THE STATE OF SOUTH CAROLINA In The Supreme Court

Scott Ledford, Employee, Petitioner,

v.

Department of Public Saf ety, Employer, and State Accident Fund, Carrier, Respondents.

Appellate Case No. 2018-001677

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from The Workers' C ompensation Commission

Opinion No. 27920 Heard April 18, 2019 – F iled October 2, 2019

REVERSED, VACATED, AND REMANDED

James K. Holmes, of The Steinberg Law Firm, LLP, of Charleston, and E. Hood Temple, of Hatfield Temple, LLP, of Florence, both for Petitioner.

John Gabriel Coggiola and Sa rah C. Sutusky, of Willson

Jones Carter & Baxley, P.A., of Columbia, for Respondents.

PER CURIAM: We granted Scott Ledford's petition for a writ of certiorari to review the Court of Appeals' decision in Ledford v. Department of Public Safety

, Op. No. 2018-UP-280 (S.C. Ct. App. filed June 27, 2018). We reverse the decisionof the Court of Appeals, vacate the orders of Commissioner Susa n Barden and the

Workers' Compensation Commission Appellate Panel ("Appellate Pa nel"), and remand for a new hearing befo re a single commissioner.

Scott Ledford is a former lance corporal with the South Carolin a Highway Patrol. While employed as a highway patrolman, Ledford was inj ured in two separate work-related accidents. In July 2010, Ledford sustain ed injuries to his spine after being tasered during a training exercise. Ledford settle d the 2010 claim with Respondents. In March 2012, Ledford was involved in a motorcyc le accident while attempting to pursue a motorist.

Following the second accident, Le dford filed two separate claim s for workers' compensation benefits. One claim alleged injuries to his right leg and lower back stemming from the 2012 motorcycle accident. The other claim re lated to Ledford's 2010 Taser accident and alleged a change of condition for the w orse. The claims were eventually consolidated, and the parties appeared before C ommissioner Andrea

Roche. Commissioner Roche declined to find Ledford suffered a change of condition; however, she found Ledford was entitled to medical b enefits for injuries to his right leg and aggravated pre-existing conditions in his neck and lower back due to the motorcycle accident. Neither party appealed Commiss ioner Roche's

order.

In January 2014, Respondents filed a Form 21 requesting to stop payment of temporary compensation, a permane ncy determinati on, and credit for payments

made after Ledford reached maximum medical improvement ("MMI").

Commissioner Barden held a hearing on Respondents' Form 21 in A ugust 2014.

Following the hearing—but prior to the issuance of a final order—Ledford

filed a motion to recuse Commissioner Barden. According to Led ford's motion, Commissioner Barden requested a phone conference with the parti es a month after the hearing. During this conference, Commissioner Barden alleg edly threatened criminal proceedings against Ledford if the case was not settle d; indicated that she engaged in her own investigation and made findings based on und isclosed materials outside the record; suggested Led ford used "creative accounting " in his tax returns; 1 and questioned Ledford's credibility regarding his claims of ne ck pain. Ledford contended any one of these gr ounds was sufficient to warrant recusal.

1 Ledford owned and operated a landscaping business to supplemen t his income as a highway patrolman. Respondents submitted Ledford's 2012 and 2013 tax returns as an exhibit in the underlying workers' compensation proceedin g.In support of his motion to recuse, Ledford submitted an affida vit from his accountant stating Ledford's tax returns were prepared in accor dance with Generally Accepted Accounting Principles. Ledford also submitted an affi davit and

memorandum from his attorney, E. Hood Temple, who participated in the call with Commissioner Barden and prepared the memorandum immediately aft erwards to document what had transpired.

In Temple's affidavit, he alleged Commissioner Barden stated "w hile [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 Bar den stated that she realized the State Accident Fund would likely make a minima l offer due to the conference call, and she would have an ongoing duty to report L edford to the Attorney General for prosecution unless Ledford accepted the Fu nd's offer. According to Temple, the State Accident Fund made a minimal set tlement offer following the phone conference.

Commissioner Barden denied the troubling statements in Temple's affidavit.

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 fa lse statements and misrepresentations. Commissioner Barden denied the motion to r ecuse.

Commissioner Barden proceeded to rule on the merits of the clai m, determining that Ledford was entitled to 0% permanent impairmen t to his spine, and that Respondents were not liable for any additional medical tre atment following the date of MMI other than physical t herapy and injections. In her order, Commissioner Barden impugned Ledford's credib ility regarding his ability to work, the extent of his injuries, and his earnings from and participation in his la ndscaping business.

Ledford appealed Commissioner Barden's rulings to the Appellate Panel, which affirmed in part and reversed in part. Notably, the Appe llate Panel reversed Commissioner Barden's finding regarding permanency and determin ed Ledford sustained 15% additional permanen t partial disability to his ba ck and was entitled to 45 weeks of compensation. The A ppellate Panel also reversed Co mmissioner Barden's decision regarding when Respondents were entitled to s top paying temporary compensation. However , the Appellate Panel adopted m ost of Commissioner Barden's factual findings, including those questio ning Ledford's credibility.The Court of Appeals affirmed the Appellate Panel and held: (1) Commissioner Barden was not r equired to recuse herself; (2) substantial evidence supported the Appellate P anel's decision to reverse Co mmissioner Barden 's permanency determination; and (3) substantial evidence supporte d the Appellate Panel's findings that Ledford wa s not credible and his landscap ing business remained lucrative following the injury. Ledford v. Dep't of Pub. Safety , Op. No. 2018-UP280 (S.C. Ct. App. file d June 27, 2018).

We hold the Court of Appeals erred in finding Commissioner Bard en was not required to recuse herself. There was evidence in the record—including Temple's affidavit—to support Ledford's contention that Commissioner Barden threatened criminal proceedings unless the case settled. Given the seriou s allegations lodged against Commissioner Barden, coupled with Commissioner Braden’s adamant denial of threatening Ledford with criminal prosecution unless he accepted the Fund’s settlement offer, we questioned Respondent’s counsel, Sa rah C. Sutusky, at oral argument. Ms. Sutusky was a party to the conference call that underlies the recusal motion, and she corrobora ted the contents of Temple's a ffidavit. 2

We are deeply concerned by Commissioner Barden's conduct in thi s matter. We first address her comments during the phone conference, espe cially those regarding a "duty" to report Ledford for criminal prosecution. Commissioner Barden's remarks essentially lef t Ledford with two equally unde sirable 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 adj udicated, and concomitantly Commissioner Barden would ignore her purported "duty" to report Ledford for criminal prosecution. 3 Even if Commissioner Barden's statements were not intended as bona fide threats, they were indisputably coerc ive. See Commentary to Section 3B(8), Code of Judi cial Conduct (CJC), Rule 501, SCA CR ("A judge

2 

### We commend Ms. Sutusky for her can dor and professionalism.

3 It is interesting that Commissioner Barden presented Ledford with one choice involving a referral to the Attorney General's office and a sec ond choice involving no such referral. Even assuming a duty to report Ledford for false statements or misrepresentations properly aros e, the obligation would be abso lute. Commissioner Barden's duty would not simply go away in the event of a settle ment.should encourage and seek to fa cilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts."). 4

Our Code of Judicial Conduct states: "A judge shall disqualify himself or

herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." Section 3E, C JC, Rule 501, SCACR. In our view, Commissioner Barden's behavior in this case would undoubtedly lead one to re asonably question her impartiality. Therefore, sh e should have recused herself. 5 Commissioner Barden's conduct was quite simply unacceptable and offensive to the ideals of a fair and impartial judiciary.

This Court fully recognizes and supports the role that judges, particularly trial court judges, have in facilitating the resolution of cases. On ce a case is assigned to a judge or the trial is underway , the parties (through counsel) will often confer with the judge on a host of matters involving the case. Those discu ssions may solicit the judge's input on resolving the case; judges who accept the invitation to engage in such discussions may necessarily convey a preliminary view of t he merits of a claim or defense, which may indirectly include an assessment of a par ty’s or a witness's credibility. This role of a trial court is both accepted and, quite frankly, invited. Nothing in our decision today s hould be construed to discourage this practice. We are addressing the discrete situation where a trial court judge (a workers' compensation commissioner) threatened criminal prosecution agai nst a party if that party did not settle the case.

Ledford's counsel provided an opportunity for Commissioner Bard en to right her wrong by moving for recusal. Instead of stepping aside, Co mmissioner Barden became more abusive and strident in both her ruling on the recu sal motion and her

final order. Commissioner Barde n's false affidavit is appallin g, and it compounds

the initial error.

4 Workers' compensation commissioners "are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appella te Court Rules."

S.C. Code Ann. § 42-3-250(A) (2015).

5 We find the recusal issue dispositive; therefore, we need not address the remaining issues in the Court of Appeals' decision. Futch v. McAllister Towing of Georgetown,

Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).Accordingly, we reverse the decision of the Court of Appeals, v acate the

orders of Commissioner Barden a nd the Appellate Panel, and rema nd for a new hearing before a single commissioner. 6

REVERSED, VACATED, AND REMANDED.

BEATTY, C.J., HEARN, FEW and JA MES, JJ., concur. KITTREDGE, J., concurring in result only.

6 Ledford specifically requested this relief in his brief. Addi tionally, in response to pointed questioning by the Court during oral argument, Ledford insisted that he desired this remedy.