Michelle Dilley v. PNC Bank, (IAB #1372654, decided 1/31/13)

The employer is not excused from bringing its fact witnesses to a hearing for live testimony where the excuse offered is that they must travel from Pittsburgh, PA to Delaware.

This case involved a motion presented by the employer to the Board seeking permission for two of its fact witnesses to testify telephonically at the upcoming Board hearing rather than appearing live. It appears that claimant's counsel was opposing this motion, although the reasons for that opposition are not specified. The Board held that the witnesses were required to appear live at the hearing, and the motion was, therefore, denied. The Board's reason was that the only basis offered by the employer for the request was the distance the witnesses must travel to appear at the hearing. There was no indication that the witnesses were physically unable to appear at the hearing, and the Board noted that credibility would be a significant factor in its determination of the case.

Section 2348 of the Act provides in Subsection (i) that medical testimony of an expert may be presented either by deposition, by live testimony at the hearing, by telephonic testimony at the hearing or by videotape. Further, Board Rule #14 provides that the rules of evidence applicable to the Superior Court shall apply to Board hearings, but that the Board in its discretion may disregard any customary rules of evidence and legal procedures so long as its doing so does not amount to an abusive discretion. In short, the Board has discretion to handle these types of motions as it sees fit.

Case Law Alerts, 3rd Quarter 2013