The Commonwealth Court of Pennsylvania issued a December 13, 2017 opinion in Brinkley v. Workers' Compensation Appeal Board (US Airways, Inc.), Case No. 1182 C.D. 2016 (2017).
The employer/carrier sought and obtained a judicial determination terminating compensation benefits. At trial, there was a disagreement between a treating physician and an independent medical examiner. The injured worker sought review by the Workers’ Compensation Appeal Board (Board), which affirmed the termination of benefits.
Procedurally, there was a hearing. Thereafter, the two parties "submitted their respective briefs, proposed findings of fact, and proposed conclusions of law." There was some issue with receiving the employer/carrier's materials, and the workers' compensation judge's staff requested "a copy of Employer’s brief in Microsoft Word format." The WCJ never "requested a copy of Claimant’s brief in Microsoft Word format." The employer’s counsel "complied with the request by email (forwarding the Word document) but did not copy the email to the Claimant’s counsel."
At a later meeting between the two counsels, in an unrelated matter, the employer's "counsel mentioned that to claimant’s counsel." The claimant's counsel requested a copy of the email. The published opinion is somewhat unclear regarding whether the email was thereafter received by the claimant's counsel. However, it is clear Claimant's counsel received the brief in some manner but was unable to open the document.
Regardless, based upon the occurrence of the email communication communication between counsel and the judge's office, the claimant "filed a motion for recusal, alleging that the judge violated the code of ethics" in the Workers’ Compensation Act (Act). The claimant alleged the judge "engaged in ex parte communications, improperly delayed issuing a decision, and at all times demonstrated an unfair bias in favor of Employer."
The judge "held a brief hearing to consider Claimant’s recusal motion," and thereafter "issued an order denying" the motion. The conclusion was that "the contact with Employer’s counsel was clerical in nature and not ex parte, as it was not a communication “as to the merits of the case.” The judge "explained that Claimant was not asked for a copy of his brief" because the judge "was already in possession of Claimant’s brief."
The case proceeded to an intermediate appellate review by the Pennsylvania Board, which has been part of that state's system for its 100-year history. The Board decision is not available publicly, but it provides facts not found in the court opinion. According to the Board, there were two judicial contacts with defense counsel, (1) "office personnel contacted defense counsel" and later (2) the judge "left a voicemail message for defense counsel," all regarding the brief. The Board noted that on this foundation the motion for "recusal" was filed, but curiously, "no formal motion for recusal has been made a part of the record." It is critical for attorneys to strive for a complete record. It also noted that the employer had filed a "response to the recusal motion."
The Board noted the Claimant's perceived bias in the judge's conclusion, denial of the recusal, and in closing the record without further opportunity for the Claimant to testify more regarding the merits of his claims. The claimant complained of "inordinate delay in . . issuing the final decision, and that the denial of benefits was "an act of retaliation for filing the motion for recusal."
Regarding the appeal of the recusal denial, the Court noted that the Act requires:
the WCJ to avoid impropriety and the appearance thereof in all activities and to perform duties impartially and diligently,
and
to avoid ex parte communications in a contested, on-the-record matter before the Department of Labor and Industry.
The appeal in the Commonwealth Court addressed two points: (1) that the denial of benefits was in error (should have relied on the treating doctor), and (2) that the judge should have granted the "recusal" (technically, a motion for "disqualification," as "recusal" refers to a voluntary or sua sponte act of the judge). In Florida, this is specified in Rule of Judicial Administration, Rule 2.330 ("may move to disqualify . . . "). The discussion of the first point is interesting legally, particularly in the manner that recognition of "work-relatedness of an injury" can affect the weight of evidence in Pennsylvania.
The second point, however, is more interesting. The Court disagreed with the claimant and concluded that the denial of recusal or disqualification was not an error. The Court reiterated the Board's conclusion that a judge "is presumed capable of recognizing in herself the symptoms of bias and prejudice." That presumption, in Pennsylvania, is overcome "on the record."
There was also the allegation that the WCJ demonstrated unfairness to him throughout the proceedings." As to this, the court noted that "an adverse ruling does not, by itself, indicate partiality." While there may nonetheless be allegations of bias, if “there is no support in the record," then those allegations are "insufficient to rebut the presumption."
Addressing the voicemail left for defense counsel, the court, the court concluded that "the WCJ’s voicemail message to the employer" and the resulting "employer’s responsive email" did not establish "a relationship between the" judge and counsel.
The delay in the ruling is an interesting allegation. The hearing was in March 2012. After the hearing, "claimant's medical deposition" and an IME were to be concluded within 135 days. Another hearing was held on July 17, 2012 (121 days later) and the judge "expected the evidentiary record to close" in 90 days. Another hearing was held on April 23, 2013 (280 days after the 07/17/12 hearing), at which time the claimant's counsel did not submit "a medical deposition," but requested another hearing. Instead, the judge closed the record and afforded the parties time to submit briefs (claimant given 45 days and defense 30 days thereafter; 75 days expired July 7, 2013).
Then, apparently, a year passed. The recusal motion was filed on August 27, 2014, and the hearing was held on September 19, 2014. The recusal motion was denied, and the claimant asked the Board to review that decision before any further determinations in the case, called an "interlocutory" appeal. The Board denied that 6 months later on May 15, 2015. According to the court, the judge issued her final decision on September 4, 2015 (112 days after the Board's decision not to review the denial of recusal). The Board issued its order affirming the judge's final decision on June 24, 2016 (294 days after the judge's decision). The court's decision was issued on December 13, 2017 (537 days after the Board decision).
The claim was filed on January 9, 2012, and the litigation concluded on December 13, 2017, 2,165 days from start to finish. That is a long time for finality, for either party. The description provided by the Court and the Board seems to illustrate various opportunities to have shortened that timeline, such as (1) submitting evidence when ordered, (2) electing to seek interlocutory review, (3) allowing submission of briefs in lieu of a closing argument, (4) the year between the closure of the record and the recusal motion. There are possibly others, but these bear mention.
In Florida, it is incumbent upon the trial judge to act upon a motion for disqualification "before making any other rulings in the case." Loevinger v. Northrup, 624 So.2d 374 (Fla. 1st DCA 1993). The motion must be ruled upon within 30 days. If not ruled upon within that time, then the "motion shall be deemed granted," and the moving party may seek reassignment. Fla.R.Jud.Admin. 2.330(j). Those rules require that the factual allegations in a motion for disqualification be accepted as true.
There is no prohibition on holding a hearing regarding a motion for disqualification, but conventional wisdom in Florida recommends against it. See, Davidson, Disqualification and Disclosure, Florida Judicial College. Judge Davidson cites various instances in which a hearing created an adversarial environment, in which the moving party and the judge were on opposite sides of an issue (the judge remaining or departing). That adversarial environment itself, even if the stated reasons for disqualification are inadequate or the motion is untimely, can itself be the basis for disqualification. Judge Davidson contends that if any hearing is held, the discussion should be solely about whether "the stated grounds are legally sufficient." There should be no foray into whether such grounds are or are not true.
The Pennsylvania case provides a chance to reflect on process and procedure in the broadest sense. Should cases proceed to conclusion in the most expeditious manner that affords appropriate due process? When a case requires thousands of days to reach finality, who is served by that? As much as everyone should be concerned with ex parte communication and the potential for an appearance of impropriety, have we reached a point where telephone messages cannot be left, and where missing documents cannot be obtained informally? Would the better course have been for the judge to enter an order compelling the filing of the Word document? Might the challenge have come out differently had the motion for recusal been made a part of the record, available for appellate review? These are all points to ponder.