Partner, Robert Willyard has provided a brief review of some panel decisions released over the past week which may be impactful for the day-to-day claims handling of a California Workers’ Compensation case. Below is a summary and some of his thoughts related to some relevant decisions from this past week.
Tyson Perez v. Chicago Dogs et al. (EN BANC DECISION -ANA ADJ16597333)
Issue = When and how a party can offer electronic (remote) testimony from a non-appearing witness.
Preliminary Decision (Reconsideration granted, and WCAB is still studying the case) = Per 8 CCR 10817, a request for electronic witness testimony may be made up to the beginning of a hearing; i.e., an oral request at the beginning of a hearing satisfies the written petition requirement of 8 CCR 10817 despite its plain language for a written petition per 10510. In addition, the concept of due process of law is “good cause” enough to allow electronic testimony of a witness. So, when a witness is unable to appear as a witness, as a matter of due process, the WCAB opined that request to testify electronically should readily be permitted.
Note: 8 CCR 10817(a) states “If a witness intends to testify electronically, a petition showing good cause shall be filed pursuant to rule 10510 by the witness or party offering the witness’ testimony before the hearing and shall identify the witness and contain the witness’ full name….” There was no petition filed by the party offering in this case. Also, there was no stipulation as to the witness’ testimony remotely. So, it seems that the WCAB is reading between the lines of the rule to promote their view of fairness/due process.
Note #2: The offering party (defendant) first tried to admit a witness statement as evidence regarding of formation of contracts; and only after that was denied (for due process reasons objected to by another defendant and the applicant) the offering defendant then requested to put on electronic/remote testimony from its witness.
Note #3: as WCJ noted in his report and recommendation on reconsideration, there was no rational reason why Applicant was forced to appear, but not Defendant’s witness. This is a good argument to invoke (fairness) when a WCJ considers allowing electronic testimony from one witness but not the other. Furthermore, this may open the door for claims representatives or employer representatives to start testifying remotely without appearance (I suggest a good reason is given to the WCJ, though) but it also opens the door that every sports case involving out of state witnesses will be allowed to testify remotely!
Question: Could this decision be the first step toward having our entire system conducted remotely? Couldn’t any defendant say they are unable to travel to the WCAB (no car; traffic; childcare … all could be easy ‘reasons’ for not being able to attend in person hearings) and would the holding in this decision allow remote hearings as a matter of due process in every such situation?
Kimberly Petarra v. Azusa Unified School District (POM ADJ17359397)
Issue = Petitions for Removal.
Decision = Petition for Removal from WCJ denied.
Reason = The WCAB will only grant removal from a WCJ if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted (8 CCR 10955(a); Cortez v. WCAB (2006) 71 CCC 155)); and if petitioner demonstrates that reconsideration will not be an adequate remedy. (8 CCR 10955(a)).
In this case, petitioner merely alleged these things and did not show them/explain how.
Examples of prior successful removals:
-removal of the case to civil court when the claim involves issues outside the
jurisdiction of the WCAB such as for intentional tort to 3rd party liability
determinations.
-removal for lack of jurisdiction
-removal for denying a party an opportunity to present evidence
Ramon Martinez v. Frost Trucking and Sales/ SCIF (BAK ADJ9354045)
Issue = When does a contested claim exist for purposes of a lien claimant medical-legal expense recovery (a copy service in this case).
Decision = Defendant’s petition for reconsideration denied. Lien claimant allowed to pursue reimbursement for medical-legal expense (SDTs) upon showing of contested claim/issue per LC 4620, 4621.
Reason = After hearing, a WCJ disallowed the lien for copy services as not being reasonable or necessary where the parties utilized an AME, and the AME later found industrial injury. Upon lien claimant’s petition for reconsideration, the WCAB found a contested claim existed and remanded the matter. The WCAB pointed out that checking a box in paragraph 9 of the pre-printed Application for Adjudication that the AAC was filed for a dispute over temporary disability and permanent disability, among other things was sufficient to establish a contested claim. It defined contested claim under LC 4620(b) as a Defendant failing to accept liability when there was no evidence to show Defendant accepted liability after the filing of the application for adjudication. The WCAB addressed the reasonableness and necessity of the services under LC 4621 — that at that time, the subpoenas were reasonably relevant discovery to stated-disputed issues—and denied Defendant’s petition. The fact that Defendant later admitted injury was irrelevant to the determination of the issue.
Tip = If agreeing to an AME to resolve issues, if you want to avoid a build-up of medical-legal expenses in the meantime, give notice to parties or interested parties, that acceptance or denial is a purely medical issue, and a decision is being delayed pending receipt of the AME (and that all medical records needed are being voluntarily released by Applicant and obtained by Defendant) so that the procurement of any medical-legal expenses is unreasonable and unnecessary (and will be objected to).
Julie Gratz v. United Continental Holdings/Sedgwick (SF ADJ15516233)
Issue = What is the time frame for the WCAB to decide a Petition for Reconsideration, and how is it calculated?
Decision = 60 days from WCJ’s transmittal to WCAB.
Reason = LC 5909, as amended on 7/2/24, states that a petition for reconsideration is deemed denied unless it is acted on by the WCAB after Petition within 60 days of the date the trial judge transmits it to the WCAB. Section (b)(1) clarifies that when a trial judge transmits a case to the WCAB, the trial judge shall provide notice to the parties and the WCAB. Transmission of the case is shown in EAMS and deemed notice to the WCAB; this is when the 60-day commencement for accepting/denying a petition for reconsideration begins. In turn, service of the Report and Recommendation is notice to the parties.
Note = In dicta, the WCAB discussed a separate issue of timeliness— the consequences of an untimely UR decision under LC 4610. The WCAB cited Dubon v. World Restoration, Inc. (2014) 79 CCC 1298 (BEB Dubon II):
- A UR decision is invalid and not subject to IMR only if it is untimely.
- Legal issues regarding the timeliness of a UR decision must be resolved by the WCAB, not IMR.
- All other disputes regarding a UR decision must be resolved by IMR.
- If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial evidence consistent with LC 4064.5.
