Orlando, FL, December 13, 14, and 15, 2021
By Honorable David B. Torrey
Workers’ Compensation Judge
Pennsylvania Department of Labor & Industry
The National Association convened its annual Judiciary College in Orlando, December 13 thru 15 of this year. As always, our group’s meetings and educational sessions were held in conjunction with the Workers’ Compensation Institute’s longstanding convention at the glamorous Marriott World Center. The College Master of Ceremonies was our confident President, Chief Judge Shannon Bruno Bishop of Louisiana.
I have attended each of the NAWCJ Colleges since its founding eleven years ago. I assure you that the experience is still great and, more importantly, I came away from the sessions with plenty of new or renewed information to make me a better-informed, more ethics-conscious judge. I also earned beaucoup CLE credits (as required in my state) and accumulated materials I can share with my agency and fellow Pennsylvania judges.
But enough about me.
Here, instead, are 10 items (highly select) of new knowledge or enhanced appreciation to take away from the conference. The link to the extraordinary conference pamphlet is still hot (see above) for one’s easy referee to all the details. In addition, the NAWCJ conference materials are, I believe, still available to you as a PDF file.
At the outset, however, I can say one thing: the numerous horror stories of judge misconduct, authoritatively presented by former Tennessee Judge Marshall Davidson, constitute lessons that all in attendance will not forget! His top-notch presentation was akin to the scared-straight prison strategies for youths which were so popular in the 1980s.
So here is a highly select list.
1. Per Professor Ehrhardt (Evidence), the business records exception to the hearsay rule should be able to capture not only hospital records but medical records as well, as long as the requirements of authentication are met. The proper foundation for admission of such medical records must be established.
2. Per our psychologist speaker, addressing us on the PTSD diagnosis: Be cautious about diagnoses in the DSM – they are not necessarily scientific but, instead, are based on consensus … and as well by “who yells the most!”
3. Speakers (and the audience) could not come up with many instances where political actors in the executive or legislative branches sought to interfere with WCJ decisional independence. (Though there was that one strange instance in South Carolina when Governor Sanford tried to strong-arm the commissioners with regard to how to apply the AMA Guides.)
4. Under the Maryland system, the Commissioner’s decision can be appealed and a jury trial can be convened. In such cases, the jury is told that the Commissioner’s decision enjoys a “presumption of correctness.” An approximate 8% appeal rate exists.
The Maryland Commission, meanwhile, is proud that it runs a tight ship!
P.S.: Jury trials following the WCJ decision are available in five jurisdictions: Maryland, Vermont, Ohio, Texas, and Washington.
5. Under the Georgia practice, medical records and authenticated laboratory results are, when properly authenticated, admissible in evidence. On another topic, it is notable that medical in Georgia is payable only for 400 weeks, except in catastrophic injury cases. CMS has considered, and apparently tolerates, this aspect of the Georgia system when considering proposed MSAs.
6. Per Virginia Commissioner Ferrell Newman … when writing up the decision, and considering one’s audience, “write to the ‘stranger to the case.’” I endorse this approach and have always followed it. My formulation of the same idea is that a reasonably intelligent individual, certainly after the second reading, can understand exactly what happened, procedurally and factually, and how the dispute was adjudicated.
7. When assessing credibility … recall that demeanor is not (in this difficult period of remote video and telephone hearings) the only criterion of credibility. Corroboration, plausibility, and consistency are also guides!
8. The Louisiana program publishes a webpage-based “Zoom Guide” to advise lawyers and others how to best participate in hearings.
9. Consensus: When a lawyer from private practice becomes a judge, he or she should wait one year before hearing cases from “the old firm.” And how should such new judges interact with the community, especially lawyer colleagues? The Virginia agency website has a new area with rules about how judges can interface with the community.
10. A Racial Equality Initiative: One way Commissioner Newman of the Virginia agency has sought to break the ice as to talking about diversity is creating a book club with titles that address this sensitive issue.
If you haven’t attended a NAWCJ College, consider 2022! The cost is reasonable, the venue is excellent, and the camaraderie is in its own category. The Orlando sessions are events you will always recall with fondness.