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Friedman: Telephonic Testimony at the WCAB — Pros and Cons

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The COVID-19 Pandemic is necessitating significant changes to the procedures for adjudicating California workers' compensation claims. The impracticality of “social distancing” in a courtroom setting has required applicants and employers to use technology such as telephonic attorney appearances and in lieu of traditional in person hearings.

Heywood G. Friedman

Heywood G. Friedman

On April 28 the Division of Workers’ Compensation announced thru its “Newsline” that as of May 4, all conferences, expedited hearings and trials would be conducted by way of telephone conferences and that in-person hearings would no longer be conducted until the coronavirus crisis had abated. This procedure was amended a month later on May 28 when the DWC announced that a limited number of telephonic lien conferences would be added to a judge's daily calendar.

The Issue

Without in person testimony in court, how can a judge assess the demeanor of a witness? Surprisingly, the drastic change in jurisprudence which eliminates live testimony at the WCAB results in both advantages and disadvantages to an employer. Set forth below are the positives and negatives of telephonic testimony.

The Negatives

When an industrial injury or the extent of disability are in dispute an employer typically wants a judge to assess the credibility and demeanor of the witness before rendering a decision. Such assessments often lead to determinations that the worker has exaggerated their injury. This assessment is accomplished via the judge’s visual and audible observations of the worker while testifying. However, due to the WCAB's current procedures allowing only telephonic testimony, visual observations are eliminated from the equation, depriving the judge from utilizing an important mean to assess credibility. Visual indications of dishonesty, such as body language (shifting positions, twitching), and nervousness (perspiration, blushing, and other facial expressions), which are easily detected from in-person testimony become in-detectable when live, in-person testimony is prohibited.

Moreover, the inability of a judge to make visual observations of dishonesty detracts from their related ability to pick up on verbal stimuli of dishonesty, such as stuttered responses, inaudible or low-volume answers, sounds of disgust, grunts, moans, changes in breathing pattern, repetition of words or phrases, or difficulty in speaking. Instead, the judge must rely only on verbal responses, which in itself creates a whole new avenue of controversy. For example, how can it be determined if the applicant is being coached when giving testimony? Without being able to visually observe the applicant as they testify, the potential exists that someone could be sitting beside the applicant providing them with “real-time” coaching as to their testimony. Taking this same scenario one step further and to extremes, one must ask how does a judge know the individual who is testifying over the telephone actually is the applicant and not an imposter? These are critical problems when testimony is given by telephone exclusively.

The Positives

As strange as it may seem, an argument can be made that telephonic testimony might provide some advantages to an employer. For example: the sympathy factor is eliminated when a judge cannot observe an injured worker hobbling to the witness stand, or almost falling over while using crutches or a walker while entering into or moving about the court room. Amputations cannot be viewed first-hand. Facial grimaces from pain and discomfort cannot be observed. The judge must rely solely on the injured worker's verbal testimony along with medical records. The human element is lost.

In the “real world” of workers’ compensation it is not uncommon for judges to make up their mind about compensability and disability status solely upon a visual observation of the injured worker. Live testimony by an applicant is of far less importance when a worker who has lost a limb enters into a courtroom. Workers who present in court via a wheelchair make a strong impression on judges. Again, the human element is lost when judicial proceedings are limited solely to telephonic testimony.

Conclusion

The recent WCAB's procedures eliminating live testimony presents positives and negatives to employers. In practice, applicant and defense attorneys might adopt either of the approaches discussed above. Both sides have something to embrace or complain about. The unique facts of each case will influence whether an employer should oppose telephonic testimony.

Heywood G. Friedman is the founder and managing partner of the Law Offices of Friedman & Bartoumian in Agoura Hills, California.

 

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