In an unexpected Valentine’s Day surprise, the ongoing uncertainty relating to in-person hearings versus virtual hearings may have been clarified by the Pennsylvania Workers’ Compensation Appeal Board’s Opinion and Order in Gerald Steibler v. PHI (A22-0486, February 14, 2023).  In a unanimous Opinion, the WCAB held that a Workers’ Compensation Judge abused their discretion in denying the claimant’s request for a live hearing.  In doing so, the WCAB held that the WCJ violated the due process rights of the claimant, and reversed and remanded the matter to the WCJ to hold a live hearing for the presentation of claimant’s testimony.

The initial hearing with respect to employer’s Modification Petition was held in September 2021, at which time Governor Wolf’s Pandemic Emergency Disaster Declaration and the implication of strict compliance with regulations related to COVID-19 concerns had expired.  Claimant requested that all testimony be presented live, rather than by video, which was denied by the WCJ citing COVID-19 concerns. Ultimately, the employer’s Modification Petition was granted, and the claimant appealed to the WCAB.

In holding that the WCJ violated the due process rights of the claimant, the WCAB referenced Section 131.54, which states that: “At the discretion of the judge, the hearings may be conducted by telephone or other electronic means if the parties do not object.” Because there was an objection to video testimony, the WCAB stated that the WCJ did not act in compliance with Section 131.54.  The WCAB then acknowledged that Section 131.3(a) provides the WCJ with the ability to waive or modify the rules for “good cause”.  However, the WCAB held that any lingering effects of the pandemic was not sufficient “good cause” to deny the claimant’s request for a live hearing, resulting in a denial of due process.

The Steibler Opinion essentially holds that the pandemic is no longer a “good cause” to deny a party’s request for a live hearing for the presentation of witnesses. Although Steibler arose in the context of a claimant’s request for a live hearing, the right to due process extends to all parties. As a result of the Opinion, it is anticipated that there will be an increase in live hearings – at the request of parties and judges.  The method for presentation of evidence, whether it is live or virtual, is a decision to be made after discussion with your attorney as there are benefits to each approach. Strategy will vary based on a myriad of factors unique to each case, particularly including venue. Regardless, the new clarity provided by Steibler is helpful as we transition from the pandemic to a new normal in Pennsylvania workers’ compensation proceedings.