A Small Step Towards Normality

California got just a little bit closer to the pre-COVID world last month when the Division of Workers’ Compensation announced that certain types of hearings would go back to being held in person.

As of March 21, 2022, all Workers’ Compensation district offices with the exception of the Eureka office have restarted in-person hearings for trials, lien trials, expedited hearings, and special adjudication unit (SAU) trials. Other proceedings – such as mandatory settlement conferences, status conferences, SAU conferences, and lien conferences – will continue to occur remotely.
The Eureka district office was permanently converted to a virtual office last year, so it no longer has an actual physical site. The Bishop, Marysville, Chico, and Ukiah satellite offices will remain virtual as well for at least some time to come.

For those offices returning to in-person hearings, the DWC announced that face masks will be uniformly required, no matter whether an office’s local county has lifted a mandate, or whether individuals entering the office are vaccinated.

It’s worth noting that just because certain hearings can happen in the flesh again, doesn’t mean that they will have to be. Hearings that might otherwise go back to being held in person can still be designated on a case-by-case basis as remote under the current rules; if any party opposes, it can file a written objection showing good cause why the hearing should not occur remotely. Similarly, if a hearing is now designated to be held in person per the announced changes, a party who wishes to appear remotely may attempt to demonstrate that there is good cause to allow them to do so. Other regulations make similar provisions for whether a witness will testify remotely or in person.

What “good cause” means in this particular context is as yet undefined. It seems reasonable to believe that parties or witnesses with risk factors which may increase the possibility of a severe COVID infection – such as heart or lung conditions, diabetes, or weakened immune systems – should be able to establish good cause to participate remotely. What evidence might be required in support of that good cause remains to be seen.

It should also be interesting to see how good cause is defined in the opposite situation – where a party seeks to change a remote proceeding or appearance to an in-person one. How will the respective values of physical presence, safety, personal convenience, travel demands, etc. be balanced? To what extent, for example, will a uniform mask requirement undermine the benefit of physically observing witness testimony or arguments from counsel?

Most involved in the Workers’ Compensation system would probably agree that holding the more routine hearings remotely has been a good thing, reducing the time and expense formerly associated with such proceedings. People are eager to get back to more normal times, but we can also hope that some of the practices adopted out of necessity during the pandemic survive as a matter of common sense.