Virtual or in-person: Where do we go from here?
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.
Interestingly, the Workers’ Compensation Appeal Board also acknowledged that video hearings generally provide adequate due process protections, but the promulgation of Section 131.54 altered the due process framework in the sole context of Pennsylvania workers’ compensation.
Although Steibler involved the denial of a claimant’s request for an in-person hearing, the right to due process extends to all parties. As such, workers’ compensation defense attorneys now have the ability to request an in-person hearing which the judge must grant in order to avoid a violation of the due process rights of the employer or insurance carrier. Although not yet certain, it is anticipated that there will be an increase in the number of in-person hearings and depositions being held across the state of Pennsylvania.
The potential return to in-person hearings and depositions instituted by Steibler has forced workers’ compensation firms to weigh the viability of the virtual medium against the economic realities involved in conducting its workers’ compensation practice in-person. The preference of conducting virtual hearings and depositions versus the preference of conducting in-person hearings and depositions often differs depending on whether the firm practices in the western region of the state of Pennsylvania or the eastern region of the state of Pennsylvania. The reasons for the varying preferences can be globally linked to differences in the size of the geographic area covered by the firm and the population of the geographic area covered by the firm, which directly impacts how a particular office may want to proceed.
First, firms in the eastern region must consider profitability when hearings are conducted in-person. Many carriers will not reimburse a defense attorney for their mileage and travel time if the attorney is required to travel under one hundred miles. Due to the fact that defense attorneys in the eastern region typically cover a smaller geographic area, the majority of the hearing locations are under the one hundred mile threshold. Therefore, the defense firm faces a potential financial loss each time an attorney must travel to and from a hearing because that attorney does not receive payment for their time, and instead, often must take on additional work to compensate for the billable time lost to travel.
Unlike the eastern region, defense firms in the western region are typically less constrained by travel restrictions because of the broader area. Most hearing offices will eclipse the one hundred mile threshold and a loss of time and expense is not nearly as concerning. However, this must also be weighed against an inability to cover all hearings given the broad area.
The use of in-person hearings can also be strategic in more rural areas and western Pennsylvania. Virtual hearings allow attorneys to take on a higher case load or pursue claims that would have been geographically prohibitive in the past. If hearings were to return to an in-person setting, handling a larger case load would pose logistical problems and this issue is more detrimental when the attorney is not paid on an hourly basis. If the majority of hearings are requested to be in-person, some firms would have a difficult time with ensuring that all in-person hearings are attended. Accordingly, an increase in requests for in-person hearings would force claimants’ attorneys to be more selective in retaining clients. In-person hearings also likely helps the local attorneys in rural areas as it helps create a geographic barrier to entry that does not exist with virtual hearings. The presence of virtual hearings likely benefits those in bigger firms headquartered out of Philadelphia and Pittsburgh.
However, for eastern region defense attorneys the opposite is true, and virtual hearings can be the more strategic option. Virtual hearings allow for defense attorneys to be more productive with fewer attorneys. However, the potential for a larger case load does not pose the same issue as it does for attorneys in the western region due to the fact that eastern region defense attorneys cover a smaller geographic area and would more easily be able to ensure that all in-person hearings are attended by consolidating hearings that are close in time and geographic proximity for a single attorney to attend.
The western region practice also differs from the eastern region in the frequency of in-person depositions that are currently taking place. On the western side of the state, medical and vocational expert depositions have largely returned to in-person depositions, as very few experts will agree to participate in a virtual deposition. From the perspective of a defense attorney in the western region, in-person depositions are preferable from a logistical standpoint because the defense attorney has the ability to review the expert’s file directly with the expert, without relying on technology. Although the majority of experts and defense attorneys have the technological capabilities to conduct the pre-deposition meeting and deposition virtually, technology can be unreliable, which is further compounded by the rural nature of the Western Region.
In contrast, on the eastern side of the state, medical and vocational expert depositions have remained almost exclusively virtual and are either conducted via telephone or Zoom. For defense attorneys on the eastern side of the state, especially those whose firms are located in or near the city of Philadelphia, conducting medical and vocational expert depositions virtually can be preferable. By conducting the medical and vocational expert depositions virtually, defense attorneys can avoid the high travel times for small distances that come with practicing in a highly populated urban area. For example, a defense attorney would be able to avoid the unending traffic of I-76. Although in-person pre-deposition meetings are still sometimes beneficial (and even necessary), defense attorneys on the eastern side of the state have adapted to conducting the meetings virtually and are able to effectively utilize technology, such as screen sharing, to review the file with the expert.
Unlike vocational and medical expert depositions, both the western and eastern sides of the state agree that conducting lay witness testimony in-person is preferable to the witness testifying virtually. From a defense perspective, a claimant testifying in-person is not only preferable, but beneficial to the litigation. A claimant’s credibility is a large factor, potentially the largest factor, in the litigation and credibility determinations are generally not subject to appeal. As such, defense attorneys want to ensure that the judge has an opportunity to observe the claimant’s tone, behavior, and mannerisms, which are often the crux of credibility determinations. Seeing a witness’ face, or at times just their forehead, is not a true and fair assessment of the full demeanor of a witness. In fact, many times a truly credible claimant will be even more impactful when testifying in-person, which allows the employer and/or insurance carrier to make a more educated decision regarding settlement.
Moreover, any witness testifying virtually, even on video, poses credibility issues for several other reasons. First, conducting the witness testimony via telephone and Zoom poses a risk that the witness’ testimony has been tampered with or manipulated. For example, another individual could be present in the room with the witness to guide their testimony or feed them information unbeknownst to the opposing attorney. Further, the testimony of other potential witnesses, such as family members or co-workers, could be made impractical because the potential witness’ testimony has been prejudiced by being present in the same room as the witness while he is testifying. Finally, a witness that is testifying via telephone or video is able to discreetly refer to documents and records without anyone’s knowledge, which also would impermissibly enhance the accuracy and quality of the testimony. While we attempt to address these issues in the virtual setting, the only true safeguard is for the witness testify in-person.
A subjective consideration for all practitioners across the state is whether we actually feel like attorneys while practicing behind a computer monitor day in and out. Once lauded for our ability to nimbly adapt to the virtual world during the COVID-19 pandemic, the commentary has shifted to workers’ compensation practitioners being perceived as “TV” attorneys. Many will quickly dismiss the calls for in-person events as being financially motivated by law firms, but these authors question if anyone is really billing less. Alternatively, is the fight to remain virtual motivated by a desire to do less work while attempting to achieve the same results? For most attorneys, the inclination to return to in-person emanates from a desire to practice law and effectively serve our clients, regardless of the time and financial realities.
A consideration for the entire workers’ compensation bar is the impact a virtual practice will have on the younger generation of attorneys. Will younger attorneys want to enter a practice where they do not have frequent opportunities to be in a courtroom? A virtual practice will inevitably turn away some young attorneys who want to be in a courtroom presenting oral arguments and cross examining witnesses. The issue is will a virtual practice make it hard for firms to find and keep young lawyers? Talent retention may become an issue for firms on either side.
Moving forward, it appears that the practice of workers’ compensation in the state of Pennsylvania will continue to rely on a hybrid approach, and regardless of regional preferences, all workers’ compensation attorneys will need to be prepared to proceed with hearings and depositions both in-person and virtually. Ultimately, there will never be a one size fits all rule or perspective on this issue. Every claim is different, and every party and their counsel should have the right to dictate the strategy it deems most effective to achieve its litigation goal. Accordingly, all practitioners will need to consider the impact of virtual and in-person hearings on clients, cases, and careers.
Danielle M. Parks is an attorney in the workers’ compensation group in the Pittsburgh office at Burns White. Parks assists third-party administrators, insurance carriers, and self-insured employers in Pennsylvania achieve favorable solutions to their workers’ compensation claims.
Samantha Day Weigand is an attorney in the workers’ compensation group in the Philadelphia office at the firm. Weigand focuses her practice on defending workers’ compensation claims for third-party administrators, insurance carriers, and self-insured employers in Pennsylvania.