The case of Thomas Perez was initially set for a priority conference on June 7, 2022. At that time, the case was set for trial commencing on November 15, 2022, on the issue of employment  On June 24, 2022, defendant SCIF filed a Petition to permit remote witness trial testimony of defense witnesses Jeff Hinkley and John Eastman.

On June 29, 2022, the WCJ issued an Order denying defendant’s petition on the basis that no good cause had been shown for allowance of such remote testimony. No evidence was identified, nor was any record made or testimony taken prior to denial by the WCJ of the Petition.

Then, on July 7, 2022, defendant filed a Petition for Removal of the June 29, 2022 Order. On November 30, 2022, the WCAB issued an “Opinion and Order Granting Petition for Removal and Decision After Removal,” remanding the matter back to the trial judge to make a record, in order to enable us to understand the basis for the WCJ’s decision per Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc).

A trial hearing took place on April 25, 2023, at which time the sole issue to be decided was whether Mr. Hinkley should be granted a remote appearance for purposes of testimony in any future trial related to the case. The stipulations of the parties included the statement that there were no objections to the remote testimony of Mr. Hinkley.

On June 12, 2023, the WCJ issued the F&O denying SCIF’s petition on the basis that defendant failed to demonstrate good cause. So, once again filed a Petition for Removal, which was granted, and the WCJ’s decision was rescinded in the panel decision of Perez v Cleanco Construction et.al, -ADJ2030301 (April 2024).

Any decision of the WCJ granting or denying a petition to allow an electronic appearance or electronic testimony must be reduced to writing and be based upon an adequate record, after providing the parties an opportunity to be heard, in the same manner as any other order touching on the parties’ due process rights. (Lab. Code § 5313; Cal. Code Regs., tit. 8, § 10833; Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, citing Evans v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

A party intending to appear electronically may seek permission to appear electronically at a hearing pursuant to WCAB Rule 10816, by filing a petition pursuant to WCAB Rule 10510. A witness seeking permission to testify electronically may likewise file a petition pursuant to WCAB Rule 10817. The person seeking to appear electronically or testify electronically must demonstrate good cause.

A stipulation between the parties constitutes such good cause, and obviates the need to provide an opportunity to be heard or to create a record. (Cal. Code Regs., tit. 8, § 10835.) Here, the parties stipulated that Mr. Hinckley could testify electronically. By doing so, the parties demonstrated good cause. Thus, as explained below, in order to disregard the stipulation, the WCJ was required to demonstrate good cause to set it aside.

Stipulations are binding on the parties unless, on a showing of good cause, the parties are given permission to withdraw from their agreements. (County of Sacramento v. Workers’ Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1121 [65 Cal.Comp.Cases 1] (Weatherall).) As defined in Weatherall, “A stipulation is ‘An agreement between opposing counsel . . . ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,”(Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate need for proof or to narrow range of litigable issues (Black’s Law Dict. (6th ed. 1990) p. 1415, col. 1) in a legal proceeding. – (Weatherall, supra, at p. 1119.).

It is true the Appeals Board has the discretion under section 5702 to reject factual stipulations. (See Frankfort General Ins. Co. v. Pillsbury (1916) 173 Cal. 56, 58-59 [159 P. 150]. However, the Appeals Board should not reject a stipulation clarifying the issues in controversy absent good cause. (See Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 790-791 [52 Cal.Comp.Cases 419]; Weatherall, supra, p. 1119; See Bailey v. Taaffe (1866) 29 Cal. 422, 424 [exercise of discretion should not be capricious].)

“We see no basis on the existing record for the WCJ to have rejected the stipulation. The WCJ’s rejection of the agreement at trial to allow the witness’ remote testimony was stated as ‘[i]n order to properly assess the credibility of a witness, a trier of fact (as well as the other parties in a case) is best served by being able to observe the witness in ‘real life’ rather through a monitor or on a phone.’ (Report, p. 7.) Based on our review, we do not believe that this is a sufficient reason to reject the stipulation.”

Thus, the Order denying defendant’s petition to permit remote testimony of Jeff Hinkley in light of the stipulation of the parties at trial resulted in substantial prejudice and irreparable harm to defendant, as well as unnecessary delay.