Everyone has been focused on Governor Newsom’s May 6, 2020 Executive Order creating a temporary rebuttable presumption for AOE/COE and temporary disability benefits in COVID-19 cases. Rightfully so. But while all eyes were on the COVID-19 presumption many may have missed another Executive Order that came out the very next day.
On May 7, 2020, Governor Newsom issued Executive Order N-63-20. Its impact is temporary and will last as long as the California-declared state of emergency, or until lifted by the Governor. The majority of this EO deals with extending some deadlines that have been impacted by the COVID-19 pandemic and other public health concerns. However, buried in the May 8, 2020 EO in paragraph 11 is an order that will impact hearings and trials at the WCAB, particularly where witnesses are required. This EO suspends the rules requiring a witness to be physically present at a hearing if ALL of the following are satisfied:
- a) Each hearing participant has the opportunity to participate in and 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.
This is going to have a dramatic impact on the way in which trials at the WCAB are conducted, if they are conducted at all. While the EO allows for hearings to be conducted “by telephone, television, or other electronic means”, it requires that each participant be able to hear and observe exhibits.
How will this play out in practice? The short answer is that most trials will be continued and parties are well advised to try to resolve cases informally where it makes sense.
The WCAB is already conducting hearings other than trials by conference call. It makes sense that this system will be used for trials as it is already in place and does not require any new equipment, software, IT support, or training. This means that the Judge and the respective counsel will be left to assess witness credibility solely by voice, which is a very poor substitute to direct observation of a witness in a court room. Ordinarily, a good attorney or judge will watch closely for visual cues such as whether the witness maintains eye contact, whether they are referring to notes, or even whether someone is whispering an answer in their ear. The trial Judge will be unable to gauge pain behavior, or lack thereof, or even see if they are using any durable medical equipment like a cane, brace, or sling. How are the Judge and other parties to even ensure that the witness is who they say they are? Without video, fraud is definitely a concern. And, as every litigator will tell you, there is a certain gravitas when a witness actually takes the witness stand and possibly has to face either the employer or the Applicant when telling their story. That will be lost. Also lost will be the ability to ensure that witnesses who have not yet testified are excluded while another is testifying. Over the phone, who knows who else is listening in?
Of course, there was a recent case where an out of the county witness was allowed to testify by FaceTime on an iPhone. But, in that case, all the other case participants were in the courtroom. This would be far more difficult to do with the respective attorneys, the Judge, and the court reporter all scattered to different locations.
And, what of the requirement that a participant be able to observe the exhibits? This would include a potentially expansive list of people: the direct parties, witnesses, the Judge, and possibly even the court reporter and interpreter, if applicable. We have already seen at least one judge require that that witnesses must be able to see and review all exhibits prior to giving testimony and that if they do not have the ability to do that, the trial will be continued.
The requirement that members of the public be allowed to observe makes sense for civil and criminal trials. But, it is indeed the rare workers’ compensation trial that has an audience of the general public or press. This section should not pose much of a problem at the WCAB.
More interesting is the requirement that the Americans with Disabilities Act and Unruh Civil Rights Act be satisfied. How is the presiding judge to ensure this in all cases? Suppose a participant is hearing impaired. Does the use of a telephonic captioning device satisfy the requirement that they be able to hear the proceeding? How can the parties effectively utilize a sign language interpreter over the phone? Or, if the participant is visually impaired, how does the presiding judge ensure that they can observe exhibits? If the WCAB cannot accommodate those with hearing or vision impairments, or possibly other impairments, are they being deprived of due process on the basis of a disability?
While some trials will need to go forward out of necessity, we can expect to see the majority of trials being continued into the indefinite future. That, or the WCAB could utilize a video-conferencing platform with appropriate security measures in place. Of course, that means that we’d all have to hope that our going-to-court wardrobe still fits after these months of shelter in place.
A copy of this EO can be found here: https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-on-extending-deadlines-impacted-by-covid-19/
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