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.
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.
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
A Lien Conference which was recently set for Trial was jointly stipulated to in the Pre-Trial Conference Statement, but it appears that was not enough or overlooked by the WCJ, as the Trial Notice states that it will be in person. However, the parties will try to submit a joint request to switch to a virtual hearing, and that case is currently pending.
We also had another attorney set a Trial in September, knowing it would take place after October 1, 2021, in Los Angeles, and the WCJ actually asked if the parties wanted it in person or virtual.
We have also had email correspondence sent to the trial judge where all parties request a virtual trial, and it was granted.
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
They are telling the parties to wait for the Trial Judge to be assigned and stand-by to see if anyone is going to challenge and strike the Judge. Thereafter, when you are sure who your Trial Judge is, you can submit a joint request to the WCAB, but the Trials will still be in person until you actually receive an approval by the WCJ to hold the hearing virtually.
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 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.
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.