This article has been updated on October 25, 2021
Do We Really Have To Go Back?
On September 1, 2021, the DWC announced that as of October 1, 2021, in-person hearings will resume at all DWC District Offices except Eureka, which is now a completely virtual office, as well as the satellite locations of Bishop, Marysville, Chico, and Ukiah, which will also remain virtual.
However, it would solely be hearings that would be in person consisting of Trials, Lien Trials, Expedited Hearings, and Special Adjudication Unit (SAU) Trials only.
Is It Safe?
The DWC stated that all offices will require face coverings regardless of vaccination status or county mandates. Nevertheless, there were well-founded fears from the community about having to be in close proximity with one another, especially at Trials where we have witnesses required to appear. You may have applicants as well as employer witnesses that do not want to be there in person, co-morbidities, or other health issues, yet they would be forced to appear in person. What if the employer witness contracts COVID-19 from these proceedings? Are you then opening yourself up for workers’ compensation claims? Will there be a need for quarantining after any type of exposure at the WCAB? There seems to be more questions than answers at this point.
Real Examples Of Attempts To Go Virtual At Various WCABs
It appears that the WCAB and WCJs may be amenable to still allowing virtual Trials and hearings to move forward, if all parties agree! A public hearing occurred on September 24, 2021, to address the proposed regulations. Essentially, the plan was for the WCABs to still move forward with in-person Trials and hearings, but remote hearings may be requested by filing a Petition showing good reason for a remote hearing to be warranted. It appears that so far, the fact that we are still in the pandemic, variants of the virus continue to threaten the public. As we can see since that public hearing Judges seem to be more amenable to allowing virtual Trials and hearings to move forward.
So far, it seems to come down on a WCAB by WCAB basis, but for example, this is what we have seen so far in our experience.
Update On WCAB
Since our initial news article, the updated information on virtual hearings are highlighted below in blue.
At this time, the Fresno WCAB in regard to Trials, Lien Trials, and Expedited Hearings, is asking the parties to simply call into the assigned Judge’s telephone conference line at the designated time. During this initial phase of the Trial or Expedited Hearing process, the assigned Judge will discuss the aspects of the case with the parties and who will be expected to discuss whether the case should proceed “in person” or if it may go forward as a tele-hearing. While the parties may advise how the matter should go forward (by tele-appearance or the Court’s Live Scan platform), the assigned Judge has the discretion to make that final determination.
If the Judge determines that the matter should proceed “live” and “in person”, the Judge will set the appearance time, and the Courtroom will be open for the parties.
Because the Judge may order the parties to immediately move into the Courtroom, it is important that the parties remain in the vicinity of the Fresno WCAB (however, this begs the question of whether employer witnesses still must appear). There have been WCJs in the past to simply state that employer witnesses should always remain on call, because it is unknown if cases will actually be able to move forward on the record based on the calendar, continuing testimony, out-of-state witnesses, etc., that have preference. However, at the very least, the attorneys, along with the applicant, should be present.
Van Nuys WCAB
We have objected to an in-person proceeding and request a virtual proceeding. The trial judge’s secretaries called our office and wanted to see if all parties agreed. We notified them that they did, and we have received approval for our request for a virtual hearing.
File a Petition to do a virtual hearing. Include the e-mail addresses in the correspondence, so the Judge can e-mail you approval for the virtual hearing.
Judge Feddersen continues to check his conference lines on his Trial and Expedited Hearing days, and he is not penalizing anyone for appearing virtually. Judge Sommers is allowing virtual hearings if there is a Stipulation of the MSC. The Santa Ana WCAB Judges have simply been deferring virtual hearings and Trials to the Presiding Judge.
Santa Ana WCAB
When the defense of the applicant’s attorney both requested that the Trial that was continued prior to October 1, 2021 (but the new trial date would be after October 1, 2021), be virtual, the WCJ stated that they would have to check with the Presiding Judge (PJ) to see if this was allowed.
One of our attorneys was told to send a Stipulation indicating agreement and reason, and it will go on a case-by-case basis. However, the WCJ seemed to be agreeable to it at the present time.
Judge Howell granted the virtual hearing based on the fact that one or more of the parties have an at-risk family member that could be adversely impacted by COVID-19.
Los Angeles WCAB
Presiding Judge Rassp said if both parties agree, they can have a virtual Trial or hearing. The agreement should occur at the MSC noted on the Minutes of Hearing or by filing a joint Stipulation and Petition to appear virtually or by telephone.
If the parties agree at the MSC to do it virtually, please advise the Trial Judge after the MSC, so the Trial Judge is made aware. If Judge Aslanian is your Trial Judge, she has specific rules of which to follow.
You are asked off the record if you want your Trial in person or virtual. If the parties agree to virtual, they are supposed to allow it, but apparently, it is still up to the Presiding Judge to decide if it will be granted.
San Bernardino WCAB
There has been clarification now that you may not stipulate to a virtual hearing at the MSC or on the
Pre-Trial Conference Statement. You must file a joint Stipulation and then wait for approval.
When setting the trials from an MSC, the MSC judge is reminding people to appear in person at the trial (and they are not commenting on whether you can change it to virtual once you know the trial judge).
Judge Schultz informed attorneys to ask the Judge at the MSC if a virtual Trial will be allowed. She will note that on the Minutes of Hearing, but it appears it is still up to the Judge to make the final decision.
Judge Cyprien is denying requests for virtual hearings as they do not show good cause. What is good cause? See below.
Judge Coutts is sending reminders via general purpose Orders that the trial or hearing will be in-person. It remains to be seen if she will allow joint requests for virtual trials/hearings.
As for the other Judges, it appears that they are still inspecting people to appear in-person for a Trial or hearing.
San Diego WCAB
Judge Utter is requiring in-person Trials, but we do not know if she is willing to allow if virtual Trials and hearings, if agreed to beforehand by the parties.
Judge Atcherley requires you to appear telephonically for the Trial, and then she will provide instructions from that point. Even a Petition wanting to have an in-person Trial will be rejected by Judge Atcherley and you must telephone the day of the Trial or hearing.
It appears they are defaulting to virtual hearings and Trials but we have heard from the applicant’s attorneys that if you want an in-person Trial, you need a joint request for it to be approved.
San Jose WCAB
Per Judge Suh, a Petition is required for a virtual hearing request even if the parties stipulated at the MSC to do it virtually. You must file a Petition after the Notice of Trial, so the Trial Judge can act on it before the Trial date.
Marina Del Rey WCAB
Judge Ter Veer prefers to do virtual hearings. You are to file a Petition, but absent that, you must still appear in person. You are then told to wait outside of the Board until called. Essentially, they want you to wait outside of their Board in your car or at the coffee shop next door until your case is called.
Good Cause In Order To Allow A Virtual Trial Or Hearing
Any joint stipulations and request should also include good cause as to why the trial or hearing must be done virtually. Good cause includes, but is not limited to the following:
- One or more parties have an ongoing underlying health issue that makes them more vulnerable to complications should they come into contact with or contract COVID-19.
- One or more parties are the care takers of minors/elderly that are unable to be vaccinated and/or have ongoing underlying health issue that makes them more vulnerable to complications should they come into contact with or contract COVID-19 and present a greater risk of spreading the virus due to their inability to be vaccinated.
- One or more parties have an unvaccinated child who is not eligible for a vaccination in the home.
- One or more parties have at risk family members in our home who have health issues (HIPAA, details remain private) that could be negatively impacted by COVID-19.
- Due to COVID-19 restrictions, one or more parties have child(ren) at home that require at home supervision.
- One or more parties have a diagnosed health condition (HIPAA, details remain private) that puts them at high risk if they contract COVID-19.
So Will My Trial Or Hearing Be In Person Or Virtual?!
At this time, we are following the DWC directive, but it appears that if all parties agree, we may have our Trials become virtual. If in doubt by the actual Trial date, we will still appear in person as your attorney, but we would still recommend that employer witnesses remain on call, as they normally would, even when we had in-person Trials and hearings pre-COVID.