On October 2, 2019, the South Carolina Supreme Court entered an intriguing decision in Ledford v. Department of Public Safety, Opinion No. 27920 (SC 2019). In South Carolina, disputes are heard by a workers' compensation Commissioner. In that system, the individual Commissioner decisions are subject to review by all of the Commissioners collectively, then the South Carolina Court of Appeals, and ultimately the Supreme Court. Unlike Florida, in which the regulatory function of workers' compensation is in a separate agency from the adjudication of disputes, the South Carolina Commission is also collectively the state's regulatory authority over workers' compensation generally.
The injured worker in this case was a highway patrol officer that alleged two distinct workers' compensation accidents and injuries. Unfortunately, that is not uncommon in workers' compensation. Over the years I have encountered many workers whose occupational paths have included multiple injuries. The fact is, that some occupations are perhaps simply more likely to lead to injury than others. It seems logical that jobs involving physical activity are perhaps more likely to produce certain injuries. That is not to say that any one of us is safe from injury; the fact is that any of us might suffer a work injury.
The first of Mr. Ledford's injuries was resolved through a settlement. After the second, there was litigation of two claims, one related to the second accident and one alleging "a change of condition for the worse" regarding the first accident/injury. Without any practical South Carolina experience, the second claim sounds like a Florida petition for modification, section 440.28, Florida Statutes, and the "settlement" sounds like that term is less permanent in South Carolina than in Florida. In Florida, it is fairly impractical to revisit a settled case.
The two claims were assigned to one Commissioner who denied the claim of "a change of
condition," but who did award benefits related to the second accident/injury. After a period, the employer/carrier asked the Commissioner to make "a permanency determination," which would terminate temporary indemnity and both begin and define the permanent indemnity due. A hearing was held in August 2014.
Thereafter, prior to a decision in the case, the injured worker filed a motion to recuse ("recusal" is more generally associated with an adjudicator voluntarily removing her/himself from a case, and a motion asking for that relief is more generally a "motion for disqualification"). This alleged that a phone conference was convened after the hearing and that in that conference the Commissioner "allegedly threatened
criminal proceedings against Ledford (the injured worker) if the case was not settled." The Commissioner also allegedly "indicated that she
engaged in her own investigation and made findings based on undisclosed materials
outside the record."
Some readers will remember The Sleuthing Judge (October 2017), and Sleuthing Addressed Again (January 2018). Judges are responsible for determining what explanation of facts is more supported by the presented evidence. It is not generally the judge's role to investigate. I have received feedback over the years regarding both my writing and lecturing on this point. Admittedly, there are state statutes that not only allow such sleuthing but in some cases actually encourage or even require it. Thus, the subject is perhaps more clear in Florida than in some other jurisdictions. However, the impartial role of the adjudicator is subject to at least perceptions of partisanship when the adjudicator becomes an investigator, statutorily required or not.
In response to the alleged accusations of the Commissioner, the injured worker submitted affidavits from an accountant and an attorney. The worker alleged that the Commissioner made editorial comments regarding the injured worker's credibility. Thereafter, the Commissioner made specific denials of the content of one of the affidavits (regarding what was said during the telephone conference). The Court concluded that the Commissioner alleged one affidavit included "false statement[s] of fact
and a frivolous allegation." The Commissioner "denied the motion to recuse," and then ruled "on the merits of the claim."
The injured worker was dissatisfied with the conclusions in that denial of claims. The Court said that the denial "impugned Ledford's credibility" in regard to various evidentiary issues. The Court noted that the full Commission reviewed the decision and made different determinations of permanency and benefit entitlement. However, "the Appellate Panel adopted most of (the) Commissioner's" factual findings. The injured worker proceeded next to the Court of Appeals which "affirmed the Appellate Panel," including the denial of disqualification.
The Supreme Court reversed the Court of Appeals. It concluded that the Commissioner was required to disqualify. It noted that the record supported that the Commissioner "threatened
criminal proceedings unless the case settled." This, "coupled with" the Commissioner's "adamant
denial of threatening" was noted by the Court. The Court inquired of the defense counsel at oral argument about these alleged statements, and defense counsel "corroborated the . . . affidavit" regarding the threatening statements. The Court made a specific note in the decision commending the defense counsel "for her candor and professionalism."
The Supreme Court described itself as "deeply concerned" by the situation presented, by the Commissioner's conduct. It concluded that the Commissioner's comments left the inured worker "with two equally undesirable options" essentially to prosecute his claims and risk prosecution, or settlement of his case in a pressured position.
The Supreme Court cited the South Carolina Code of Judicial Conduct which says a "judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts." See Commentary
to Section 3B(8), Code of Judicial Conduct (CJC), Rule 501, SCACR. The Court also cited the Code regarding "disqualification," noting that it is mandated ("shall") "in a proceeding in which the judge's impartiality might reasonably be
questioned . . . ." Section 3E, CJC, Rule 501, SCACR.
The Supreme Court concluded that the Commissioner's "behavior in this case would undoubtedly lead one to reasonably question
her impartiality," and that disqualification would have been appropriate. The Court described the factual conduct as "quite simply unacceptable and offensive to the ideals of a fair
and impartial judiciary." The Court conceded that the process of adjudication will include discussions and that the parties "may solicit the
judge's input on resolving the case." However, the Court noted that judges' decisions to provide such input are voluntary, something a judge might elect to do.
The Court stressed that its decision was not to be "construed to discourage" a judge in "such discussions," from conveying "a preliminary view of the merits of a claim
or defense, which may indirectly include an assessment of a party’s or a witness's
credibility." The Court stressed that in this decision it was "addressing the discrete situation where a trial court judge threatened criminal prosecution against a party if that
party did not settle the case." The Court characterized the motion for recusal as the injured worker offering "an opportunity for (the) Commissioner . . . to right
her wrong," and lamented that the Commissioner did not take advantage of that offer.
Not being on the South Carolina Supreme Court, and not addressing a "discrete situation," I would note that the better practice for judges is likely to avoid conveying "a preliminary view" in any instance. Prejudging the evidence in piecemeal, or any of the witnesses outside the context of all of the witnesses is fraught with the potential for incomplete and thus imperfect assessment. While parties might wish for such "a preliminary view," such a view is inherently problematic, incomplete, and troublesome.
My recommendation would be to avoid any investigation or sleuthing by any adjudicator unless compelled by law. Instead, the process would work best if parties and their attorneys investigated, developed, documented, and presented evidence. The process would work best if adjudicators limited their role to evaluating, weighing, and adjudicating the evidence that the parties thus bring. It would be best reviewed at trial, in the context of all of the evidence, subject to the careful examination, cross-examination, and arguments of all parties. That is what the trial is for.
My recommendation would be to avoid any investigation or sleuthing by any adjudicator unless compelled by law. Instead, the process would work best if parties and their attorneys investigated, developed, documented, and presented evidence. The process would work best if adjudicators limited their role to evaluating, weighing, and adjudicating the evidence that the parties thus bring. It would be best reviewed at trial, in the context of all of the evidence, subject to the careful examination, cross-examination, and arguments of all parties. That is what the trial is for.
As a further bit of advice, there is no positive purpose served by "off-the-record" discussions between an adjudicator and counsel. Factual disputes about what was or was not said are always possible, in even the most innocent of situations. What one says may nonetheless not be what another hears. The integrity of the adjudication process is enhanced by the presence of a record or recording of any and all case-specific interactions in which an adjudicator participates.
And, the appropriate role for an adjudicator in the mediation or conciliation process is simply to order, or perhaps less formally recommend, that the parties engage in that process. When judges become mediators, devil's advocates, or negotiators, they risk abandonment of the impartial adjudicator role; they risk misunderstanding(s) and misperception(s). That is not to say a judge cannot serve as a mediator, as is the accepted paradigm in a number of jurisdictions. That is to say that if one engages in the role of mediator, it is best that someone else then fulfill the role of adjudicator in that matter.
And, the appropriate role for an adjudicator in the mediation or conciliation process is simply to order, or perhaps less formally recommend, that the parties engage in that process. When judges become mediators, devil's advocates, or negotiators, they risk abandonment of the impartial adjudicator role; they risk misunderstanding(s) and misperception(s). That is not to say a judge cannot serve as a mediator, as is the accepted paradigm in a number of jurisdictions. That is to say that if one engages in the role of mediator, it is best that someone else then fulfill the role of adjudicator in that matter.
