The Goa Decision and Due Process: "the Process That Is Due Under the Circumstances"

• Publication year: 2020
• Author: Randy H. Pollak, Esq. Thousand Oaks, California

The Goa Decision and Due Process: "The process that is due under the circumstances"

Randy H. Pollak, Esq. Thousand Oaks, California

Notice and an opportunity to be heard are vital hallmarks of due process. In the context of litigation, throughout the history of the United States, these cherished rights, and values, have classically included an opportunity to cross-examine witnesses, and, in normal times (such as times without a pandemic), to do so in person. The intrinsic value of such an in-person opportunity is not easily measured, but typically, both litigants and the courts have identified that the ability to assess the credibility of witnesses by seeing them face to face is an essential benefit in reaching a just result in the case.

All that sounds great, but in the time of COVID-19, there are limits. The recent Significant Panel Decision in Limin Goa v. Chevron Corp. (ADJ 10024232) demonstrates that pointedly when addressing the question of the due process right of a party to insist on an in-person trial in a workers' compensation case. Specifically, the WCAB stated, "Due process is the process that is due under the circumstances as we find them, not as we might wish them to be." In that decision, the WCAB goes on to provide guidance that the default standard, at least for the foreseeable future, is a virtual trial. This article reviews that decision and provides a reasonable estimate of its application in other processes in the workers' compensation system, including but not limited to QME telemedicine examination disputes.

The Goa Decision

In Goa, the applicant first provided in-person testimony on March 10, 2020, and was subject to direct and cross-examination. The trial wasn't completed in one session, so it was continued to June 9, 2020. By that time the COVID-19 pandemic was in full swing and all WCAB district offices were doing only remote appearances by phone. Moreover, on May 7, 2020, Governor Gavin Newsom issued Executive Order N-63-20, providing that:

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....

Governor Newsom's Order included some specific requirements for conducting electronic hearings, stated as:

1. Each participant in the hearing has an...