DUE PROCESS FOR THE DEFENDANT –

WHO KNEW?

Tyson Perez v. Chicago Dogs (Appeals Board En banc) 2025 Cal. Wrk. Comp. LEXIS 29

In a system where defendants, like Sisyphus, are constantly pushing a boulder up a hill only to have it roll back down again, we finally have a WCAB decision finding that a defendant has a right to due process.  We may have to duck the pigs in the sky and buy a very heavy coat!

In Tyson Perez v. Chicago Dogs (Appeals Board En banc) 2025 Cal. Wrk. Comp. LEXIS 29, the Appeals Board issued an en banc decision finding that an employer has a right to present evidence via electronic technology without prior approval of the WCAB.

In this case, the applicant was a professional baseball player alleging a cumulative trauma injury while playing for the Houston Astros from June 1, 2011, to June 25, 2022. The applicant filed an Amended Application for Adjudication of Claim joining the Chicago Dogs as a party defendant.  The Chicago Dogs and its carrier, Liberty Mutual, filed a Declaration of Readiness to Proceed seeking adjudication on the sole issue of personal jurisdiction.

At the time of the trial, the Chicago Dogs offered a witness statement into evidence.  Counsel for the applicant and the co-defendant objected to the witness statement because it was not served before the close of discovery and because admitting the written statement into evidence would deprive the parties of their due process right to cross-examine the witness.  The workers’ compensation judge (WCJ) affirmed the objection and denied the Chicago Dogs’ request to permit the witness to testify by telephone.

The Findings and Order issued by the WCJ found that the California WCAB had personal jurisdiction over the Chicago Dogs.  The Chicago Dogs filed a Petition for Reconsideration appealing the trial court’s decision not to allow the witness statement into evidence and not to allow the witness to testify remotely.   In response to the Petition for Reconsideration, the WCJ notes that the defendant had failed to file a Petition pursuant to Rule 10817(a) showing good cause to testify remotely.

The Appeals Board in its ruling notes that all parties have a right to due process and a fair hearing.  Noting the workers’ compensation system’s purpose to afford a simple and nontechnical path to relief, the Appeals Board affirmed the inherent processes in a workers’ compensation case that pleadings may be informal; that claims should be decided based on substance rather than form; that pleadings should be liberally construed; and that technically deficient pleadings do not deprive the Board of jurisdiction.

The Appeals Board notes that these principles of liberal pleading are further reflected in Labor Code (LC) section 5506, which authorizes the Appeals Board to relieve a defendant from default or dismissal due to mistake, inadvertence, surprise or excusable neglect in accordance with Code of Civil Procedure section 473.

Based on the principles noted herein, the Appeals Board’s decision finds that the application of WCAB Rule 10817(c) includes that a request on the record for electronic witness testimony at the beginning of the hearing satisfies the petition requirement and that due process includes a determination based on the merits as good cause to allow electronic testimony of a witness.  The effect of the Appeals Board decision is as follows:  “Therefore, when a witness is unable to appear in person, as a matter of due process, a request to testify electronically should be readily permitted.”

We note that although this case confirms the due process right of a defendant, we advise that Pre-trial Conference Statements reserve the right to remote testimony and identify all witnesses and witness statements. We also advocate providing all statements in advance of a Mandatory Settlement Conference.  Finally, we strongly recommend that, if necessary, defendant file a Petition for Remote Testimony.

This article was written by: Kenneth Scott, Associate Attorney | Mullen & Filippi LLP, Bakersfield, CA