This article is a synopsis of an article found in California Workers’ Compensation Reporter, volume 53, number 8, September 2025, page 145.

A unanimous en banc decision was provided by six sitting WCAB commissioners in Perez v. Chicago Dogs/Liberty Mut. Ins. Co.; Houston Astros/Ace Amer. Ins. Co./Chubb, [ADJ16597333 (ANA), Aug. 12 and Aug. 14, 2025, Order Granting Reconsideration (en banc), 90 CCC 830]. The commissioners opined that there is a basic need to have disputed claims decided on the merits, rather than be disallowed because of procedural shortcomings. They allowed for rebuttal testimony electronically, where the witness was listed on the pre-trial conference statement and at trial, defendant requested the electronic testimony, or alternatively, a pre-prepared affidavit of the witness testimony. The judge would not allow either.

The facts of the case are that a cumulative trauma injury was claimed for a baseball player from June 2011 to June 2022. He played for both the Chicago Dogs and the Houston Astros during that period. There was an issue of personal jurisdiction over the Chicago Dogs, and a mandatory settlement conference occurred on that sole issue. The matter was set for trial with the team’s chief operating officer listed as a witness. Shortly after the MSC, an affidavit was prepared and filed with the Board and served on the parties. The affidavit included testimony of the lack of personal contact with the applicant when he was in California.

At trial, the defendant attempted to have the chief operating officer provide testimony electronically. The judge cited WCAB Rule 10817(a), which requires a party intending to present testimony electronically to file a petition showing good cause for the need of electronic testimony. Further, the judge would not allow the admission of the affidavit.

The trial judge then found the Board had personal jurisdiction over the Dogs. The Dogs appealed the decision.

In an en banc decision, the WCAB found that the electronic testimony should be allowed. They opined that several operative fundamental legal principles were at play, in order to accomplish substantial justice. 

The Board cited §§5307, 5500.3, and 5708, which collectively provide the authority for the Board to establish its own procedures and rules.

Next, the parties have due process rights that requires a fair hearing and a decision on the merits. This includes the right to call witnesses, with the policy being the need to avoid defaults as the basis for a decision. There is an obligation to fully develop the record and avoid injustice when mistakes of law or fact occur.

Finally, they state the Board is required to construe pleadings liberally and informally and conform them to the proof developed at trial. 

Ultimately, they claim that WCAB Rule 10817(a) should allow for electronic testimony, even without a pre-trial petition, if it is requested at the beginning of a hearing and the other party has the right to respond. 

As such, the Board granted reconsideration and deferred a final decision on the merits. 

As pointed out by the Editor from CWCR, the due process is the primary concern. This is a case where an affidavit was prepared well before the trial, allowing the opposing counsel sufficient time to prepare for any rebuttal of testimony, if possible. Even if electronic testimony provided at trial was new and different than that stated in the affidavit, the judge could then simply continue the trial to allow additional discovery, just as we often see on medical issues with doctors.

In conclusion, it would seem the best practice is still to timely petition for the electronic testimony. However, if issues arise and a witness becomes unavailable in person, this case now gives some authority to request the testimony electronically, so long as it is requested at the very beginning of trial.