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Getting Back to “Normal” Does Not Mean We Should Eliminate Remote Workers’ Compensation Hearings

As litigators across the region are seeing firsthand, local civil courts are assigning in-person trial dates at a rapid clip, attempting to make up for almost two years of sparse jury trials thanks to COVID-19. At the same time, local criminal courts have been focused on working through their own case inventories that have piled up because of the pandemic.

Justice delayed is justice denied, so I am sure my colleagues across the bar, no matter which side of the aisle they are on, are happy to see in-person jury trials return so their clients can resolve the legal uncertainty they face. Although remote jury trials took place during the pandemic, news reports suggested jurors were unlikely to be as engaged during remote trials as they would have been if they were in the jury box inside a courtroom.

While the frequency of in-person civil and criminal jury trials is slowly returning to normal, many workers’ compensation attorneys believe the new normal for adjudicative proceedings in workers’ compensation cases—known simply as workers’ compensation hearings—should be that those proceedings are remote by default, and only held in person when both parties agree they should be.

A permanent move to remote hearings would not be a shock to the Pennsylvania workers’ compensation system. Since March 2020, most hearings have been remote—and the system has not skipped a beat. The remote hearings have been a tremendous success because they’ve provided several benefits to the parties, their attorneys, and the system itself. Too many benefits, in fact, to justify returning to in-person proceedings.

The many benefits to remote workers’ compensation hearings

Before I go any further, I should note the flow of a Pennsylvania workers’ compensation claim differs from that of a civil or criminal claim. The difference most relevant here is that workers’ compensation hearings are always, essentially, bench trials.

After an employer or insurer declines to provide workers’ compensation benefits to an injured worker, the worker can file a Claim Petition to the Pennsylvania Department of Labor & Industry, Bureau of Workers’ Compensation seeking a court order that they are entitled to those benefits.

After discovery closes, a workers’ compensation judge presides over a workers’ compensation hearing, during which the judge will hear and receive the parties’ evidence. After the judge renders their decision, a party can appeal the decision to the Workers’ Compensation Appeal Board. If that appeal is unsuccessful, a party can file an appeal with the Commonwealth Court, and eventually, the Pennsylvania Supreme Court.

Because there are no jury trials in the workers’ compensation system, there are no concerns that remote proceedings could cause workers’ compensation attorneys or their clients to lose their ability to connect with jurors, and thus see their chances for a favorable verdict decrease.

Additionally, in a December 2021 opinion, Berardi v. Commonwealth, A21-0249, the Pennsylvania Workers’ Compensation Appeal Board held that commonwealth Workers’ Compensation Judges can determine the credibility of witnesses based on their demeanor during remote hearings as long as a judge “ha[s] a reasonable opportunity to see and hear the witness, and assess his or her demeanor.”

For these reasons, remote workers’ compensation hearings provide many benefits that the parties, their attorneys, and the workers’ compensation system can reap—with no real downsides.

Remote workers’ compensation hearings benefit the parties

Remote hearings benefit the parties to workers’ compensation disputes: injured workers and their employers or their employers’ insurers.

With remote hearings, injured workers are spared from having to leave their homes, get into their cars, and drive to one of the over forty locations across the commonwealth where such hearings take place. For some injured workers, that drive could be an hour or more. If a worker’s injuries cause them discomfort when sitting for long periods of time, or prevent them from doing so without severe pain, the car ride could be a painful start to a stressful day where they will have to give testimony under oath regarding their injuries. And, injured workers may need to make plans for covering their normal child care or elder care commitments during the period they’ll be tied up with a hearing.

Remote hearings also save injured workers’ families or friends from bearing the burden of having to drive them to their hearings and dealing with potential inconveniences doing so creates, such as having someone else pick up their kids from school or even missing out on hourly wages while accompanying their injured loved ones or friends.

Let’s not forget there are costs associated with driving to in-person hearings. The cost of gas, tolls (if driving on the Pennsylvania Turnpike), and parking can be the equivalent of a few meals’ worth of groceries. Remote hearings eliminate these expenses for injured workers without an income, or family members or friends who are living paycheck to paycheck, and allow them to allocate their limited resources toward feeding their families instead of toward commuting to a legal hearing that can just as effectively be conducted remotely.

(It might be tempting to dismiss concerns injured workers have about transportation to and from their hearings, but the issues our clients have traveling to their hearings are so prevalent that our firm has long provided our clients the services of a “client concierge” to assist them with getting to and from hearings.)

But injured workers aren’t the only parties to workers’ compensation hearings that benefit when those hearings are remote. For the reasons I explain below, employers and their insurers also benefit from remote hearings, particularly because of the increased efficiency their attorneys and the commonwealth’s workers’ compensation system enjoy thanks to remote hearings.

Remote workers’ compensation hearings benefit the parties’ attorneys

Many workers’ compensation attorneys—no matter who they represent—get used to lunch on the road and taking part in conference calls while they drive. That’s because with the aforementioned forty hearing locations across the commonwealth, if a workers’ compensation attorney will attend a hearing in person, they’ll probably be driving to it. With traffic, even a “local” in-person hearing could lead to a few hours on the road—and that’s before factoring in the length of that hearing.

Remote hearings put an end to this seemingly nonstop driving. Instead of being behind the wheel, workers’ compensation attorneys can spend that time working on their clients’ cases from the comfort of their home or firm’s office. They could also attend multiple hearings in a day across the commonwealth without worrying about whether they could drive the distance between the hearings’ locations in time for the later hearing(s) to start on time.

This results in increasing the attorneys’ efficiency by allowing them to get more substantive legal work done in the same amount of time. This is especially helpful to solo practitioners and attorneys in small workers’ compensation practices with few or no colleagues.

This increased efficiency also gives defense attorneys’ clients more bang for their buck. Instead of being billed for the time their attorneys spend driving, employers and insurers will be billed for substantive work their attorneys are doing on their cases.

(My friends in the workers’ compensation defense bar would tell you they typically have so much work they’re juggling that they’d gladly trade billing potentially reduced hourly rates while driving for billing their full hourly rates while tackling client work at their home or firm’s office.)

Remote workers’ compensation hearings benefit the efficient adjudication of workers’ compensation disputes

With in-person workers’ compensation hearings, inefficiency is baked into the system. Hearings get delayed or have to be postponed because of attorneys’ schedules. As a result, injured workers, employers, and insurers have to wait longer to resolve workers’ compensation disputes and the legal uncertainty that comes with them.

Remote hearings introduce more efficiency to adjudicating workers’ compensation disputes. Hearings no longer have to be rescheduled because the parties or their attorneys cannot travel to them. At the same time, more hearings can take place within a given period of time because attorneys need not travel to them. Thus, the Bureau of Workers’ Compensation and its workers’ compensation judges can more quickly adjudicate workers’ compensation disputes. With this increased speed comes an increased number of adjudications, which helps eliminate backlogs of cases from the judges’ dockets. This, in turn, provides the parties involved in the disputes a quicker sense of certainty about their disputes and the remaining options for resolving them.

A compelling case for remote workers’ compensation hearings

The COVID-19 pandemic forced the legal industry to catch up to the way other industries do things in the 21st century. I have yet to find an attorney who wasn’t thrilled to avoid flying multiple hours each way for a 25-minute status conference, or who didn’t appreciate the efficiency gains and flexibility they experienced by working from home at least occasionally.

As life begins getting back to normal, some COVID-19-inspired legal innovations will probably return whence they came, never to be seen again. Remote jury trials, for example, will hopefully become a relic—at least until jury trials in the metaverse become commonplace.

But remote workers’ compensation hearings, like remote status conferences and work from home policies, bring with them an overwhelming set of benefits that easily outweigh any potential harms. Even as society attempts to restore many of the in-person interactions COVID-19 took away from us, the Pennsylvania Department of Labor & Industry, Bureau of Workers’ Compensation should not let remote workers’ compensation hearings fade into history.

They are a win-win-win for the parties involved, their attorneys, and the commonwealth’s workers’ compensation adjudication system. They should permanently become the default method for workers’ compensation hearings unless both parties agree to hold a particular hearing in person.

Jerry M. Lehocky is a founding partner of Pond Lehocky Giordano LLP, the largest workers’ compensation and Social Security disability law firm in Pennsylvania. He can be contacted at jlehocky@pondlehocky.com.

Reprinted with permission from the April 26, 2022 edition of The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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