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17th ANNUAL WORKERS’ COMPENSATION EDUCATIONAL CONFERENCE

Distinctions in the Administrative Process Judge David Torrey (PA) and Judge Sheral Kellar (LA), Facilitators Brian Addington, Moderator. 17th ANNUAL WORKERS’ COMPENSATION EDUCATIONAL CONFERENCE. Text 208938 and your Questions to 22333. 17 th Annual TN WCEC.

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17th ANNUAL WORKERS’ COMPENSATION EDUCATIONAL CONFERENCE

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  1. Distinctions in the Administrative ProcessJudge David Torrey (PA) and Judge SheralKellar (LA), FacilitatorsBrian Addington, Moderator

  2. 17th ANNUAL WORKERS’ COMPENSATION EDUCATIONAL CONFERENCE Text 208938 and your Questions to 22333

  3. 17th Annual TN WCEC DISTINCTIONS OF THE ADMINISTRATIVE PROCESS:ADMINISTRATIVE ADJUDICATION OF DISPUTED WORKERS’ COMPENSATION CASES;THE CHALLENGE TO DECISIONAL INDEPENDENCE Sheral Kellar, Workers’ Compensation Chief Judge Baton Rouge, LODavid B. Torrey, WCJPittsburgh, PA Text 208938 and your Questions to 22333

  4. 17th Annual TN WCEC Sheral Kellar, Workers’ Compensation Chief Judge Baton Rouge, LO Text 208938 and your Questions to 22333

  5. 17th Annual TN WCEC David B. Torrey, WCJ Adj. Prof. of Law, Univ. Pittsburgh School of LawPittsburgh, PA Text 208938 and your Questions to 22333

  6. 17th Annual TN WCEC Members, National Association of Workers’ Compensation Judiciary Text 208938 and your Questions to 22333

  7. 17th Annual TN WCEC TOPICS1. Short History of How WC Cases Have Been Adjudicated 2. Typical Current Adjudication Structures3. Trend Towards WCJ as Final Fact-finder4. WCJ Order, Appeal, and Stay 5. Perennial Issues … including Decisional Independence of the WCJ Text 208938 and your Questions to 22333

  8. 17thAnnual TN WCEC APPROACH A comparative analysis … with an eye towards the … Tennessee Reform Law of 2013 and historic creation of the WC Court of Claims Text 208938 and your Questions to 22333

  9. 17thAnnual TN WCEC A SHORT HISTORYMost states adopted adjudication within a Board or Commission … though many provided for appeal de novo, sometimes with jury, in civil court …examples: PA, NY, CT, MA, CA Text 208938 and your Questions to 22333

  10. 17thAnnual TN WCEC Fourteen states, however, including TN (1919), and Louisiana (1914), originally followed the approach of England and retained adjudication in civil court. Text 208938 and your Questions to 22333

  11. 17thAnnual TN WCEC A Continuing Trend …Shift of Adjudication from Civil Court to Administrative Agency New Mexico (1986)Wyoming (1986) Louisiana (1983/1988/1989) Text 208938 and your Questions to 22333

  12. 17thAnnual TN WCEC Remarkable Feature of the Trend … In each state, WCJ became final fact-finder, and appeal is directly to judicial branch … … But this was not the the Tennessee Reform Approach Text 208938 and your Questions to 22333

  13. 17thAnnual TN WCEC NEW MEXICO First attempt (1957) unsuccessfulConstitution amended (1986) WCJ is final fact-finder Appeal is “whole record” substantial evidence reviewlike in federal courts Text 208938 and your Questions to 22333

  14. 17thAnnual TN WCEC WYOMING Since 1986, hearing examiner of office of independent officers is final fact-finder Appeal based on substantial evidence Medical disputes over permanent impairment referred to Medical Commission “acting as hearing examiner” Text 208938 and your Questions to 22333

  15. 17thAnnual TN WCEC LOUISIANA1983: Creation of OWC1988: Hearing Officers as Judges1988-1989: Upheaval … Law declared unconstitutional in Moore v. Roemer (La. 1990) 1990: Constitution amended Text 208938 and your Questions to 22333

  16. 17thAnnual TN WCEC Louisiana, continued ` (1) WCJ is final Fact-finder (2) Review in Courts of Appeals is under the “manifest error/clearly wrong” standard Text 208938 and your Questions to 22333

  17. 17thAnnual TN WCEC SOME THEORY Nature of WC Adjudication within WC Agency: Judicial … not “Institutional” Text 208938 and your Questions to 22333

  18. 17thAnnual TN WCEC Some theory, continuedPoint: An agency may have several functions, but when it is adjudicating cases, it is like a court: LARSON: “In the spectrum of administrative agencies . . . the compensation commission . . . while deciding controverted claims . . . is as far towards the judicial end of the spectrum as it is possible to go without being an outright court.” Text 208938 and your Questions to 22333

  19. 1 7th Annual TN WCEC More History: The Jury Trial IssueWhy, in general, no right? U.S. Supreme Court: parties do not have a right, under the U.S. Constitution, to trial by jury in a contested workers’ compensation case, because trial by jury not a right protected by the Fourteenth Amendment.Seventh Amendment, meanwhile, only provides for jury trials in cases brought in federalcourt. Text 208938 and your Questions to 22333

  20. 17thAnnual TN WCEC The Jury Trial issue, continued Some state constitutions specifically allow for administrative adjudication (CA)Some states do not read their constitutions to demand jury trial in a WC case (PA)Some states, by tradition, because of state constitutional concerns, allow appeal to jury trial after exhaustion of WC administrative proceedings: (MD, OH, TX, VT, WA) Text 208938 and your Questions to 22333

  21. 17thAnnual TN WCEC TYPICAL ADJUDICATION STRUCTURESAppeal Directly to Appellate Court (AZ, MT, FL, LA, NM, WY)Thus, in FLORIDA … Cases litigated before JCC, appeal to 1st Dist. Ct. Appeals (special jurisdiction over WC cases), with appeal thereafter to supreme court. Text 208938 and your Questions to 22333

  22. 17thAnnual TN WCEC Typical Adjudication Structures, cont. Appeal of WCJ to review within the agency (PA, DC, KY, GA, VA) Thus in PENNSYLVANIA …. Cases litigated before WCJ; appeal to Appeal Board, which reviews for substantial evidence/error of law. Appeal thereafter to Commonwealth Court and then, with permission, to supreme court. Text 208938 and your Questions to 22333

  23. 17thAnnual TN WCEC Typical Adjudication Structures, cont. Appeal within agency and then jury trial (MD, OH, TX, VT, WA) … Thus, in WASHINGTON … WC cases litigated before IAJ (who issues proposed D&O), with appeal to BIIA. Appeal thereafter to superior court (trial court), which may involve a jury trial. Judicial review to Court of Appeals, and then to state supreme court. Text 208938 and your Questions to 22333

  24. 17thAnnual TN WCEC TREND: WCJ AS FINAL FACT-FINDEROriginally, virtually everywhere, WCJ or equivalent only proposed a decision for the Board or Commission Some early courts called the WCJ a “special master” (a subordinate), and the Board the “chancellor” (the trial court and fact-finder). Text 208938 and your Questions to 22333

  25. 17thAnnual TN WCEC Trend, WCJ as final fact-finder, cont.In present day, Board as Chancellor (final fact-finder) continues just barely as majority rule :“Of fifty-two critical jurisdictions – fifty states, the Longshore Act (LHWCA), and the District of Columbia (D.C.) – twenty-six state programs hew to the majority rule. A full twenty-two states, plus the LHWCA and D.C., subscribe to the minority rule.” ~ Torrey (2012) Text 208938 and your Questions to 22333

  26. 17thAnnual TN WCEC Trend, WCJ as final fact-finder, cont.Majority include NY, CA, GA, MS, VA Minority include PA, KY, MA, MN, LWHCAMotives: Finality, efficiency, decisional independence Tennessee: Reform places state in majority rule – WCAB not bound by WCJ decision; Supreme Court review is de novo. Text 208938 and your Questions to 22333

  27. 17thAnnual TN WCEC The WCJ Order and the Stay Effect of AppealStates that employ multiple levels of adjudication within the agencies differ on whether the appeal from the WCJ to Board creates a stay. In 1999, a WCRI researcher reported that “[a]mong 22 of the 36 jurisdictions with an administrative appellate forum an appeal stays the formal hearing decision without qualification. In five jurisdictions, an appeal stays part of the formal hearing decision.” Text 208938 and your Questions to 22333

  28. 17thAnnual TN WCEC Order and stay, cont. Tennessee thus adopts what is a very common rule. See Section 83 of the Reform Act (“[I]f a request for … review is timely filed, the order issued by the [WCJ] shall not become final …, until the [WCAB] issues a written decision certifying the order as a final order.”). Text 208938 and your Questions to 22333

  29. 17thAnnual TN WCEC Perennial Issues In Administrative Adjudication Text 208938 and your Questions to 22333

  30. 17thAnnual TN WCEC Perennial issues, cont.1. Accountability of the WCJ (I): Reasoned Decisions Several state workers’ compensation laws have explicitly codified the rule that the WCJ must provide reasons for his or her decision. Among these states are Michigan, Pennsylvania, and Nebraska. Text 208938 and your Questions to 22333

  31. 17thAnnual TN WCEC Perennial issues, cont. 2. Accountability of the WCJ (II):Competence and Performance “The ultimate reliance for the fair operation of any [appellate review] standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.” ~ Justice Frankfurter (1951) Text 208938 and your Questions to 22333

  32. 17thAnnual TN WCEC Perennial issues, cont. Accountability of the WCJ (II):Competence and Performance(1) High competence and character (2) Appellate Review(3) Employee Performance Evaluation (4) Bar Association Evaluations(5) Ethical Codes Text 208938 and your Questions to 22333

  33. 17thAnnual TN WCEC Perennial issues, cont.3. Growth of Mediation in Admin. WC SystemsThe need for case resolution, and the ability to settle cases, have prompted the growth of mediation in workers’ compensation systems. Tennessee system is similar to that of Florida: True Mandatory Mediation Text 208938 and your Questions to 22333

  34. 17thAnnual TN WCEC Perennial issues, cont.4. Innovation of Medical Fact-finding and AdvisingTo reform the “dueling doctors” practice, a number of jurisdictions have amended their laws to employ medical professionals to advise/inform the WCJ(e.g., ME, FL, UT, WY) Text 208938 and your Questions to 22333

  35. 17th Annual TN WCEC A PERENNIAL (AND SERIOUS) ISSUE …5. THE THREAT TO JUDICIAL INDEPENDENCE Text 208938 and your Questions to 22333

  36. 17th Annual TN WCEC The Issue, in general: The “independence” concern has been, and is, that executive branch officials will try to pressure WC judges to make findings or legal conclusions in some particular way, to in turn vindicate some internal or external goal. Such efforts deprive the fact-finder of “decisional” independence.Presumably, trial court judges, sitting in another branch of government, do not have this as such a concern. Text 208938 and your Questions to 22333

  37. 17th Annual TN WCEC Perennial issues, cont. The issue, in particular: When workers’ compensation cases are moved from the civil district court to executive agency adjudications they become extremely vulnerable to administrative influence. Text 208938 and your Questions to 22333

  38. 17th Annual TN WCEC Perennial issues, cont. The Louisiana Experience (1990-2014)The Executive Secretary’s admonition: (1988): Judge should assist in keeping “employers economically healthy in this state.”Is this the role of a judge? Text 208938 and your Questions to 22333

  39. 17th Annual TN WCEC Perennial issues, cont. The Recent Maine Controversy (2014) Agency head admittedly removed Hearing Officer from cases dealing with a large employer after ex parte complaints from employer that the Hearing Officer was issuing unfavorable decisions in employer’s disputed cases. Is this how an impartial court operates? Text 208938 and your Questions to 22333

  40. 17th Annual TN WCEC Perennial issues, cont. The Challenge: As long as WCJ’s are employed in the executive branch of government and are supervised by non-judges, conflict will exist between the agency goals and the role of the judge to ensure due process. The challenge for both WCJ and administrator is to create a system where the judge (who is an impartial decision- maker and an agency employee), can co-exist without impropriety or the appearance thereof. Text 208938 and your Questions to 22333

  41. 17th Annual TN WCEC Perennial issues, cont.The Challenge to Tennessee: Administrator has responsibility, among other things, “for the administration of a workers’ compensation system that protects the life, health, and safety of Tennessee’s workforce and ensures the continued viability of Tennessee’s business environment.” Text 208938 and your Questions to 22333

  42. 17th Annual TN WCEC Perennial issues, cont. Need for WCJ’s to remain impartial … despite this statutory admonition … It can be done! Text 208938 and your Questions to 22333

  43. 17th Annual TN WCEC Perennial issues, cont. The goals of the administrator and the judge need not be mutually exclusive. The goals of both can be achieved while maintaining the integrity of the system if appropriate standards are observed. Text 208938 and your Questions to 22333

  44. 17th Annual TN WCEC Perennial issues, cont. Solution: Building and Maintaining Ethical Walls(1) Establishment of uniform rules and procedures for the employee judges, collectively, rather than for any single judge – unless a disciplinary decision is implicated that can be supported by empirical facts and data. Text 208938 and your Questions to 22333

  45. 17th Annual TN WCEC Perennial issues, cont. Building & Maintaining Ethical Walls, cont. (2) Implement a uniform system of performance evaluations for all judges in order to (a) objectively evaluate the performance of judges; (b) document sub-standard performance necessary to support removal; and (c) document satisfactory performance in support of re-appointment after the expiration of the six (6) year term for Tennessee judges. Text 208938 and your Questions to 22333

  46. 17th Annual TN WCEC Perennial issues, cont. Building & Maintaining Ethical Walls, cont. (3) Ex parte communication between an administrator and a judge can have a chilling effect on a judge’s decisional authority. Therefore, administrators must take special precautions and craft special rules for inquiries regarding open claims. A best practice: speak through the Chief Judge, as provided by the Reform Law. Text 208938 and your Questions to 22333

  47. 17th Annual TN WCEC DISTINCTIONS OF THE ADMINISTRATIVE PROCESS THE END Text 208938 and your Questions to 22333

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