SC Commissioner Should Have Recused Herself from Comp Case

The Supreme Court of South Carolina, reversing a decision by the state’s Court of Appeals, held that a Commissioner should have recused herself from a workers’ compensation dispute where the record contained evidence, including an affidavit filed by the claimant’s attorney and corroborated by counsel for the employer, that the Commissioner threatened criminal proceedings against the claimant unless he accepted what was anticipated to be a nuisance settlement figure from the State Accident Fund [Ledford v. Department of Public Safety, 2019 S.C. LEXIS 94 (Oct. 2, 2019)]. Indicating that it was deeply concerned with the Commissioner’s conduct in the matter, the Court said that even if the Commissioner’s statements were not intended as bona fide threats, they were “indisputably coercive.” Accordingly, under the Code of Judicial Conduct, the Commissioner should have recused herself.

Background

Ledford, a former highway patrol officer, was injured in two separate work-related accidents. In July 2010, he sustained injuries to his spine after being tasered in a training exercise. Ledford settled that claim, but was injured in 2012 while attempting to pursue a motorist.

In 2014, the employer filed a Form 21 requesting to stop payment of temporary compensation. It also sought a permanency determination as well as credit for payments made after Ledford reached MMI. Commissioner Barden held a hearing on the matter in August 2014.

Conference Call with Commissioner

Following the hearing—but prior to the issuance of a final order—Ledford filed a motion to recuse Commissioner Barden. According to Ledford's motion, the Commissioner requested a phone conference with the parties a month after the hearing. During this conference, Commissioner Barden allegedly threatened criminal proceedings against Ledford if the case was not settled; indicated that she engaged in her own investigation and made findings based on undisclosed materials outside the record; suggested Ledford used “creative accounting” in his tax returns (Ledford owned and operated a landscaping business to supplement his income as a highway patrolman and the employer had submitted Ledford’s 2012 and 2013 tax returns as an exhibit in the underlying workers’ compensation proceeding), and questioned Ledford’s credibility regarding his claims of neck pain. Ledford contended any one of these grounds was sufficient to warrant recusal.

CPA & Attorney’s Affidavits

In support of his motion to recuse, Ledford submitted an affidavit from his accountant stating Ledford’s tax returns were prepared in accordance with Generally Accepted Accounting Principles Claimant’s attorney, who participated in the call with Commissioner Barden, submitted an affidavit describing what went on during the conference call.

In the affidavit, Ledford’s attorney alleged Commissioner Barden stated “while [Ledford] may be a former member of the South Carolina Highway Patrol ACE Team, he was not a member of the ‘Truth Team.’” The attorney further claimed Commissioner Barden indicated that she “did not believe anything [Ledford] said except his name and age,” that Commissioner Barden stated that she realized the State Accident Fund would likely make a minimal offer due to the conference call, and she would have an ongoing duty to report Ledford to the Attorney General for prosecution unless Ledford accepted the Fund’s offer. According to Ledford’s attorney, the Fund made a minimal settlement offer following the phone conference.

Commissioner Barden denied the troubling statements contained in the attorney’s affidavit, indicating that she merely informed Ledford as to the inconsistencies in testimony and that it was her duty to report any suspicions of false statements and misrepresentations. The Commissioner denied the Motion to Recuse and entered an order determining that Ledford was entitled to zero percent PD to the spine, and that the employer was not responsible for additional medical treatment other than physical therapy and injections. In her order, Commissioner Barden impugned Ledford’s credibility regarding his ability to work, the extent of his injuries, and his earnings from and participation in his landscaping business.

The Appellate Panel of the Commission reversed the Commissioner’s finding regarding permanency—finding Ledford sustained 15 percent additional PD—but adopted most of Commissioner Barden’s factual findings, including those questioning Ledford’s credibility.

Court of Appeals

The Court of Appeals affirmed the Appellate Panel, holding the Commissioner was not required to recuse herself and that substantial evidence supported the Panel’s findings that Ledford was not credible and that his landscaping business remained lucrative after the injury.

Supreme Court

The Supreme Court said the Court of Appeals had erred in finding Commissioner Barden was not required to recuse herself. It said that there was evidence in the record that the Commissioner threatened criminal proceedings unless the case settled. The Court observed that at oral argument, it had questioned the employer’s counsel, who also had been a party to the conference call that involved the recusal motion. The employer’s counsel corroborated the contents of Ledford’s attorney’s affidavit.

The Court said that it was “deeply concerned” by the Commissioner’s conduct in the case. According to the Court, the Commissioner’s remarks essentially left Ledford with two equally undesirable options: (1) move forward with his claim and risk being referred for criminal prosecution; or (2) settle the case and forfeit his right to have his claim adjudicated, and concomitantly Commissioner Barden would ignore her purported “duty” to report Ledford for criminal prosecution. The Court continued that even if the Commissioner’s statements were not intended as bona fide threats, they were indisputably coercive. Under the Code of Judicial Conduct, a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might be questioned. In the Court’s view, Commissioner Barden’s behavior in the case would undoubtedly lead one to reasonably question her impartiality.

Judges Have Important Role in Resolution of Cases

The Court continued that it fully recognized and supported the role that judges, particularly trial court judges, have in facilitating the resolution of cases. It indicated that nothing in its decision should be construed to discourage this practice. Unfortunately here, said the Court, Ledford’s counsel provided an opportunity for Commissioner Barden to right her wrong by moving for recusal. Instead of stepping aside, the Commissioner “became more abusive and strident in both her ruling on the recusal motion and her final order.” The Court concluded that the Commissioner’s “false affidavit” was “appalling,” and it compounded the initial error.