SC SUPREME COURT CALLS WORKERS’ COMPENSATION COMMISSIONER A LIAR

In Ledford v. Dept. of Public Safety, the SC Supreme Court took the extraordinary step of censuring a workers’ compensation commissioner for allegedly 1) threatening criminal prosecution against a former highway patrol officer if he did not settle his workers’ compensation claim, and 2) lying about it in an affidavit to the Court.

The Supreme Court reversed the Court of Appeals’ opinion in the case, vacated the orders of Commissioner Susan Barden and the Workers’ Compensation Commission Appellate Panel, and remanded Ledford’s case for a new hearing before a different commissioner.

The Court, after doing their own investigation including interviewing witnesses to the commissioner’s statements allegedly made during a telephone conference, found that commissioner Barden should have recused herself from the case.

The Court’s final statement in the opinion all but calls Commissioner Barden a liar, with particularly strong language from a Supreme Court that is ordinarily slow to criticize prosecutors or sitting judges:

Commissioner Barden’s false affidavit is appalling, and it compounds the initial error.

LEDFORD’S WORKERS’ COMPENSATION CLAIMS

Ledford is a former SC highway patrol officer who was injured twice on the job. First, he suffered a spine injury from a taser during training in 2010. Then, in 2012, he was involved in a motorcycle accident during a car chase.

In the second workers’ comp case, Ledford asked for a “change of condition for the worse” related to his 2010 injury as well as compensation for injuries sustained in the 2012 motorcycle accident:

Commissioner Roche declined to find Ledford suffered a change of condition; however, she found Ledford was entitled to medical benefits for injuries to his right leg and aggravated pre-existing conditions in his neck and lower back due to the motorcycle accident.

Two years later, Ledford went in front of Commissioner Barden when his former employer requested to stop making payments to him:

In January 2014, Respondents filed a Form 21 requesting to stop payment of temporary compensation, a permanency determination, and credit for payments made after Ledford reached maximum medical improvement(“MMI”). Commissioner Barden held a hearing on Respondents’ Form 21 in August 2014.

After his hearing in front of Commissioner Barden, Ledford filed a motion to recuse Commissioner Barden, which she denied.

COMMISSIONER BARDEN’S ALLEGED MISCONDUCT

Ledford alleged that Commissioner Barden requested a conference call about a month after the hearing, during which she threatened criminal prosecution if Ledford did not settle his claims:

According to Ledford’s motion, Commissioner Barden 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; and questioned Ledford’s credibility regarding his claims of neck pain.

Ledford’s attorney submitted an affidavit and memorandum of what happened during the phone conference – he “participated in the call with Commissioner Barden and prepared the memorandum immediately afterwards to document what had transpired.”

In Temple’s affidavit, he 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.’” Temple further claimed Commissioner Barden indicated that she “did not believe anything [Ledford]said except his name and age.” Temple also alleged 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 Temple, the State Accident Fund made a minimal settlement offer following the phone conference.

If true, the commissioner told Ledford that she would have a duty to report Ledford to the Attorney General for prosecution unless he accepted the minimal offer from the State Accident Fund.

Prosecution for what? And, if she has a duty to report something Ledford has done, doesn’t that duty apply whether he accepts the minimal settlement offer or not? Why would a judge threaten a workers’ comp claimant to get them to take a minimal settlement offer?

Commissioner Barden denied having made the statements:

Commissioner Barden labeled the affidavit as containing “false statement[s]of fact and a frivolous allegation[,]” and maintained that she “did not manifest bias or prejudice against [Ledford], but simply informed the parties of the inconsistencies” in his testimony and of her duty to report any suspicions of false statements and misrepresentations.

She then went on to deny Ledford’s workers’ compensation claims, although the Appellate Panel reversed her decision and found that Ledford had suffered 15% additional permanent partial disability to his back and was entitled to 45 weeks of compensation.

He Said, She Said?

Is this a case of he said, she said? I mean, if it’s the word of a litigant against the word of a judge, the judge is going to win, right?

Except, in addition to the affidavit and memorandum submitted by Ledford’s attorney, the Supreme Court also questioned opposing counsel, who was also part of the conference call, to find out what happened:

Given the serious allegations lodged against Commissioner Barden, coupled with Commissioner Barden’s adamant denial of threatening Ledford with criminal prosecution unless he accepted the Fund’s settlement offer, we questioned Respondent’s counsel, Sarah C. Sutusky, at oral argument. Ms. Sutusky was a party to the conference call that underlies the recusal motion, and she corroborated the contents of Temple’s affidavit.

In case there is any doubt as to whom the Supreme Court thought was credible, they added in a footnote: “We commend Ms. Sutusky for her candor and professionalism.”

The Court stated that they are “deeply concerned by Commissioner Barden’s conduct in this matter,” noting that the Commissioner’s comments left Ledford with an impossible choice:

(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 found that Commissioner Barden’s statements were coercive and that she, at a minimum, was required to recuse herself after making the statements:

Even if Commissioner Barden’s statements were not intended as bona fide threats, they were indisputably coercive. See Commentary to Section 3B(8), Code of Judicial Conduct (CJC), Rule 501, SCACR (“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.”).

If there was any doubt left as to how the Court feels about Commissioner Barden’s conduct, they end the opinion with a bold statement that Barden’s affidavit is false and appalling:

Instead of stepping aside, Commissioner Barden became more abusive and strident in both her ruling on the recusal motion and her final order. Commissioner Barden’s false affidavit is appalling, and it compounds the initial error.

A “Prolonged Pattern of Unethical Conduct”

In 2016, after the events discussed in Ledford v. Dept. of Public Safety, the SC Judiciary Committee confirmed Commissioner Barden for an additional four-year term.

They confirmed her despite hearing testimony about what happened in Ledford v. Dept. of Public Safety and that she did not “have the judicial temperament for the job,” as well as testimony by a University of South Carolina law professor that Barden had engaged in a “prolonged pattern of unethical conduct:”

Susan Barden is trying for another term, but at a Senate hearing on Wednesday she was accused of not having the judicial temperament for the job.

One University of South Carolina law professor told senators Barden had engaged in what he called a “prolonged pattern of unethical conduct.” Another lawyer handling the case of an injured state trooper accused Barden of slandering his client and leaving him without medical treatment.

Barden pointed to her 12 years on the Commission, calling herself a “workhorse.”

“I believe this job requires a hunger. And I think I have that hunger. If I didn’t still have it, I wouldn’t be standing up here. I would’ve just let my term expire, I wouldn’t ask to be reappointed,” Barden said.

Commissioner Barden was reappointed as commissioner through 2020 and is currently serving as Vice-Chair of the Workers’ Compensation Commission.

GOT AXELROD?

If you have been injured at work and believe you are entitled to workers’ compensation benefits, your SC workers’ compensation attorney can help you to file your claim, negotiate with the insurance company, present your medical evidence, and file any necessary appeals.

Call now and schedule a free consultation with a Myrtle Beach worker’s compensation lawyer on the Axelrod team. Call us at 843-353-3449 or fill out our contact form today.