Discovery and Trial Practice in Era of COVID-19: A Guide for Navigating Recent Executive Orders And Their Impacts on Witness Testimony and Telemedicine
July 21, 2020
Californians entered unchartered territory as the world encountered the global spread of COVID-19 in March 2020. Government officials, business owners, and individuals scrambled to implement regulations and develop new ways to conduct business and provide essential services, while still complying with safety and social distancing measures. In the workers’ compensation arena, we have seen changes to Board policies, discovery procedures, medical evaluations and treatment, and expansion of presumptions pertaining to employees infected with COVID-19.
As we continue to navigate the gradual reopening of businesses and future uncertainties, workers’ compensation professionals are learning how we can best navigate and adapt to permanent and long term changes. Laughlin, Falbo, Levy, & Moresi is committed to providing support and education for our clients in this unprecedented time. We have identified several areas that we believe will be most relevant in the future.
Technology & Depositions
Prior to the COVID-19 pandemic, a deponent was required to be “present” at the deposition (in the presence of the court reporter), whereas the other parties, such as attorneys or employer representatives, could appear electronically. (California Code of Civil Procedure § 2025.310(a)-(c)).
The Judicial Council of California adopted Emergency Rule 11 in response to the COVID-19 and the widespread shutdown, which states that a deponent may elect not to appear before a court reporter, thus suspending the in-person requirement in CCP § 2025.310(b). This Emergency Rule is effective until 90 days after the Governor declares the COVID-19 emergency lifted.
Video Conference depositions are not new to workers’ compensation practice, although they have grown in popularity over the last decade. The relevant legal statutes, rules, and case law decisions provide that parties can mutually agree to electronic depositions (CA Rules of Court, Rule 3.1010(a-e)), and that recordings of such depositions may be admissible at Trial. (CA Rules of Court, Rule 2.1040(a-d)). The parties have wide latitude to appear or depose parties remotely under the relevant statutes, rules, and case law, with the exception that the deponent must be in the presence of the court reporter. That requirement is now suspended under the Emergency Orders.
The bottom line at present is that the parties are allowed to proceed with depositions remotely, and the parties cannot force an in-person deposition. Though the parties may agree to postpone depositions until they can be safely conducted in person, a party cannot unilaterally elect to wait to set a deposition until the emergency order is lifted.
The Emergency Rule remains in effect at this time so either party may elect to appear by telephone or video conference if this option is available. Typically, in person depositions are preferable to telephonic or video conference so that the parties are able to observe the deponent’s behavior, demeanor, and response to exhibits, such as medical reports. However, certain video conferencing software allows the parties to “screen share” to enable an attorney to show a document to a deponent and their attorney when needed. Obviously, when sharing screens, extra care should be taken not to inadvertently provide access to privileged or confidential documents on screen. Given the on-going public health concerns, we anticipate that remote depositions will continue for the time being.
The various emergency orders pertaining to the judicial process have changed workers’ compensation trials in two important ways. First, the WCAB issued an En Banc Order No. 262 suspending the requirement that parties file Trial Exhibits with the WCAB 20 days prior to Trial (WCAB Rule 10670(b)(3)). The parties may now email Trial Exhibits directly to the local District office when directed by the Trial Judge to do so.
Second, the parties are no longer able to object to the WCJ’s decision to conduct all or part of a proceeding electronically, including Trials. Governor Newsom issued Executive Order N- 63-20 on May 7, 2020, Section 11 which states:
“Any statute or regulation that permits a party or witness to participate in a hearing in person, a member of the public to be physically present at the place where a presiding officer conducts a hearing, or a party to object to a presiding officer conducting all or part of a hearing by telephone, television, or other electronic means, is suspended, provided that all of the following requirements are satisfied: a) Each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits; b) A member of the public who is otherwise entitled to observe the hearing may observe the hearing using electronic means; and c) The presiding officer satisfies all requirements of the Americans with Disabilities Act and Unruh Civil Rights Act.”
The Order appears to suspend the WCJ’s ability to subpoena witnesses to appear at hearing under Labor Code § 130. The WCAB previously has limited the WCJ’s power to make such an Order where electronic witness testimony is available, and where it would create substantial prejudice to the witness to require that they attend a hearing in person. (Simmons v. Just Wingin’ It, Inc., (2017) 2017 Cal. Wrk. Comp.P.D. LEXIS 48). In the Noteworthy Panel Decision of Simmons v. Just Wingin’ It, Inc., the WCAB reversed the Trial Judge’s decision to order an adjuster witness to appear in person. The Board concluded that video conference or Court Call testimony was appropriate where there would be a significant burden on defendant to produce the out-of-state witness in person. The WCAB did not explain the contradiction between the fact that their decision cited California CCP § 2025.31 as a basis to allow video testimony, yet it did not address the requirement that a deponent be present before the Court Reporter in person pursuant to CA § 2025.31(b). This may be a moot point given the Governor’s Orders suspending this requirement.
There is a great deal of ambiguity in the Board’s policy regarding Trial testimony in practice in the wake of the Governor’s Executive Order. While some Judges have allowed the parties to continue witness testimony until a time that the hearing can take place in person, others have advised the parties that they cannot object to telephonic witness testimony based on the Governor’s Executive Order. Where parties have objected to date, the WCJ typically has continued the Trial date to a time in the future when the Board may be open again for live testimony. As officials extend the shelter-in-place orders without a date certain for Board reopening, parties must now consider whether the potential pitfalls of telephonic testimony outweigh the potential delays in resolving the issue set for Trial.
We anticipate potential challenges to Governor Newsom’s Executive Order and individual WCJ’s decisions to allow telephonic Trial testimony on due process grounds. This may lead to helpful legal precedent in the long term, but the parties must consider whether the potential benefit of in person witness testimony outweighs the potential litigation costs and delays. Therefore, defendants may consider acquiescing to telephonic testimony where the issue is not critical, or where the issue is not likely to hinge on witness testimony. Defendants may want to object to telephonic testimony in high exposure cases, however, or where witness testimony may be more crucial to the case. Further, defendants should push for in-person testimony when possible where there are witness credibility issues. Even if a defendant may elect to waive objection to telephonic testimony, the parties should note objections to telephonic testimony on the Pre-Trial Conference Statement at the time of trial setting in order to preserve the argument.
Ultimately, this may soon become a moot point as local WCABs have been discussing implementation of video capability for all trial testimony.
Many medical health professionals transitioned to telemedicine in order to comply with the State’s recommendation that all non-essential health appointments be cancelled. While temporary delays in workers’ compensation appointments are usually feasible, there are long-term implications for both employees and employers where there are significant delays in medical care and evaluations. For example, employers may be unsure how to navigate complex return to work issues without updated work status reports; third party administrators may be unsure how to address on-going temporary disability issues without current work status reports; and injured workers’ might experience interruption in medications or other treatment that would enable them to improve and achieve permanent and stationary status. In addition, the parties could experience ongoing delays in resolution of issues in the face of cancelled medical-legal evaluations. Telemedicine offers a possible solution, but not without the potential for legal issues.
A threshold issue in telemedicine previously was the need for the patient (injured worker’s) verbal or written consent (CA Business & Professions Code §2290.5(b)). Governor Newsom issued an Executive Order suspending this requirement in the wake of COVID-19 concerns and shelter-in-place orders. A patient may decline to participate in this practice format, but they would do so at the risk of being unable to obtain medical care.
The DWC also amended its regulations to accommodate and facilitate the move to telemedicine by amending the fee schedule to allow the same payment structure for telemedicine visits as is allowed for in person visits. This creates an incentive for doctors to use telemedicine, and employees are able to maintain continuity of care using this method.
Medical-legal evaluations present a unique issue in the COVID-19 era. Previously, telehealth evaluations were permissible, though under limited circumstances. Labor Code § 4628 sets forth various requirements for the medical-legal examination and report preparation, including which functions must be performed by the physician who signs the report. Labor Code § 4628(a) states that “no person, other than the physician who signs the medical-legal report….shall examine the injured employee.”
In Beitpolous v. Cal. Corr. Healthcare Services, the WCAB upheld the WCJ’s decision to replace a panel where the medical-legal evaluation was conducted via telemedicine. (Beitpolous v. Cal. Corr. Healthcare Services (2018) 83 Cal. Comp. Cases 1078, 1087). The Board noted that the DIR previously allowed the PQME in question, Dr. Emad, to perform a PQME evaluation via telemedicine due to a reasonable ADA Accommodation and that the Labor Code does not explicitly allow or prohibit such evaluations. The problem in this case, however, was that the doctor who performed the applicant’s in-person physical examination, Dr. Tichio, did not sign the report, nor was the defendant aware of his examination, prior to the examination and report. The Board concluded that this violated the provisions set forth in Labor Code § 4628(a), warranting a new panel.
The decision in Beitpolous left several unanswered questions, many of which are only complicated by the COVID-19 situation. Medical-legal evaluators are not considered essential members of the workforce according to Governor Newsom’s stay-at-home order. The legislature has proposed a new provision, 8 CCR § 78, which would allow telemedicine evaluations for medical-legal appointments under certain circumstances. The proposed regulation also accounts for expanded timeframes in which doctors can perform the evaluations in question.
If 8 CCR § 78 is approved, the AME or QME could perform an evaluation via electronic interview where 1) the injured worker is not required to travel outside of their home to attend the telehealth appointment; 2) there is a medical issue the determination of which would address an AOE/COE dispute, or disputes involving termination of the applicant’s indemnity benefits or work restrictions; 3) there is an agreement to use telemedicine by the parties and the medical-legal evaluator; 4) the evaluator determines that the telehealth appointment is appropriate and consistent with ethical medical practices; and 5) the evaluator attests that the evaluation does not require a physical exam.
If one of the conditions is not met, the proposed legislation relaxes some of the regulations pertaining to AME/QME appointment timeframes in order to help the parties navigate the shelter-in-place order. Specifically, the proposed change expands the requirement that a QME set an evaluation within 60 days of the request date under 8 CCR § 31.3(e) to 90 days. Where scheduled evaluations needed to be rescheduled due to the shelter-in-place order, the regulation would allow doctors to reschedule for a date within 90 days of the date the shelter-in-place Order is lifted.
Further, the medical-legal evaluators will have additional time to complete reports under the proposed changes to the regulations. 8 CCR § 38 normally requires the evaluator to complete evaluation reports within 30 days and supplemental reports within 60 days. The new law would expand the reporting timeframes to 45 days and 75 days respectively.
Another option is for the parties to agree to an electronic interview between the injured worker and the evaluator, followed by an in-person evaluation when feasible. Some evaluators used this method, which is permissible, prior to the COVID-19 crisis. The applicant typically received an in-person examination with another qualified doctor contemporaneous to the electronic interview. Therefore, the proposed compromise still leaves the parties with the potential for delays in the COVID-19 era where shelter-in-place restrictions apply.
Although there is still ambiguity in much of the law with respect to how parties will be able to proceed with PQME/AME evaluations going forward, the proposed changes provide some guidance for both defendants and applicants so that the parties can avoid litigation over replacement panel issues. As a practical point, parties should consider whether delays in evaluation appointments or reports are the result of the evaluator’s own failure to comply with the Labor Code and Regulations, or the shelter-in-place restrictions. If the answer is the latter, a replacement panel may do little to alleviate delays, and telemedicine may offer a viable alternative.
The ever-changing legal landscape in the COVID-19 era continues to evolve as parties adapt to new challenges, rules, and regulations. Education and knowledge of relevant discovery statutes and orders will be key, as parties determine the best ways to move cases forward while balancing the parties’ respective rights. Employers should continue to work with carriers, third party administrators, and legal counsel to formulate a litigation strategy that adequately protects due process rights, but avoids unnecessary delays.
Kristin L. Bergesen, Esq. of our LFLM-Sacramento Office
Laughlin, Falbo, Levy & Moresi, LLP.