The applicant Jaime Simmons, sustained injury on March 22, 2014 to his right foot and ankle while in the employment of defendant Just Wingin It, Inc. insured by Procentury Insurance Company.
The case was set for trio! to resolve the issue regarding how TI’D was paid to the applicant. After discussion with the parties at the MSC it was clear that there was a disagreement on the method of providing payment to the applicant such that the adjuster would be required to testify at tho upcoming trial.
The WCJ noted that “the defendant cites multiple ways in which the adjuster could be allowed to testify at trial. However, the defendant fails to appreciate that the witness’ credibility is being assessed at trial and it is often difficult for the trier of fact to asses credibility if the witness is not present in the courtroom while providing testimony.”
Thus the WCJ ordered that defendant’s claims adjuster, who lives in Illinois, must appear in person for trials. The employer filed a timely, verified Petition for Removal seeking relief from this order.
Defendant argues that it would suffer substantial prejudice if it were required to produce the claims adjuster at trial “where alternative means of obtaining testimony exists,” noting . that verbal testimony can be obtained by courtcall or video conferencing.
Defendant also points out that the purpose of taking the claims adjuster’s testimony would be to elicit the claims adjuster’s verbal response, and the claims adjuster’s “physical presence adds nothing to the verbal testimony that he/she may provide.” Defendant states that producing the claims adjuster in person for “one or more hearings” would place a “significant burden” on defendant, in addition to the additional costs required.
The WCAB granted removal in the significant panel decision of Jamie Simmons v Just Wingin’ It, Inc. and ProCentury Insurance Company.
“We agree with defendant, and see no reason not to use the alternative means of obtaining the claims adjuster’s testimony. We further note that the California Code of Civil Procedure explicitly provides for the taking of depositions by remote electronic means, as do the California Rules of Court. (Cal. Code Civ. Proc. § 2025.310(a)
“A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means”; Cal. Rules of Court, rule 3.1010(a)- (b). “Any party may take an oral deposition by telephone, videoconference, or other remote electronic means [ … and] [a]ny party may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means[.]”),