One frequent tactic of some attorneys is to attempt to force the in-person appearance of a claims adjuster at trial.

Michael P. Burns

This raises concerns regarding the feasibility of adjusters appearing in person at a trial. This tactic is often employed to force defendants into unfavorable settlements and can lead to complex questions about whether the Workers' Compensation Appeals Board has personal jurisdiction over out-of-state adjusters.

In the recent case of Dominguez v. Shield Platinum Production LLC, the WCAB overturned the trial judge’s order directing the claims adjuster and the adjuster’s supervisor to appear at an in-person lien trial.

The WCAB noted that due process under both the California and United States constitutions includes the right to call and cross-examine witnesses. The insurer, which happened to be State Fund (a California-based entity), argued that an in-person appearance created an undue burden on the adjuster. Specifically, it prevented the adjuster from handling other cases as a result of appearing in person. Moreover, the adjuster was available to appear by telephonic or other electronic means.

The WCAB acknowledged that the trial judge has the power under 8 CCR Section 10330 to order parties to appear at a hearing. However, requiring an in-person appearance requires the trial judge to consider the following factors before ordering such an appearance: (1) the nature of the hearing; (2) the dispute and relief sought; (3) the utility of the adjuster appearing in person; (4) the practical hardship and burden of having to appear in person, which includes the distance in nature of travel required.

The WCAB concluded that the adjuster’s in-person appearance was not warranted, as the issues that concerned the trial judge — settlement and framing — could be conducted via telephonic or other means.

This case is helpful for defendants in several ways. First, it serves to caution trial judges against ordering in-person appearances of claims adjusters absent compelling circumstances. Second, it identifies several specific factors that, when considered, prescribe a narrow framework for an adjuster’s in-person appearance. Third, it reminds defendant that in-person appearances at the WCAB, while rare, are sometimes justified. Accordingly, actively addressing potential issues, including penalties and sanctions, before they move to trial is the preferred approach.

While in-person appearances at trial and the WCAB, in general, remain in a state of ambiguity following the COVID restrictions and the gradual reopening of the judiciary, the WCAB in this decision reminds parties that telephonic or other electronic appearances appear to be equally — if not more — preferred than in-person appearances.

Michael P. Burns is a partner at Bradford & Barthel’s San Jose location. This entry from Bradford & Barthel's blog appears with permission.