In a recent en banc decision issued on August 14, the Workers’ Compensation Appeals Board clarified that due process requires requests for electronic witness testimony not be denied without an opportunity to be heard. The Board emphasized that appellate review depends on a complete evidentiary record, and fairness demands that witnesses unable to appear in person be allowed to testify electronically when good cause exists. This decision, which applies to all WCAB panels and judges, will impact how requests for electronic testimony are presented in the future.
The decision arose from a cumulative trauma claim filed by former professional baseball player Tyson Perez, who alleged physical and psychiatric injuries while playing for the Houston Astros and the Chicago Dogs. During the trial, the Astros objected to the admission of a statement from the Chicago Dogs’ COO, arguing they had not been served the statement before discovery closed and would be denied the opportunity to cross-examine the witness. When the Dogs requested their witness be allowed to testify by phone, the judge denied the request, citing WCAB rules requiring a petition showing good cause for remote testimony. The Dogs filed for Reconsideration.
On reconsideration, the WCAB explained that its rules allow for flexibility in how witness testimony is handled. The Board pointed out that Rule 10817 permits electronic testimony with good cause, but other rules, like Rule 10517 (allowing pleadings to be amended to conform to proof) and Rule 10515 (disallowing demurrers and similar procedural roadblocks) reflect a liberal approach to allowing testimony. Therefore, a request made on the record at the start of hearing, with opportunity for opposition, is sufficient to adjudicate electronic testimony issues.
This en banc decision emphasizes that due process and the right to a full and fair hearing are paramount. Requests for electronic testimony should be readily granted when a witness cannot attend in person, provided the request is made on the record with opportunity for response. The ruling provides a stronger guarantee that key witness testimony will not be excluded on purely procedural grounds, ensuring that cases are decided on their merits rather than technicalities.
The WCAB en banc decision can be found here.
