Workers’ Compensation · Primary-source case analysis
Perez: A Hearing Request Can Satisfy the Electronic-Testimony Petition Rule
Tyson Perez claimed cumulative injury from professional baseball employment. The Chicago Dogs challenged California personal jurisdiction and offered evidence from their chief operating officer, Trish Zuro. Two questions arose: Could her affidavit be admitted, and could she testify by telephone so the parties could question her? The WCJ excluded the affidavit after objections concerning discovery and cross-examination, and denied remote testimony for lack of a prehearing petition. Those were different evidentiary requests, not one interchangeable form of proof.
The request had to be judged by substance
The Board preliminarily concluded that a request made on the record at the beginning of the hearing, with an opportunity for every party to respond, satisfies the electronic-testimony petition requirement. The August 14 correction identifies the relevant provision as Rule 10817(a), correcting a reference to subdivision (c). This addressed the request to hear testimony; it did not automatically admit an untested affidavit. Perez, slip opinion, page 10 and appended correction, pages 14–15.
Due process favored hearing the witness
A fair hearing includes calling and cross-examining witnesses, inspecting exhibits and offering rebuttal. The Board preliminarily viewed a fair opportunity to hear a witness unable to appear personally as good cause for electronic testimony. Live questioning could allow the other parties to test the evidence; an affidavit alone would not provide that opportunity. The ruling did not dispense with a fair hearing for the opposing parties. Perez, slip opinion, pages 7–10.
The record could not remain one-sided
The WCJ relied on the worker’s testimony about recruitment contacts while he was in California. The team sought to present evidence about its California contacts in response. The Board emphasized the opportunity to present and test that evidence, and the need for an adequate record. It did not find that Zuro’s account was true or that it defeated personal jurisdiction. An opportunity to offer rebuttal is different from winning the disputed factual issue. Perez, slip opinion, pages 3–5, 7–10.
Reconsideration was granted, not finally decided
The August 12 en banc order granted reconsideration and expressly deferred a final decision after reconsideration. Its Rule 10817 and due-process conclusions were preliminary, although the official en banc listing identifies the decision as binding precedent. The August 14 order corrected rule references; it did not turn the grant of reconsideration into a final jurisdictional ruling. Perez, slip opinion, pages 2, 12–16. For a current matter, obtain the actual request, ruling and subsequent orders rather than treating this order as a final jurisdictional victory.
Key takeaways
- Identify remote witnesses before trial.
- Make the request on the record and state why personal appearance is impracticable.
- Give every party an opportunity to respond.
- Distinguish an order granting reconsideration from a final merits decision.
Prepare remote witness testimony requests
Our firm can assist in preparing procedural petitions and hearing records for electronic witness testimony in WCAB proceedings. Bring your trial setting orders, witness location details, and relevant evidentiary filings. Call (949) 343-9735 or email office@mishrax.com.