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February 12, 2013
ISSUE 1:
SUPREME COURT SAYS FUENTES “A”
ISSUE 2:
WILKINSON DEAD
FUENTES
Until May 3, 2007, the question of how to compute the value of an award after apportionment under L.C. 4663 / 4664 had been answered / unanswered since April 19, 2004.
The first major landmark in this area was an en banc decision in the Escobedo case rendered April 19, 2005 (petition for Writ of Review later denied). A couple of months later, another en banc decision issued in Nabors on June 9, 2005. This decision would later be overturned by a 1st District Court of Appeal (DCA) decision one year later, June 8, 2006.
In between the 2 decisions in Nabors, the 5th DCA rendered its decision in Dykes on December 20, 2005. In short, the Dykes formula for computing the value of an award after apportionment was the polar opposite of the en banc decision in Nabors. The DCA opinion in Nabors agreed with Dykes.
On August 30, 2006, another panel of justices in the 1st DCA, different from the Nabors panel, issued an opinion inBrodie, basically agreeing with Nabors and Dykes in principle, but changing the formula a little.
A day later, the 3rd DCA weighed in with a 44 page opinion in 4 consolidated cases, referred to as Welcher. This opinion, in no uncertain terms, disagreed with Dykes and Nabors, and found that the original majority opinion in the Nabors en banc set forth the correct formula.
Given this great disparity in the interpretation of the new apportionment law, the Supreme Court granted review inWelcher and companion cases on November 15, 2006.
In related matters, the 3rd DCA, in a published opinion in Kopping dated 9-11-06, had confirmed that the L.C. 4664(b) presumption is indeed a conclusive presumption. The injured worker may not even offer evidence of medical rehabilitation following the prior award. However, the court also clarified that the burden is on the CA to prove overlap. Prior cases (Strong, Sanchez) had burdened the injured worker with disproving overlap.
On May 3, 2007, the Supreme Court issued its decision in Welcher/Brodie et al. Given the circumstances in the several cases before it, the Court addressed calculation of the level of permanent disability after apportionment under L.C. 4664 and also after apportionment under L.C. 4663.
In short, the Court retained what had become known as Fuentes Formula A, which in workers' compensation parlance became "subtracting percentages, not money". That is to say, if the current overall level of disability is 71%, and the employee had a prior award of 63%, the "new" disability would be 8% (71-63). Or, if the overall level of disability is 50%, but only 70% of the causation of disability is industrial and 30% of the causation is non-industrial, the disability is 35% (.7 x 50).
WILKINSON
When L.C. 4750 was repealed 4-19-04, the “(Bauer) Wilkinson Doctrine” – which held that when a worker sustains two or more injuries to the same part of the body [while employed by the same employer], and the condition resulting from the several injuries becomes permanent and stationary at the same time, the worker would be entitled to one over-all level of permanent disability without apportionment – became ancient history.
L.C. 4750 had allowed apportionment for “pre-existing” disability. L.C. 4663 requires apportionment of permanent disability based on CAUSATION. One of the apportioned CAUSES of current disability may be a prior injury which had not yet resulted in a definable disability which “pre-existed” the subject injury.
So concluded the WCAB (en banc) in Benson v. WCAB 72 CCC 1620, a decision affirmed by First DCA 74 CCC 113. On April 29, 2009, the Supreme Court denied review.
February 12, 2013
NOTE: A Board Panel Decision issued on 7-24-12 in the case Anderson v. Jaguar ADJ716686 on this issue. The Board determined that estimating future SAWW increases at 3% each year was in the best interest of the injured worker.
Labor Code Sec. 4453(a)(10) provides for certain increases to the statutory AWE structure for TD payments and Labor Code Sec.4659(c) provides for certain increases in life pension and total permanent disability payments based upon the "state average weekly wage" (SAWW). SAWW is a number compiled by the United States Department of Labor based on the average weekly wage of California employees covered by unemployment insurance for the 12 months ending March 31 of the calendar year (preceding the year in which the injury occurred).
As of March 31, 2006, the SAWW for the 12 months preceding was $880.00 per week. As of March 31, 2005, the SAWW was $838.42. This results in a 4.96% increase in SAWW from 2005 to 2006.
Labor Code Sec. 4453(a)(10) provides that for injuries occurring on or after 1-1-05, for purposes of computing temporary disability indemnity, earnings shall be taken at not less than $189.00, nor more than $1,260.00. (There was no change in this structure for injuries on or after 1-1-06) However, this subsection further provides:
"Commencing on January 1, 2007, and each January thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year."
The effect of this (4.96%) increase is that for injuries occurring on or after 1-1-07, for purposes of computing temporary disability indemnity, AWE shall be taken at not less than $198.37 (1.0496 x $189.00), nor more than $1,322.50 (1.0496 x $1,260.00). This results in a so-called "Minimum TD Rate" of $132.25 per week ($198.37 x 2/3), and a "Maximum TD Rate" of $881.67 per week ($1,322.50 x 2/3)).
The SAWW as of 3-31-07 was $914.60 reflecting a 3.93% increase over 3-31-06. This 3.93% increase becomes effective 1-1-08. As of then, for purposes of computing temporary disability indemnity rates, AWE shall be taken at not less than $206.18 (1.0393 x 198.37) and not more than $1,374.47 (1.0393 x 1,322.50). These changes result in so-called "Minimum TD Rate" of $137.45 / wk and a so-called "Maximum TD Rate" of $916.32.
Of course, these increases in the statutory AWE structure may affect temporary disability indemnity rates for "older" injuries also. See Labor Code Sec. 4661.5.
While the SAWW increased the statutory AWE structure in Labor Code Sec. 4453(a)(10), it actually increases the amount of the life pension or total permanent disability payment under Labor Code Sec. 4659(c).
This subsection provides:
"For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the "state average weekly wage" as compared to the prior year."
Past SAWW increases were 1.97% effective 1-1-05 and 4.01% effective 1-1-06. There was no SAWW increase effective 1-1-04.
As an example, assume an employee with real life earnings of $904.00 per week was injured 1-2-03. His statutory AWE for TD was $903.00/wk [Labor Code Sec. 4453(a)(8)], yielding a TD rate of $602.00/wk. If he was declared 100% PD as of 12-31-03, his permanent total disability indemnity rate would be $602.00 [L.C. 4453(a)(8)]. Note that if his injury had occurred prior to 1-1-03, this would have been his weekly rate for life. Crutcher v. WCAB 46 CCC 843. However, for this 1-2-03 injury, Labor Code Sec. 4659(c) applies.
As there was no SAWW increase effective 1-1-04, his weekly rate remained $602.00/wk throughout 2004. As of 1-1-05, the weekly rate would have had to increase to $613.86/wk (1.0197 x $602.00); as of 1-1-06, the weekly rate would have had to increase to $638.48 (1.0401 x $613.86); and as of 1-1-07, the weekly rate had to increase to $670.15/wk (1.0496 x 638.48). As of 1-1-08, the weekly rate will have to increase to $696.49 (1.0393 x 670.15).
For injuries after 1-1-03, where the permanent disability is less than 100%, but 70% or more, life pension payments would not yet have commenced.
If you have any questions, please email them to tbyrne@hannabrophy.com.
For the past several years, partner Tony Macauley has authored a workers' compensation article for the ABA Tort Trial & Insurance Practical Law Journal. This year's article, Recent Developments in Workers' Compensation and Employers' Liability Law, was co-authored by Hanna Brophy associates Darren Chan and Natasha Dighe. The piece provides an overview of recent case law across twenty different states.
View Article
Ever since the en banc opinion in Aldi v. Carr, McClellan, et al, (2006) 71 CCC 783 (W/D 71 CCC 1822), it has been clear that the revised permanent disability rating schedule adopted January 1, 2005 applies to injuries sustained prior to January 1, 2005, UNLESS the injured worker can establish that one of the exceptions set forth in the third sentence of 4660(d) is applicable. This sentence reads: The revised schedule will apply to pre-January 1, 2005 injuries:
"when there HAS BEEN either no comprehensive medical-legal report or no report by a treating physicianindicating the existence of permanent disability, or when the employer IS not required to provide THE notice required by Section 4061 to the injured worker." (Emphasis added)
The principles of Aldi were reaffirmed in a published opinion from the Third Appellate District in Chang v. WCAB (7-24-07) 72 CCC 921.
This third sentence of 4660(d) has fostered much litigation over the last several years. Issues included the question whether a "comprehensive medical-legal report" could be any such report or only one which indicates the existence of permanent disability. Another major issue was: what does "is not required to provide the notice required by Section 4061" mean? But perhaps a bigger question was what does “indicating the existence” mean.
DEFINING THE EXCEPTIONS
On April 6, 2007, the WCAB issued two en banc (4-3) decisions addressing two questions. In the first of these,Baglione v. Hertz 72 CCC 444, the question analyzed was what kind of medical report had to be written before 1-1-05. Would “any” comprehensive medical legal report, e.g. L.C. 4060, suffice? The Board found that not just "any" comprehensive medical-legal report before 1-1-05 would suffice to trigger the 1997 Schedule. In the battle over "to comma or not to comma", it was determined that to invoke this exception, the medical-legal report must also "indicate the existence" of permanent disability.
Also on April 6, 2007, the Board issued its decision in Pendergrass v Duggan Plumbing 72 CCC 456. This case concerned the "notice required by Section 4061". Some had argued that the duty to provide a 4061 notice arose with the first payment of temporary disability indemnity. The argument continued that therefore if TDI was paid before 1-1-05, a 4061 notice was required before 1-1-05, and therefore the 2005 Schedule for Rating Permanent Disability should NOT apply. The majority disagreed. Where payment of temporary disability indemnity starts before 1-1-05 and continues until 1-1-05 or later, there is no requirement to provide a 4061 notice until the last payment of TDI is made, the majority stated:
"...[I]f the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]ogether with the last payment of temporary disability indemnity ...," (Emphasis added)
The principles of Baglione and Pendergrass have been reaffirmed in two published cases. On May 23, 2007, the decision in Costco v. WCAB (Chavez) 72 CCC 582 issued from the First DCA. On July 24, 2007, the decision inEnergetic Painting v. WCAB (Ramirez) (7-24-07) 72 CCC 937 issued from the Third DCA. Also see W/D and non-published cases: Bryer (9-27-07); City of Galt (Ramos) (9-21-07); Lyngso Garden Materials v. WCAB (Ruiz) 72 CCC 1097; Zenith v. WCAB (Watts) 72 CCC 1135.
A couple of questions not addressed by any of these decisions are:
WHAT EXACTLY DOES “INDICATING THE EXISTENCE OF PERMANENT DISABILITY MEAN?
The first case decided by a DCA on this issue was Vera v.WCAB 72 CCC 1115. The court had concluded that a medical condition had to be permanent and stationary before there could be an "indication".
In an opinion from the 2nd DCA in Genlyte Group v. WCAB (Zavala), 73 CCC 6, certified for publication on January 3, 2008, that Court stated:
“[T]he Vera court’s conclusion miss[es] the mark. ... The language of the statute is not limited to what the Vera court properly describes as the typical final or permanent and stationary report....
[I]n an appropriate case a physician is not precluded from reporting that permanent disability exists prior to the time the injured worker (sic) has reached permanent and stationary status or the extent of ratable permanent disability is known....”
The Court went on to cite several circumstances where the existence of permanent disability may be indicated before the injured worker’s condition becomes permanent and stationary. These included cases of insidious and progressive occupational disease, or severe burns or loss of sight or limbs, or where the injured worker becomes entitled to vocational rehabilitation.
Several decisions since January 2008 have favored the Genlyte rationale over Vera while none have favored Veraover Genlyte. In fact, the Genlyte decision was considered a change in the law and "good cause" to reopen a ces previously decided based on Vera, Avila - Gonzalez 75 CCC 1069. See Tenet v. WCAB (Reddick) 73 CCC 329 (in 10-04, QME advised: P&S if no surgery; expected PD if surgery done); Virginia Surety v. WCAB (Wragg) 73 CCC 75 (In 12-04, PTP advised: Wragg "will be left with some measure of permanent residual disability and limited functional capacity resulting from said industrial injury.); Zenith v. WCAB (Cugini) 73 CCC 81 (On remand to WCAB, instruction to follow Genlyte rationale). There were also numerous Board Panel decisions following Genltye.
Prior to Genlyte, there were there were a variety of Board Panel decisions and Writ Denied cases with similar views as to the meaning of "indicating the existence of permanent disability". The following is a sampling of these and related earlier decisions. In a W/D of 6-14-07 in Xerox v. WCAB (Blair) (6-14-07) 72 CCC 1044, where there had also been a 4061 notice issued before 1-1-05, the WCJ found that a PR-2 reporting loss of cervical motion after surgery was "an indication" of the existence of permanent disability. Also, presumed medical-QIW status [L.C. 4636(c)] was another "indication". As for QIW status, see also Panel Decisions in Compton (8-14-06); Mancinas (3-8-06); andCamacho (11-20-05). In Zurich v. WCAB. (Nunes) (W/D 3-1-07) 72 CCC 368, the WCJ had used the 2005 Rating Schedule. On reconsideration, the WCAB determined that a medical report of 9-27-04 showing that the IW had a herniated disc, footdrop, used a cane, and needed surgery constituted an "indication" of the existence of PD, and therefore the 1997 schedule should apply.
What about a surgery already done prior to 1-1-05? In Owens (2007)(W/D) 72 CCC 148 and in Helm (2007)(W/D) 72 CCC 962, carpal tunnel surgery done in 2003 did not "indicate" PD, but in Conroy (BPD 10-13-06), the Board held that virtual ACL reconstruction surgery itself (done 10-21-04) was an indication of the existence of PD, in part, because there was some indication in the AMA Guides that such a procedure would probably result in ratable permanent disability. And in Santa Rosa School District v. WCAB (Hagle) (W/D 8-29-07) a total hip replacement done in 5-04 (which would yield a WPI of 15-30 under the AMA Guides) was determined a sufficient "indication" of the existence of permanent disability to apply the 1997 schedule even though the condition had not become P&S before 1-1-05. Also, in City of Vacaville v. WCAB (Lee) (W/D) 71 CCC 1853, when the PTP reported on 12-30-04 that indeed the IW would have permanent disability, but his condition would not become P&S for 2-4 months, the Board found this report to be an "indication", and the 1997 schedule applicable. On the other hand, in SCIF v. WCAB (Echeverria) 72 CCC 33, the Court of Appeal found the WCAB decision to apply the 1997 schedule not supported by substantial evidence where the PTP signed a statement prepared by the IW's attorney on 12-15-04, to wit: "I believe permanent disability is within reasonable medical probability emanating from this injury." Similary, in HSR, Inc. v. WCAB (Mariscal) (non-published 9-24-07), the Sixth DCA found a "check the box" report before 1-1-05 inadequate to establish an "indication".
© 2011 Hanna, Brophy, MacLean, McAleer, & Jensen, LLP. All Rights Reserved.
The California Third District Court of Appeal, following oral argument, granted Defendant County of Sacramento’s Petition for Writ of Review on a Labor Code section 3208.3 good faith personnel action defense argued by Elizabeth Trimm of the Sacramento office on April 22, 2013.
Click Here for Full Article
Hanna Brophy Attorney Christian Kerry wins Appellate Court Decision - Labor Code §4850 benefits are subject to the 104-week cap set forth in Labor Code §4656(c)(2) County of Alameda (Knittel) v. WCAB - Read more about this significant victory for California public entities here.
Article on Decision
An award of future medical treatment can include procedures not contemplated at the time of the award but the claimant must still prove they are related to the compensable accident and injury. It is a factual determination that will be upheld if there is evidence in the record to support the decision. The claimant had longstanding knee problems aggravated by a work accident. In 2008, the Court awarded future medical for the right knee. At the time a total knee replacement was not contemplated. When it was recommended, the employer disputed that it was included in the award and that it was reasonable and necessary as a result of the aggravation. Initially the trial court denied the surgery and that was appealed and remanded because while the surgery was not contemplated at the time of the 2008 award, the trial court did award future medical treatment. On remand the trial court held that the surgery was not related to the work aggravation, which was supported by an expert report and other medical records, and the decision was affirmed.
Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568 (2013).
The Nebraska Court of Appeals confirmed that an award of vocational rehabilitation was premature absent a finding the claimant was at MMI. The Court also held the trial court implicitly found claimant did not abandon his job when he refused to take a position he believed was outside his temporary restrictions. Claimant testified he could not perform the position and the employer testified claimant was terminated for refusing to perform the position pending evaluation of whether it was within his restrictions. The testimony provided a factual basis for the trial court to find claimant did not abandon his employment and the award of temporary disability was supported. The Court also reversed the offset of claimant’s temporary benefits with his unemployment compensation as that is contrary to Nebraska law.
Hernandez v. JBS, 20 Neb. App. 634 (2013).
The Nebraska Court of Appeals affirmed the trial court’s finding of a recurrence as there was no evidence of a second accident, just continued flare-ups from the original injury. The trial court found that claimant originally sustained a 20% loss of earning capacity. A small portion of the permanent partial disability benefits were paid late and underpaid, and the trial court awarded a small penalty with interest and attorney’s fees. While the trial court did find that the recurrence resulted in a 40% loss of earning power it declined to award additional permanent disability. The Court of Appeals reversed, indicating that the permanent disability weeks should be paid at 40% with credit for the 20% paid. It also reversed the award of penalties, interest, and fees, finding that the action was not a modification (there was no prior settlement or award) and that the two opinions of 20% and 40% created a reasonable controversy that insulated the employer from penalties.
Tuttle v. Bunge Milling, 20 Neb. App. 615 (2013).
New WV Law Regarding Payment of Attorney’s Fees in Workers’ Comp Litigation
West Virginia Update – May 30, 2013
By: Dill Battle and Karin Weingart
This past legislative session, the West Virginia Legislature passed H.B. No. 3069, which will be effective as of July 12, 2013.
Prior to the enactment of H.B. 3069, there were only two means by which a claimant’s lawyer could recover a fee. The first is under West Virginia Code §23-5-16 which essentially permits 20% of any indemnity benefits awarded or 20% of the total value of a final settlement – each with certain limitations. The second was under West Virginia Code §23-2C-21(c) which provides for an award of attorney fees for an unreasonable denial of compensability, TTD, or authorization for medical benefits. The determination is made by the Office of Judges if the responsible party cannot demonstrate that there was reasonable evidence or legal basis to support the denial at the time the decision was made.
With the enactment of H.B. No. 3069, West Virginia Code §23-5-16 has a new subsection (c) which provides for an award of attorney’s feesand costs to be paid by the private carrier or self-insured employer where a claimant successfully litigates a denial of medical benefits before an arbitrator, mediator, the Office of Judges, Board of Review or court. Within 30 days of the final decision granting the benefits, the claimant’s lawyer must file a petition for fees before the body which made the decision.
The fees must be reasonable, and there are limits to the fees that can be awarded: $125/hour, not to exceed $500 per litigated issue or $2500 per claim.
This new Code provision will not require any immediate action or change in practices by any responsible party. The potential for an award of attorney’sfees and costs may suggest that each request for medical services be reviewed more closely in order to prevent the denial of a requested service that is likely to be reversed on protest or appeal. In cases where you have a difficult time obtaining the medical records needed to evaluate any request, best practices might dictate that you consider issuing an “under investigation” letter before outright denying the request. When a provider is not cooperative in disclosing necessary information to assist an adjuster in making a decision, the regulations allow issuance of a letter advising the claimant that you have received the request from the treating physician for certain treatment, but despite numerous requests for treatment records and treatment plan, no response has been received. Ultimately any final decision denying treatment must be protestable and in compliance with the statute and regulations.
Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013
This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.
Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.
In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.
As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.
The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.
The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.
Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.
My Two Cents
: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (SeeFlour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.
Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.
There are very few cases in workers’ compensation where a party asks a judge to recuse himself or herself. One recent case,Executrix of the Estate of Rosemarie Bellino v. County of Hudson, A-0275-11T4, (App. Div. April 30, 2013) provides guidance on the legal standard.
Rosemarie Beillino worked as a sheriff’s officer for the County of Hudson and filed five workers’ compensation claims. The case was tried over eight non-consecutive days between September 16, 2009 to March 16, 2011. The Judge of Compensation heard several witnesses including the petitioner, two other sheriff’s officers, the county payroll supervisor, Dr. Arthur Tiger, Dr. Malcolm Hermele, Dr. William Kritzberg, Dr. Arthur Rothman and Dr. Arthur Canario.
Ultimately, the judge dismissed three of the five cases and found for the petitioner on an elbow claim and carpal tunnel claim. The judge did not find that petitioner was totally and permanently disabled. The petitioner died prior to the argument before the Appellate Division.
Following the testimony in the case but before any decision, petitioner’s attorney asked to speak to the judge, who advised that she did not want to have any ex-parte discussions. Therefore, counsel for petitioner left a note for the judge along with some case law. That led the judge to contact both parties during which conversation petitioner’s attorney advised that she felt the judge had crossed the line in the case and had become more of an advocate than a trier of fact. The judge directed that counsel file a motion for recusal.
In the motion for recusal, counsel argued that there was bias in part because the judge asked numerous questions of petitioner comprising 12 pages in the transcript. In addition, counsel pointed to the judge’s “expressed incredulity to the petitioner’s statements that . . . she had been regularly required by her job to work beyond the 4:30 p.m. normal workday end.” Further, counsel noted that the judge relied upon her personal trial experience at one point and “prevented petitioner from placing a description on the record of the process delineating her manner of interaction with prisoners/participants and the physical movements that would have been involved.” The judge also noted at one point that she was aware of the arraignment process in Hudson County and did not need clarification. Lastly, counsel felt it was inappropriate for the judge to allow inquiries into the income and the nature of petitioner’s spouse’s retirement.
The Judge of Compensation denied the motion noting in part that the motion was filed 21 months after petitioner had testified. The Appellate Division affirmed. The Court first observed that judges must “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial.”State v. McCabe, 201 N.J. 34, 42-43, (2010). The Court further observed that when a party argues that a judge is biased, “the moving party must prepare the case ‘on paper or by calling witnesses.’Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Judges of Compensation are governed by rules of conduct,N.J.A.C. 12:235-10.1 to 10.23, modeled after the Code of Judicial Conduct.
The Court distinguished two unreported cases because there was no evidence of impatience or irritability in the record and no evidence that the judge took over all questioning. The Court weighed the total number of pages of petitioner’s testimony (110) against the 12 pages of the judge’s questioning and concluded that this was not significant. “We are satisfied neither the length of questioning nor nature of the judge’s questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses.”
As to counsel’s concern about the judge’s demeanor, tone and facial expressions during a conference call prior to the recusal motion, the Court said “. . . she failed to produce affidavits or certifications to support her allegations of the judge’s demonstrated bias.”