processes in the workers’ compensation system, including but not limited to QME examinations.
The Goa Decision
In Goa, the applicant first provided in-person testimony on March 10, 2020, and was subject to direct and cross examination. The trial wasn’t completed in one session, so it was continued to June 9, 2020. By that time, the COVID-19 pandemic was in full swing and all WCAB district offices were doing only remote appearances by phone. Moreover, on May 7, 2020, Governor Gavin Newsom issued Executive Order N-63-20, providing that:
Any statute or regulation that permits a party or witness to participate in a hearing in person, a member of the public to be physically present at the place where a presiding officer conducts a hearing, or a party to object to a presiding officer conducting all or part of a hearing by telephone, television, or other electronic means, is suspended….
Governor Newsom’s Order included some specific requirements for conducting electronic hearings, stated as:
a) Each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits;
b) A member of the public who is otherwise entitled to observe the hearing may observe the hearing using electronic means; and
c) The presiding officer satisfies all requirements of the Americans with Disabilities Act and Unruh Civil Rights Act.
With intervening developments, the trial was continued to September 1, 2020. The parties were in a dispute over whether the trial could be heard remotely.
On August 20, 2020, the judge in the case advised the parties by letter that the trial could be done by video and asked the parties whether there was any objection. On August 24, 2020, the defendant objected and requested a continuance until it could be done in person. The next day, and before the applicant, who was living in Canada and wanted a trial over the phone, had responded, the WCJ ordered the matter continued (seemingly indefinitely) until an in-person trial could be completed, citing the defendant’s due process rights to have their witnesses testify in person. The applicant then filed their Petition for Removal.
The threshold requirement for a removal petition, before the WCAB is supposed to review the merits, is that the petitioner demonstrate that significant prejudice or irreparable harm will result if removal is not granted. Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (See CCR § 10955(a).) The decision itself does not provide a specific analysis on this beyond noting the logistical situation had evolved for the WCJ, by the time of the WCAB’s decision, such that virtual trials by video had become technically possible. Moreover, the requirements of removal presumably were met with the WCAB’s later finding, in the decision, that the applicant’s not getting a chance to object to the defendant’s request for a continuance before the WCJ issued their order was a denial of due process.
Regarding the substantive issue presented, the WCAB in Goa provided in its analysis of the due process question both a review of the concept in general and of its application to the workers’ compensation arena, including the right to “call and cross-examine witnesses.” Significantly, the WCAB noted the essential elements with:
The “essence of due process is simply notice and the opportunity to be heard.”…Determining an issue without giving the parties notice and an opportunity to be heard violates the parties’ rights to due process. [Citations.]
Moreover, what that opportunity to be heard looks like depends on “the nature of the case” and is “a flexible concept which depends upon the circumstances and a balancing of various factors….” [citations.]
Finally, the WCAB reminds the workers’ compensation community that “the object of the workers’ compensation system is to ‘accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character’ (Cal. Const., art. XIV, § 4)” and “ ‘[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule[.]’ (Cal. Lab. Code, §5709.)”
In applying these parameters to the immediate issue in the case, the WCAB has reversed the WCJ’s order of August 25, 2020, noting that the applicant was not given an opportunity to be heard regarding whether the trial could be heard virtually.
The story doesn’t end there. The WCAB in Goa also provides some specific guidance to the parties, and the workers’ compensation community, about the challenges and realities of usage of remote hearings. In pointed terms, they note:
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.
Due process is the process that is due under the circumstances as we find them, not as we might wish them to be.
With this new reality, they also provide this guidance to practitioners:
[I]n consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, 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.
Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.
In the Goa case, the burden would be on the defendant regarding their objections. But if the roles were reversed in a future case, with the applicant objecting to a remote trial, it’s entirely expected that that burden would switch to the applicant if they were otherwise objecting.
The WCAB is careful to note this is not a “blanket” rule; each case should be resolved according to its unique circumstance. Their statement about the default position, though, is expected to be persuasive in resolving legal disputes going forward.
The Goa decision is a Significant Panel Decision but is not binding authority. Their purpose is to add to the body of binding appellate court and en banc decisions. The WCAB will designate a panel decision as significant if it (1) involves an issue of general interest to the workers’ compensation community, and (2) all WCAB members review the decision and agree that it is significant (Figueroa v. B.C. Doering Co. (2013) 78 Cal.Comp.Cases 439, 440 [WCAB en banc]). The decision lays out a clear picture of why a balance must be struck between the parties’ desire for due process in its classic form and the reality of the pandemic. With that, we can expect Goa will provide guidance in other disputes to come.
For example, as of the time of this writing, the DWC has implemented emergency regulation 46.2, regarding telemedicine AME, QME, and other medical-legal evaluations. Specifically, with some requirements, it provides:
A QME or AME may complete a medical-legal evaluation through telehealth when a physical examination is not necessary….
One of the requirements is agreement in writing, by both parties, the medical-legal evaluator, and the injured worker, to the telehealth evaluation. But what if the parties do not agree? Must the evaluation be continued in perpetuity until the pandemic is over? Or, is the telehealth only evaluation a basis to cancel the appointment and request a replacement panel? The remedy is outlined as:
Agreement to the telehealth evaluation cannot be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied under this section, they may file an objection with the Workers’ Compensation Appeals Board, along with a Declaration of Readiness to Proceed to set the matter for a hearing….
How, then, is a WCJ to address whether such an objection is reasonable? Or for that matter, a request to continue the appointment to a new date? Putting aside issues as to whether a virtual QME evaluation will produce a substantial evidence report in any given case, what about prospective objections based on due process—that the worker is entitled to an in-person evaluation, or: the reverse, that the defendant is insisting on an in-person evaluation as a matter of due process? Has the Goa case provided guidance on that? (For example, the default position in Goa is that remote evaluations should be done absent “some clear reason why the facts of a specific case require a continuance.”)
The COVID-19 pandemic has caused universal adjustments to our daily lives and, in the context of workers’ compensation practice and according to the Goa decision, our expectations on what due process looks like. Going forward, this author estimates that the observations and guidance the WCAB provided in the Goa case will lend itself to the handling of similar disputes, such as requests for in-person telehealth QME and AME evaluations.