I recently read an intriguing decision of the Kentucky Workers' Compensation Board from November 1996. Kentucky's Board is an administrative appellate panel. A litigant disappointed in a judicial workers' compensation determination may appeal to the Board. If the dissatisfaction thereafter remains, an appeal may be sought thereafter from a constitutional court.
In this decision, Brock v. Westview Nursing Home, an injured worker named Brock was disappointed by the decision of an ALJ dismissing her claims. The Board began its analysis noting that it had previously (August 1996) reviewed the same case. It is a noteworthy aside to remind the reader that workers' compensation is prone to involve serial litigation regarding various issues. It distinguishes workers' compensation from the singular finality of a jury trial in civil court.
In Brock, the injured worker had alleged injuries "when she was kicked by a patient." The path from workers' compensation claim to adjudication is not always as swift as one might wish. The parties conducted discovery and presented their proof at a hearing. However, "prior to the rendition of the decision," the presiding Administrative Law Judge (ALJ) resigned and a new ALJ was appointed. Presumably working from the record, the new ALJ then "rendered a decision in this matter in which he concluded (Ms.) Brock had failed to sustain her burden of proof."
The Board noted that it was then called upon to determine "whether . . . the ALJ abused his discretion or clearly exercised an unwarranted level of discretion" in reaching this decision. It said that "subsumed therein is a question of judicial misconduct." The focus of the Board was upon "the ALJ's participation or remarks" and whether the ALJ "overstepped the bounds of propriety, thus creating the impression that the parties were deprived of a fair trial."
It is at this stage of the Board's decision that the reader is likely to ask what the ALJ's alleged transgression was. The Board heightens the reader's curiosity by concluding that in this instance the decision must be "reversed and remanded," and that the case must "be assigned for decision purposes only to an Administrative Law Judge other than" the ALJ who rendered the appealed decision.
The Board reminded that "the law presumes that a judge is unbiased and unprejudiced." Without explicitly conceding that this presumption might be overcome in some setting, the Board seemingly implies it. It proceeds to note that even in instances where disqualification of a judge may not be "technically required," it may nonetheless be appropriate "in order to dispel any thought or suspicion that the litigants may not be receiving impartial justice."
The Board noted that all trial judges must recite findings of fact and conclusions regarding the claims brought for adjudication. However, that does not mean that an "ALJ can or should detail every iota of his subjective reasoning." Perhaps, it is suggesting that one sticks to "just the facts" as made famous by the old Dragnet trope? It explained that a reviewing body may "seek to discover why a particular piece of information/evidence was influential," and "just as frequently it is difficult, if not impossible, for a fact finder to articulate the basis of his or her reliance upon any given piece of evidence." Thus, it is the trial judge's job to make sufficient findings to support the decision, and as importantly to carefully note and discuss them in the order.
The Board stressed the importance of a trial judge's decision being based upon "the evidence that was presented to that decision-maker that resulted in the final conclusion." After all:
"it is the presentation of evidence over which the parties have control and it is the evidence presented to a fact finder that the parties may address."
This is a reference to the concept of due process that underlies the litigation and adjudication process in America. The Board seemingly conceded that life experience might influence a decision. However, it stressed that the decision in a case should be based not on a Judge's experiences, education, or assumptions, if any, but upon the evidence adduced and admitted. The evidence should lead to a conclusion.
And, at that stage, the Board ultimately turned to the details of the ALJ's findings. Factually, the ALJ concluded that:
"there is no way a supine, sickly, patient could have kicked (Ms.) Brock hard enough to cause her to seek treatment for pain for over two years following the injury. [I]t could not possibly have caused all the alleged problems."
The Board noted that such a conclusion might be reached in a proceeding that included significant evidence as to the patient, the event, etc. But, it noted that there was "minimal evidence before the ALJ on the physical mechanics of the entirety of the incident." Therefore, on that record, the ALJ's finding was not appropriate. The Board noted that this "categorical" conclusion of the ALJ was "without support anywhere in the record."
Another issue regarded the claim for pain management care. The ALJ concluded:
"I find the whole notion of pain management to be 'junk' science at its worse. I see the whole 'discipline' or scam as a natural parasitic growth on third party payment schemes."
The ALJ cast further dispersion on the pain management profession citing "the movie Field of Dreams," and the theme therein where Kevin Costner's character is "inspired by a thought: 'If you build it, they will come.'" The ALJ pontificated that pain management in workers' compensation might be similarly described with "if you pay for it, they will come."
The ALJ was critical of the care rendered to Ms. Brock, mentioning specific care that was delivered and records that documented it. The discussion is critical of the absence of "definitive diagnosis," the repetition of care delivered, and the generation of "pseudo documents which look like phony operative reports." The ALJ ultimately concluded that the treating physician "produces paper, not results." It is fair to say the order was critical of both the specialty and specific provider of pain management.
The ALJ was also critical of the employer/carrier. He noted "concern" that "it took the employer so long to begin contesting the obviously controversial treatment." The Board was critical of that expression of opinion. It noted that "a fact finder must be impartial and should not create the impression of being an advocate for one side or the other." With this statement, the Board concluded that "the ALJ injects his position rather than a position asserted by" the employer.
However, the Board noted that there was no support in the record for the ALJ's criticism of pain management. It said, "the evidence before the ALJ is silent on the issue of viability or reliability of pain management as a discipline." The Board noted that there was medical evidence that questioned the quantity of injection care that was rendered in the treatment of Ms. Brock. And, upon that, a decision might be made to authorize such care or not. But, it cautioned, from there it is "a significant jump from questioning an individual physician's treatment to challenging the appropriateness of an entire discipline."
The Board proceeds to discuss the Daubert evidentiary standard, noting that the term "junk science" appears to emanate from that line of authority but "is not found anywhere within Kentucky case law." It noted that Daubert's "purpose is to prevent the admission of unproven scientific theory from unqualified experts or from qualified experts using improper methods or research techniques." Thus, there is the process for excluding expert evidence which lacks scientific foundation or support in a particular case, upon the evidence submitted and admitted in that case. The development and presentation of such evidence is the burden of the parties involved.
However, the Board noted that in this litigation:
"The record before the ALJ is totally silent on this issue. The record before the ALJ is totally silent on the question of whether the discipline/subspeciality of pain management is a scam. The record before the ALJ is totally silent on the efficacy of the discipline of pain management. The record is totally silent on whether the certification of this subspeciality is a natural parasitic outgrowth on third party payment schemes."
The Board expressed a suspicion that "the ALJ explored resources extrajudicially to reach these conclusions." Thus a suggestion of a Sleuthing Judge (January 2018). It explained that "such extrajudicial excursions are no more permissible than the ALJ choosing on his own without the presence of the parties or their representatives to meet and talk to the sickly patient that allegedly kicked Brock." See Ex Parte Yet Again. It is not clear from the opinion whether that "meeting" is hyperbole or actually occurred.
The Board also discusses the ALJ's conclusions and findings regarding the physician's medical records. It notes that:
"these statements read in isolation would probably be viewed as nothing more than a fact finder's overzealous commentary upon the medical provider upon whom he places no reliance."
However, the Board concluded that these comments, in the context of the decision rendered and the entirety of the ALJ order, "create a substantially different impression." In this context, the impact of the "statement goes far beyond merely (Ms.) Brock's case."
Finally, the Board noted that the ALJ had concluded that another issue, psychotherapy, was denied on two grounds. First, that there was no claim for such care, and second that the predecessor judge had already denied such care. But, the Board noted that there "clearly" was in fact "a claim for a psychological injury." Furthermore, the Board's review of "all of the orders and pleadings in the record," uncovered "no order in which Judge Schuhmann (the first ALJ) ruled in the manner suggested by" the current ALJ.
The Board described its conclusion to remand with instructions for assignment to a different ALJ as an "extraordinary action." In effect, such a decision combines the appellate relief of decisional review with the extraordinary writ of prohibition. In that light, the decision is perhaps not unimaginable. What the Board perhaps viewed as "extraordinary" in its action was that it appears Ms. Brock asked only for the review, and it may have been the Board's impromptu or sua sponte decision to exceed that scope and address disqualification? Is there room to debate whether the Board thus decided a point not explicitly raised by the parties?
The Board noted that perhaps "any one of the elements" discussed might be ("would likely be") insufficient to support ordering the disqualification. However, the combination of the judge's statements "read together" was sufficient to "create more than an 'abiding impression' of lack of impartiality on the part of the ALJ." The Board concluded that the ALJ's "excursions outside the record create an impression of harm to every aspect of the claim." And, ultimately, it concluded that the appearance created by the Judge's decision was sufficient to justify the disqualification regardless of whether partiality in fact was established.
The Board concluded that "it would be unrealistic for (Ms.) Brock to believe that he (ALJ) could set aside these expressed views." And, the Board concluded that the ALJ could not "be reasonably expected to put out of his mind his previously stated views." As such, the remand came with instructions for the system to reassign the case to a new ALJ as if granting prohibition, and with instructions for the new ALJ as to decide the case within the confines of the evidence presented by the parties.
In all, an interesting analysis of the process of evidentiary determination. Furthermore, a reminder of the role of advocates to develop and present evidence contrasted with the role of adjudicators to weigh and process that evidence in deciding the issues presented.
