As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf. This announcement was made on June 12, 2020, to take effect June 19, 2020. As a practical matter, we have yet to have an in-person hearing scheduled. Regular hearings continue to operate by telephone conference, with video conference as the other option.
There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness. Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms). On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video. I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes. Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client. This would not be an issue with video conference.
While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation. For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available. This seems to be the most reasonable alternative.
With regard to the appellate world, the Workers’ Compensation Appeal Board (WCAB) made an announcement on July 24, 2020 that oral argument would again be allowed, but that such argument would take place by video conference. No in-person argument will be scheduled, at least not as of when the WCAB next hears cases in Philadelphia on August 4th, 5th and 6th.