WORK COMP LEGAL UPDATE

REMOTE WITNESS APPEARANCE ALLOWED

DESPITE NO PRIOR PETITION FILED

In Tyson Perez v. Chicago Dogs (8/12/2025), Liberty Mutual was disputing California jurisdiction for a professional baseball player that played for the Chicago Dogs (Illinois) and the Houston Astros (Texas). At a trial on the issue of personal jurisdiction, Liberty Mutual's witness who was located in Illinois provided a written statement and was available to testify directly electronically. The other parties objected to the witness statement admission on due process grounds, and the trial judge disallowed the witnesses' ability to testify electronically because no formal petition was filed before the hearing as required under 8 CCR 10817. Without any remaining rebuttal evidence from Liberty Mutual, the judge found California had personal jurisdiction to address the applicant's workers' compensation case.

On reconsideration, the Appeals Board in an En Banc decision stated a request on the record at the beginning of the hearing to allow a witness to testify remotely satisfied the petition requirement, and therefore the witness should have been allowed to testify remotely.

[COMMENT: This appears to be a fact-driven decision to avoid a due process problem after disallowing all defense evidence. Note that Rule 10817(a) states a petition must be filed "before the hearing" as oppose to occurring at the start of the hearing. Additionally, the mere filing of a request to testify remotely still requires a trial judge's approval. In short, be cautious as to the extent this case can be relied upon on how to handle remote witness situations. The best practice remains to prepare a petition outlying why a witness needs to testify remotely, and file the request at least 20 days prior to a scheduled hearing.]

PRIMER ON GOVERNMENT COMMUTE PROGRAMS

In the writ denied decision of Miller v. WCAB (2025 Cal.Wrk.Comp LEXIS 26) a correctional officer was injured while in an employer sponsor commuter van program. His claim was denied pursuant to Labor Code section 3600.8(a), which provides that an employee who voluntarily participates in an alternative commute program sponsored or mandated by a governmental entity is not acting within the course of employment while traveling to and from work, unless the employee is paid a regular wage or salary for commute time.

While not applicable in this case, the Board observed that exceptions to the statute include where the employee is being paid for commute time, the employer elects to cover the commute under their workers' compensation policy, or when the vanpool vehicle is owned or registered to the employer or the State of California.

[COMMENT: In this case the employee was not compensated for commuting, and was voluntarily riding in a private vanpool vehicle.]

MED-LEGAL CHARGES:

CLERICAL COSTS DISALLOWED

In a writ denied decision of Jonathan Macy, MD v. WCAB (Zenith)(2025)(90 CCC 612) the WCAB agreed with the trial judge that a cost petitioner was not entitled to an additional reimbursement of $67.50 for clerical expenses associated with preparing a QME medical legal report.

The Board confirmed that clerical costs are included in the medical-legal fee schedule, and there is nothing in the Labor Code allowing for additional clerical costs.

[COMMENT: The Labor Code is very specific in what additional items are allowed that impact the fee schedule amount, such as type of specialty, use of interpreter, pages reviewed, etc. and clerical costs are not such an item.]

HEWS NEWS

August HEWS Work Anniversaries:

Legal assistants Barbara DeSanctis (6 years), Matthew Encinas (1 year) and Noor Alaghbar (1 year).

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Main Contributor: H. Neal Wells IV hnw@hmplc.com

Editorial Staff: Lynn P. Peterson

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