Video trial is slowly becoming the norm at the WCAB.

In the wake of Gov. Newsom's Executive Order N-63-20, which suspended any statute or regulation that permits a party or witness to participate in a hearing in person, the WCAB has been wrangling with the issue of due process rights within the virtual video system at the WCAB.

In a recent case that came out of Bakersfield WCAB, Gao v. Chevron Corporation, the WCAB took out the issue of whether or not defendant's due process rights were denied by forcing the parties to proceed to virtual trial, and obtain witness testimony over video.

In Gao, the WCAB ruled that it was inappropriate to continue the matter until in-person testimony could be resumed, but that, instead, the WCAB must provide for due process under the circumstances of the moment.  The WCAB also acknowledged that cases are always unique, and that “it would … be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.” The WCAB would also place the burden on the party requesting the in-person trial to show good cause.

So, while not a hard and fast rule, it appears the WCAB seems to be inclined to put the “default” setting to remote trials, while still allowing the party objecting to a remote trail to plead its case and show good cause.

What the Gao case does not provide, is any clear legal framework for an objecting party to utilize in showing that there is a denial of due process.

While the Executive Order from Gov. Newsom seems to lay out the framework necessary to permit a continuance, the Gao Board indicated that this is one of the factors they may look it.  On the books since May, The Executive Order provides that if the following requirements are satisfied, there shall be no suspension of any hearing via electronic means:

a) Each participant in the hearing has an opportunity to participate in and to 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.

The board in Gao did touch on some interesting issues, which are laid out below:

"The WCAB’s transition to remote hearings is not based upon some bureaucratic whimsy, but rather upon the advent of a global pandemic that has cost the lives of hundreds of thousands, and caused fundamental shifts in the behavior of most of the world’s population. Due process is the process that is due under the circumstances as we find them, not as we might wish them to be. Executive Order N-63-20 represents the Governor’s best judgment as to how to strike a fair balance between the due process rights of participants in hearings, the necessity of protecting the public from real and significant harm, and the state’s responsibilities under the California Constitution to provide efficient, timely resolution of disputes in order to secure benefits for eligible injured workers." 

To be sure, each case must be resolved according to its own particular circumstances. The Gao Board did indicate that there must be a showing of some clear reason why the facts of a specific case require a continuance. This suggests that an initial hearing or argument must take place prior to any video testimony moving forward, in order for the trial judge to consider whether or not the requirements of the Executive Order are met, and to have the trial judge take into account the specific facts of the situation. 

So parties looking to move the proceeding forward, need to take this case into account and deal with this issue before the day of trial. In the alternative, if you're looking to get a trial continued, you may want to raise these issues prior to the day of trial, with the filing of a pleading. 

It does not appear that video trials are going away anytime soon, and they may even become permanent at the WCAB in some capacity in the future.