ADJ13460039 — California WCAB decision

What the panel ordered

Petition for removal granted; WCJ's Order Denying Request for Remote Trial rescinded; matter returned to WCJ for further proceedings.

Petition for removal of the WCJ's April 6, 2022 Order Denying Request for Remote Trial granted, rescinding the WCJ's order and returning the matter to the WCJ for further proceedings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Jurisdiction / venueApplicant prevailed

The WCJ erred in denying the request for remote trial based on failure to seek ADA accommodation prior to filing; the WCAB found no regulatory requirement for such and granted removal to rescind the order.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

WCJ denied remote trial request based on failure to seek ADA accommodation prior to filing.

Favours Applicant prevailed

WCAB found no regulatory requirement for prior ADA accommodation request and thus reversed the denial.

Applicant's attorney requested remote trial due to having a five-month old infant and Covid-19 exposure concerns.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 10510

WCAB Rule 10510

Allows parties to petition for electronic appearance by demonstrating good cause.

From the decision · page 3WCAB Rule 10745 authorizes the WCAB to conduct hearings electronically.1 (Cal. Code Regs., tit. 8, § 10745.) WCAB Rules 10815 through 10817 lay out the basic framework governing remote hearings and remote appearances in WCAB proceedings. (Cal. Code Regs., tit. 8, § 10815§ 10817.) Even where the WCAB has not elected to hold a hearing electronically, any party may petition to appear electronically by filing a petition demonstrating good cause pursuant to WCAB Rule 10510. (Cal. Code Regs., tit. 8, § 10510, 10816(a).)

Cal. Code Regs., tit. 8, 10816

WCAB Rule 10816

Authorizes parties to petition for electronic appearance without requiring prior ADA accommodation request.

From the decision · page 3After review of the governing regulations, we do not agree with the WCJ that a party must seek an ADA accommodation in order to demonstrate good cause for an electronic appearance. WCAB Rule 10816 authorizes parties to petition to be allowed to appear electronically, and nothing in that section or elsewhere in the WCAB's Rules of Practice and Procedure suggests that such a request must be conditioned on seeking an ADA accommodation, nor was it our intent in enacting the regulatory framework to require such. Moreover, requiring an accommodation in every case would burden both practitioners and the WCAB personnel responsible for evaluating such requests, with deleterious consequences for those who need to seek ADA accommodations for other purposes.

Cal. Lab. Code 5709

No informality in procedure invalidates any order or decision; supports flexible procedural approach.

From the decision · page 2DISCUSSION All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is "... one of `the rudiments of fair play' assured to every litigant..." (Id. at 158.) A fair hearing includes but is not limited to the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584]; Rucker, supra, 82 Cal.App.4th at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) The object of the workers' compensation system is to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character." (Cal. Const., art. XIV, § 4.) To that end, under Labor Code Section 5709, "[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule[.]" (Cal. Lab. Code, § 5709.)

ADJ13460039 · December 1, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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