As all workers' compensation practitioners know, our practice has been forever changed by the COVID-19 pandemic. Although the Pennsylvania workers' compensation bar took the COVID-19 pandemic in stride, with tremendous effort and effectivity on the part of the bureau and its director, our practice has been slow to return to the pre-pandemic normal. While Pennsylvania Bar Association events, continuing legal education programs, and even client and law firm functions have returned to in-person, the majority of workers' compensation hearings and depositions are still being conducted virtually. This has posed the question of whether the practice of workers' compensation will ever return to how it was pre-pandemic.

The topic of virtual versus in-person hearings and depositions was recently addressed by the Workers' Compensation Appeal Board opinion in Steibler v. PHI, No. Appeal Case: A22-0486, 2023 (Pa. Work. Comp. App. Bd. Feb. 14, 2023). The Workers' Compensation Appeal Board held that the workers' compensation judge (WCJ) had abused her discretion via a violation of the claimant's due process rights when she cited lingering COVID-19 concerns as the basis for denying the claimant's request that all testimony, including the testimony of the claimant, be completed via an in-person hearing, as opposed to a virtual hearing. The Workers' Compensation Appeal Board explained that the reason the WCJ abused her discretion is grounded in Section 131.54 of the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges, which states, "at the discretion of the judge, the hearings may be conducted by telephone or other electronic means if the parties do not object." 34 Pa. Code Section 131.54. The Workers' Compensation Appeal Board reasoned that "because Section 131.54 does not allow the WCJ discretion to deny that request when there is an objection to the video hearing, we conclude that the WCJ acted contrary to the specific regulation governing the manner and conduct of hearings before the WCJ."

The Workers' Compensation Appeal Board went on to acknowledge that Section 131.3(a) of the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges provides "the judge may, for good cause, waive or modify a provision of this chapter, except as otherwise provided in Sections 131.59b(a) and 131.202 (relating to mandatory mediation; and first hearing information and stay), upon motion of a party, agreement, of all parties or upon the judge's own motion." See 34 Pa. Code Section 131.3(a). However, the Workers' Compensation Appeal Board stated that lingering COVID-19 concerns did not constitute "good cause" because the claimant made the request during a hearing that was held on Sept. 28, 2021, at which time the lingering effects of the COVID-19 pandemic were insignificant.