ADJ2030301 · April 4, 2024

The WCJ's denial of remote testimony despite the parties' stipulation was not supported by sufficient good cause, resulting in prejudice and delay. The WCAB found the stipulation constituted good cause and that the WCJ's reason for denial was insufficient, warranting removal and remand for further proceedings.

Favours Defendant prevailed

The stipulation demonstrated good cause, which the WCJ failed to properly accept, leading to prejudice and delay for defendant.

The WCJ's stated reason for denying remote testimony was that credibility is best assessed in person, which was insufficient to override the stipulation.

Favours Defendant prevailed

This reason was found insufficient to reject the parties' stipulation, supporting removal and remand.

From the decision · page 4We see no basis on the existing record for the WCJ to have rejected the stipulation. The WCJ's rejection of the agreement at trial to allow the witness' remote testimony was stated as "[i]n order to properly assess the credibility of a witness, a trier of fact (as well as the other parties in a case) is best served by being able to observe the witness in `real life' rather through a monitor or on a phone." (Report, p. 7.) Based on our review, we do not believe that this is a sufficient reason to reject the stipulation.

Denial of the petition to permit remote testimony caused substantial prejudice and irreparable harm to defendant, as well as unnecessary delay.

Favours Defendant prevailed

This harm justified the extraordinary remedy of removal by the WCAB.

From the decision · page 5Thus, the Order denying defendant's petition to permit remote testimony of Jeff Hinkley in light of the stipulation of the parties at trial resulted in substantial prejudice and irreparable harm to defendant, as well as unnecessary delay.

Lab. Code 5313; Cal. Code Regs., tit. 8, 10833; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Any decision of the WCJ granting or denying a petition to allow an electronic appearance or electronic testimony must be reduced to writing and be based upon an adequate record, after providing the parties an opportunity to be heard, in the same manner as any other order touching on the parties' due process rights.

The WCJ's denial of the petition was not based on an adequate record and did not provide a sufficient explanation, violating due process.

From the decision · page 2Preliminarily, we reiterate that any decision of the WCJ granting or denying a petition to allow an electronic appearance or electronic testimony must be reduced to writing and be based upon an adequate record, after providing the parties an opportunity to be heard, in the same manner as any other order touching on the parties' due process rights. (Lab. Code § 5313; Cal. Code Regs., tit. 8, § 10833; Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

Cal. Code Regs., tit. 8, 10816; Cal. Code Regs., tit. 8, 10510

A party intending to appear electronically may seek permission to appear electronically at a hearing pursuant to WCAB Rule 10816, by filing a petition pursuant to WCAB Rule 10510.

Defendant filed a petition under these rules to allow remote testimony.

From the decision · page 2A party intending to appear electronically3 may seek permission to appear electronically at a hearing pursuant to WCAB Rule 10816, by filing a petition pursuant to WCAB Rule 10510.

Cal. Code Regs., tit. 8, 10835

A stipulation between the parties constitutes good cause and obviates the need to provide an opportunity to be heard or to create a record.

The parties stipulated to remote testimony, which should have been accepted as good cause.

County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114

Stipulations are binding on the parties unless, on a showing of good cause, the parties are given permission to withdraw from their agreements.

The WCJ was required to show good cause to reject the parties' stipulation but failed to do so.

From the decision · page 3Stipulations are binding on the parties unless, on a showing of good cause, the parties are given permission to withdraw from their agreements. (County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1121 [65 Cal.Comp.Cases 1] (Weatherall).) As defined in Weatherall, "A stipulation is `An agreement between opposing counsel... ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,' (Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves `to obviate need for proof or to narrow range of litigable issues' (Black's Law Dict. (6th ed. 1990) p. 1415, col. 1) in a legal proceeding." (Weatherall, supra, at p. 1119.)

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.

The WCAB found that denial of remote testimony despite stipulation caused substantial prejudice and irreparable harm to defendant, justifying removal.

From the decision · page 4Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)