Citing the monetary savings and increased efficiency from using video and teleconferencing, the Industrial Claims Appeals Panel upheld their use in hearings. When most people think of court – they picture both sides present in a Courtroom, with a Judge up on the bench listening to both sides. As technology advances, Judges may ask the parties to appear by telephone, or – in some cases – by video teleconference.
Ladonna Schisler worked for Walmart Stores as a customer service manager. On September 25, 2011, she felt pain in her right shoulder after returning a line of four or five carts from the parking lot. Walmart denied her workers’ compensation claim, and she requested a hearing in Colorado Springs.
On the day of the hearing, the Administrative Law Judge stayed in Denver and used videoconferencing for Ms. Schisler and her attorney. Walmart and its attorney were in Denver in the same room with the Administrative Law Judge. Unfortunately, Ms. Schisler lost the hearing, and she appealed, claiming she was denied a fair hearing by having to participate by videoconference.
Specifically, Ms. Schisler claimed that the evidence she presented did not have the same persuasive effect as if she had been in person; Walmart put into evidence photos that she had not seen previously; and she and her counsel could not always hear what was said in the Denver location.
The Appeals Counsel was un-persuaded noting that although the transcript revealed a few technical difficulties, nothing revealed problems that prejudiced Ms. Schisler. For example, if something couldn’t be heard, the Judge asked that the question be repeated. Ms. Schisler’s response to questions did not appear confused. Her testimony did not appear to have any gaps in it.
The biggest problem to Ms. Schisler’s appeal was that she did not object to the videoconference hearing at the time of the hearing. It is well-settled that you cannot appeal a decision based upon an error that you did not raise at the hearing. The Appeals Counsel noted that neither Ms. Schisler, nor her attorney, ever objected to proceeding via videoconference.
What is left unresolved is whether a Judge can force an injured worker to proceed by videoconference even if that worker objects at the beginning of the hearing. Our experience is that – all things being equal – it is generally preferable to be at the hearing physically – particularly if the case hinges on who the Judge may find more believable.
Workers’ Compensation can be difficult, confusing, and very complex. Kaplan Morrell has helped thousands of injured workers since 1997 get the benefits they deserve. Find out more about our Denver Workers’ Compensation Attorney Services or Contact us here or call us at 303-780-7329 for your FREE CONSULTATION.
Case: Schisler v. Walmart, WC No. 4-872-358, August 23, 2013