Defendant requested in person testimony for trial denied due to Covid pandemic
- Posted By: Harvey Brown
- February 1, 2021
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
Samuelsen, Gonzalez, Valenzuela & Brown
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Newport Beach, Ca 92660