Dealing with Testimony in a Virtual Hearing
As the virtual roll-out continues and more locations have become virtual, the bugs are getting worked out. We have appeared virtually on several occasions and have had only one day of delays due to technical issues.
There are some types of hearings and scenarios that the virtual process is ready-made to address: C-8.1 hearings for minor treatment disputes, production hearings that will only be adjourned for depositions, and a Reserved Decision or 32 hearings come to mind. These types of hearings are often short, require little in the way or interaction with the opposing side, and very little is said on the record. These types of hearings do not therefore often require extensive review of the transcripts. A problem arises however, when a transcript or preservation of the record is needed.
The Board made one other major change when they moved to virtual process, the removal of a stenographer. Rule 302 (2) of the Department of State Administrative Services states:
The agency shall make a complete record of all adjudicatory proceedings conducted before it. For this purpose, unless otherwise required by statute, the agency may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or electronic recording devices. Upon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he may request. Except when any statute provides otherwise, the agency is authorized to charge not more than its cost for the preparation and furnishing of such record or transcript or any part thereof, or the rate specified in the contract between the agency and a contractor if prepared by a private contractor.
No doubt the Board believes it is satisfying this rule by providing “electronic recording devices.” The problem is the former Digital Audio Recording system has not been improved. Not only was the audio recording often poor and not accurately able to record multiple speakers at once, but it was not certifiable by a stenographer as they were not present during the proceeding. What this leaves us with is a hearing without a reliable record.
The easiest solution is to request testimony outside of the hearing and depose any witnesses with a stenographer, but that creates another problem. Few, if any, judges would have previously allowed a claimant to testify by phone in a controverted claim, an LWEC or labor market hearing, or a Section 114-a fraud trial. Very few claimants’ attorneys would even dare ask and the reason was obvious: credibility. How can a judge ascertain credibility of a witness, when the witness is not in from of him or her?
This is the catch-22 the virtual hearing process creates and an issue that we have to navigate. We now have to make a choice: take testimony in front of a judge and roll the dice on whether the record is accurate and know that it is non-certifiable, or depose your witnesses off-calendar with a certified stenographer, but not have the witness or claimant before the judge while testifying. We can no longer do both.
This process will obviously create problems at the Board and Appellate Division levels with transcripts. The second part of 302(2) possibly creates some language for carriers (and claimants) to fight this new system:
Upon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he may request.
We are confident the perfect set of facts will rise sooner than later to fight the lack of a certifiable in-hearing record. For right now, remember you have the right to ask for whichever method of testimony you feel will better benefit your case.