Grinberg: Plan to Return to In-Person Trials Remains Unchanged

Tuesday, September 28, 2021 | 1

The community is abuzz with nervousness as we all watch the approach of Oct. 1.

Gregory Grinberg

Come Friday, all trials, lien trials and expedited hearings will resume in person. Recent discussions online seem to show almost unanimous agreement among attorneys and lien representatives expressing disapproval of the impending return to court. I share that concern. 

The San Francisco Workers' Compensation Appeals Board, for example, does not have windows in its courtrooms, and the hallways have windows that don’t open. The same is true of the Oakland WCAB.

As we return to in-person trials, parties and their attorneys are going to face significant challenges. At Friday’s public hearing, one lien representative voiced objections to returning to in-person trials for the purposes of lien claimants being able to prove their respective cases. While he has had very limited success getting applicants to appear for a lien trial to testify for AOE-COE, he has had no such problems when applicants have appeared via Lifesize to testify.

Judges are also about to face significant challenges. A Lifesize video stream offers a clear view of a witness’s face and a clear voice from the witness with which to gauge credibility. A witness wearing a mask presents problems both for identification and judging credibility. 

Finally, there is just the human element to consider: The pandemic is real and the virus is dangerous. That threat extends to everyone, with varying degrees, but with absolutely no guarantee of safety. 

Will some injured workers decide that risking exposure to COVID by taking public transportation to go to a crowded courtroom is not worth pursuing workers’ compensation benefits? 

Will some employees of the WCAB or the various attorney offices quit when faced with exposing their family members to the various new strains?

I have appeared for several expedited hearings and trials since the start of the pandemic. Though Lifesize certainly doesn’t offer the same feel as in the old days when we would all mill around and make deals at the board, the remote system we have had since March of last year provides all the essential functions we need while ensuring our safety.

Let’s hope for the best as we sail into October and that everyone remains healthy and safe. But nonetheless, I hope that reason will guide the state toward the conclusion that continuing as we have gone since March of last year is the best option.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.