                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Scott Ledford, Employee, Petitioner,

            v.

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

            Appellate Case No. 2018-001677



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



              Appeal from The Workers' Compensation Commission


                              Opinion No. 27920
                  Heard April 18, 2019 – Filed 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 Sarah 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 decision
of the Court of Appeals, vacate the orders of Commissioner Susan Barden and the
Workers' Compensation Commission Appellate Panel ("Appellate Panel"), and
remand for a new hearing before a single commissioner.

       Scott Ledford is a former lance corporal with the South Carolina Highway
Patrol. While employed as a highway patrolman, Ledford was injured in two
separate work-related accidents. In July 2010, Ledford sustained injuries to his spine
after being tasered during a training exercise. Ledford settled the 2010 claim with
Respondents. In March 2012, Ledford was involved in a motorcycle accident while
attempting to pursue a motorist.

       Following the second accident, Ledford filed two separate claims for workers'
compensation benefits. One claim alleged injuries to his right leg and lower back
stemming from the 2012 motorcycle accident. The other claim related to Ledford's
2010 Taser accident and alleged a change of condition for the worse. The claims
were eventually consolidated, and the parties appeared before Commissioner Andrea
Roche. 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. Neither party appealed Commissioner Roche's
order.

     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.

       Following the hearing—but prior to the issuance of a final order—Ledford
filed a motion to recuse Commissioner Barden. 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;1
and questioned Ledford's credibility regarding his claims of neck pain. Ledford
contended any one of these grounds was sufficient to warrant recusal.


1
  Ledford owned and operated a landscaping business to supplement his income as
a highway patrolman. Respondents submitted Ledford's 2012 and 2013 tax returns
as an exhibit in the underlying workers' compensation proceeding.
     In support of his motion to recuse, Ledford submitted an affidavit from his
accountant stating Ledford's tax returns were prepared in accordance with Generally
Accepted Accounting Principles. Ledford also submitted an affidavit and
memorandum from his attorney, E. Hood Temple, who 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.

       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 false statements and
misrepresentations. Commissioner Barden denied the motion to recuse.

       Commissioner Barden proceeded to rule on the merits of the claim,
determining that Ledford was entitled to 0% permanent impairment to his spine, and
that Respondents were not liable for any additional medical treatment following the
date of MMI other than physical therapy and injections. In her order, Commissioner
Barden impugned Ledford's credibility regarding his ability to work, the extent of
his injuries, and his earnings from and participation in his landscaping business.

       Ledford appealed Commissioner Barden's rulings to the Appellate Panel,
which affirmed in part and reversed in part. Notably, the Appellate Panel reversed
Commissioner Barden's finding regarding permanency and determined Ledford
sustained 15% additional permanent partial disability to his back and was entitled to
45 weeks of compensation. The Appellate Panel also reversed Commissioner
Barden's decision regarding when Respondents were entitled to stop paying
temporary compensation. However, the Appellate Panel adopted most of
Commissioner Barden's factual findings, including those questioning Ledford's
credibility.
       The Court of Appeals affirmed the Appellate Panel and held:
(1) Commissioner Barden was not required to recuse herself; (2) substantial
evidence supported the Appellate Panel's decision to reverse Commissioner Barden's
permanency determination; and (3) substantial evidence supported the Appellate
Panel's findings that Ledford was not credible and his landscaping business remained
lucrative following the injury. Ledford v. Dep't of Pub. Safety, Op. No. 2018-UP-
280 (S.C. Ct. App. filed June 27, 2018).

       We hold the Court of Appeals erred in finding Commissioner Barden 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 serious 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, 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.2

       We are deeply concerned by Commissioner Barden's conduct in this matter.
We first address her comments during the phone conference, especially those
regarding a "duty" to report Ledford for criminal prosecution. Commissioner
Barden's remarks essentially left Ledford with two equally undesirable 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 adjudicated, 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 coercive. See Commentary
to Section 3B(8), Code of Judicial Conduct (CJC), Rule 501, SCACR ("A judge




2
    We commend Ms. Sutusky for her candor 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 second choice involving
no such referral. Even assuming a duty to report Ledford for false statements or
misrepresentations properly arose, the obligation would be absolute. Commissioner
Barden's duty would not simply go away in the event of a settlement.
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.").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, CJC, Rule 501, SCACR. In our view, Commissioner
Barden's behavior in this case would undoubtedly lead one to reasonably question
her impartiality. Therefore, she 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. Once 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 discussions 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 the merits of a claim
or defense, which may indirectly include an assessment of a party’s or a witness's
credibility. This role of a trial court is both accepted and, quite frankly, invited.
Nothing in our decision today should be construed to discourage this practice. We
are addressing the discrete situation where a trial court judge (a workers'
compensation commissioner) threatened criminal prosecution against a party if that
party did not settle the case.

       Ledford's counsel provided an opportunity for Commissioner Barden to right
her wrong by moving for recusal. 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.




4
  Workers' compensation commissioners "are bound by the Code of Judicial
Conduct, as contained in Rule 501 of the South Carolina Appellate 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, vacate the
orders of Commissioner Barden and the Appellate Panel, and remand for a new
hearing before a single commissioner.6



      REVERSED, VACATED, AND REMANDED.



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




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