Telephonic trial did not violate defendant’s Due Process Rights or Governor’s Order

This is a Board Panel Decision

This is a very significant case for workers’ compensation principles.

The applicant sustained an injury in a physical altercation. The defendant denied the claim contending the applicant was the “initial physical aggressor” and thus barred from recovery.

The case was tried after the Workers’ Compensation Appeals Board (WCAB) stopped conducting in person trials because of Covid-19 restrictions.

The case was to be tried by telephonic link.  The defendant objected claiming that the Workers’ Compensation Judge would not be able to give an adequate assessment of the witnesses’ testimony by a telephone call or video conferencing.  The WCJ denied the defendants request and the trial was held telephonically with video conferencing.

The WCJ issued a decision finding the claim compensable and finding the defendant was not the initial physical aggressor. This was after listening to all witnesses telephonically. The defendant filed a petition for reconsideration.

The WCAB indicated that due process only requires a hearing appropriate to the nature of the case. The need for a remote hearing was not base on whimsy. The need for a remote hearing was based on the advent of a global pandemic. Due process is based on the  circumstances as they find them. Here there was a global pandemic. Therefore,  the defendants’ s  due process rights were not violated.

Johanson v. San Ramon  Valley Unified School District

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


Low Back not included in Compromise and Release so it was not settled

This is an opinion and decision after reconsideration

The applicant alleged injury to multiple body parts including the low back. The parties entered into a Compromise and Release but it did not include the low back as part of the settlement.

The case went to trial on whether the applicant could still claim the low back even though the rest of the body parts were settled by Compromise and Release. The Workers’ Compensation Judge (WCJ) ruled since the parties were aware of the claim for the low back it was not settled.

Defendant appealed. The applicant struck the language in the C&R that discharged defendant form liability for any claims not mentioned. The Workers’ Compensation Appeals Board ruled the low back claim was not settled and remanded the case.

Romero v. Berberian Enterprises
Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602


Defendant requested in person testimony for trial denied due to Covid pandemic

This is a Petition for Removal

This is a very significant case for workers’ compensation principles.

The applicant alleged a psychiatric injury. The case was tried on March 10, 2020.  The applicant gave both direct testimony and was cross examined.  The trial could not be finished in one day. The case was continued to June 9, 2020 for defense witnesses. In light of the Covid-19 pandemic the Workers’ Compensation Appeals Board (WCAB) stopped conducting in-person trials as of March 16,2020.

Before the June 9, 2020 date the applicant requested the case continue by remote testimony.  The defendant requested a continuance so in-person testimony could be elicited from three defense witnesses.

The Workers’ Compensation Judge (WCJ) continued the case set for September 1, 2020 stating that due process required in-person testimony of defense witnesses since applicant had previously given in-person testimony. The WCJ continued it to a time in the future when in-person testimony could be given.

Applicant filed a Petition for Removal. The WCAB indicated removal is an extraordinary remedy rarely used by the Appeals Board. However, they allowed here.

Next they turned to the issue of defendant’s due process.  They indicated due process is  a flexible concept.  Due  to the global pandemic the defendant’s due process rights were not violated.  The case could be remotely tried.

Gao v. Chevron

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586


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