By Hon. Jennifer Nicaud, Mississippi Workers’ Compensation Commission
and Hon. Sharon Reeves, Georgia State Board of Workers’ Compensation
The annual Judiciary College at the Workers’ Compensation Institute kept alive its longstanding tradition of providing excellent programming and camaraderie for adjudicators from across the nation. If you missed it this year, mark your calendar for 2025: August 18-20. Here are a few brief highlights.
“Rethinking Evidentiary Rules for Workers’ Compensation Courts” by Prof. Edward Cheng
Professor Cheng teaches evidence at Vanderbilt University. He gave a thought-provoking presentation that challenged participants to consider whether the traditional rules of evidence are the best option for workers’ compensation bench trials or whether “free proof” might allow more natural factfinding – or whether there is a middle ground approach that alleviates the problems of the two extremes. He explored three alternative approaches including revisions to the admissibility of hearsay, alternatives to the rules governing expert evidence, and modification of the rules of authentication to recognize the judge as fact finder and decision maker.
“Readable Legal Writing” by Wayne Schiess
Mr. Schiess is a Senior Lecturer at the University of Texas School of Law who teaches legal writing. Mr. Schiess focused on practical suggestions for more readable legal writing, like the following: A good average sentence length is between 20 and 25 words. (Did you know that Microsoft Word will measure that for you?) While deliberate sentence fragments might be persuasive in a legal document, use of the em dash might be easier to digest. Excessive prepositions can confuse or exhaust the reader. Mr. Schiess also offered concision tips like removing throat-clearing phrases like, “it is important to note.” Possessives are shorter and often clearer than descriptive phrases. Passive voice may be useful when not overused. He also shared that Microsoft Word can measure and score the readability of your writing. Empirical research shows that judges tend to prefer readable text over legalese and that readability is significantly correlated to summary judgment success.
Annual Business Meeting and Lunch
Adjudicators enjoyed a time of fellowship and good food while electing board members for the coming year and receiving a financial report from Treasurer Hon. Mike Alvey, Kentucky. The group reappointed the following judges to expiring terms: Judge Neera Bahl (Georgia); Judge Ju (Lynn) Y. Oh (Maryland); Judge Rita Young (Florida); and elected the following to vacant seats: Judge Tim Connor (Tennessee); Judge Stephanie L. Kinney (Kentucky); and Judge Amanda Ludtke (Wisconsin).
“Panel Discussion of Enforcement of Rules, Orders, and Judgements” by Judge Michael Feeney (Rhode Island), Judge Fred Carney, Jr. (D.C.), Judge Amanda Luedtke (Wisconsin), Judge Bruce Moore (Kansas), and Commissioner James Szablewicz (Virginia)
One of the hallmarks of the College is the multijurisdictional collaboration about issues that face us all. This distinguished panel examined the powers and limitations of enforcement and how those differ among the participating states. Some states have contempt powers including incarceration; others struggle with the teeth to enforce subpoenas. I personally appreciated the suggestion of my co-author who uses a show cause hearing as an enforcement tool.
“From Advocate to Adjudicator” by Judge Mike Alvey (Kentucky) and Judge Pamela Johnson (Tennessee) and “Judging in the Moment” by Judge Bruce Moore brought insight to new and seasoned adjudicators while Judge Melodie Belcher (Georgia) moderated the 13th Annual National Regulators Roundtable presented by the Southern Association of Workers’ Compensation Administrators (SAWCA). The SAWCA Roundtable discussed such issues as authorization of medical treatment, shortage of specialty doctors, workplace violence, mental claims, physician dispensing of medication, medical marijuana, and artificial intelligence. These discussions often produce changes and new initiatives in the participating states’ programs.
“Practical Considerations for Video Hearings” by Judge Marc Grodsky (New York) and Judge Stephanie Kinney (Kentucky)
The group came back together in the afternoon to discuss video hearings, which are new to many states after being made necessary by the COVID-19 pandemic. Judges Grodsky and Kinney discussed the benefits of video hearings (convenience; improve productivity; less travel for injured workers; cost savings) and the potential drawbacks (connectivity; courtroom decorum challenges; party and attorney communication; exhibits) with a lively audience. They suggest these tips for video hearings: maintain control; train well and prepare; get the most out of your technology; verify the presence of others in the room with witnesses, parties, and attorneys; make sure all witnesses are in a quiet environment; and use headsets and microphones to improve audio).
NAWCJ and SAWCA Reception
Participants ended the day socializing, enjoying good food and drinks, and recognizing new members of the NAWCJ Hall of Fame – Hon. Pamela Johnson (Tennessee), Hon. Frank McKay (Georgia), Mr. James Mcconnaughhay (Florida), and Mr. Steve Rissman (Florida).
“Access to Justice: Helping Litigants Navigate the Workers’ Compensation Process” by Judge Stephanie Kinney (Kentucky), Judge Bruno-Bishop (Louisiana), Judge Rassp (California), Ms. Lorraine D’Angelo (Virginia)
This session began with a lively song entitled “What I Like About Comp.” This tune set an upbeat tone for discussion as the panelists discussed issues surrounding access to legal resources. The discussion focused on availability of person-to-person assistance, attorney referrals, and availability of online resources. The panelists also addressed the availability of mediation and challenges faced by self-represented litigants across several jurisdictions.
“The Good, The Bad, and The Ugly: Bizarre, Unusual, and Pivotal Workers’ Compensation Cases from 2023 and 2024” by Commissioner Wes Marshall (Virginia)
Commissioner Marshall brought his annual humor and thought-provoking presentation on the most unusual workers’ compensation cases from 2023 and 2024 as he led a thought-provoking educational dialogue with the audience to spot legal and factual issues and identify possible legal theories for resolution.
“Ethics for Workers’ Compensation Judges” by Judge Forte (Florida), Judge Minicucci (Rhode Island), Commissioner Culbreth (Virginia), and Commissioner Himmel (Virginia)
This diverse panel shared their states’ sources of judicial governance for Florida, Rhode Island, and Virginia including their judicial codes of conduct and the executive rules and regulations that also govern their duties. Then they led a lively discussion of various problems and dilemmas faced by workers’ compensation judges by presenting scenarios for discussion with the audience.
“Employee Leasing Agreements: General and Special Employers – Peeling an Onion” by Judge Rassp (California)
Judge Rassp led an interesting discussion about how to peel the onion to discover who actually employs an injured worker and where liability rests for work injuries, including how to analyze employee leasing agreements that might cloud potential liability. He educated the audience on the nomenclature of general versus special employers, professional employer organizations, staffing agencies, and multiple employer welfare arrangements as well as the documents necessary to reach a conclusion, which sometimes may include underwriting documents and depositions of underwriters or risk managers.
“Expanding Access to Alternative Dispute Resolution” by Commissioner Culbreth (Virginia), Judge Langham (Florida), Ms. Carolyn Slowikowski (Florida), Commissioner Cording (Virginia)
As Alternative Dispute Resolution grows across the country, so do the needs of litigants. This panel from Virginia and Florida discussed their approaches to mediation and pre-litigation problem solving. ADR demand and utilization has grown exponentially. Most participating states in the audience have some form of mediation. In Virginia, mediation is optional. Judges mediate in Virginia only if all parties are represented, and they keep a strict firewall of confidentiality to prevent conflict. In Virginia, where there is a high volume of pro se claimants, certified mediators conduct issue mediation but not full and final mediations if pro se claimants are involved. Under the Florida model, mediation is mandatory, and mediators are not judges. Mediators work with all parties regardless of representation and are involved with a wide range of services. Virginia is exploring creating a model based on the Federal courts where limited-scope representation is offered to pro se litigants for settlement conferences. Stay tuned.
“Judges’ Perspectives on Courtroom Management and Security” by Commissioner Jason Cording (Virginia), Judge Heide Mallon (Wisconsin), and Judge Bruno-Bishop (Louisiana)
This distinguished panel discussed the challenges confronted by workers’ compensation judges compared to traditional courts, particularly when it comes to security and other staffing issues. Their recommendations included having judges evaluate their facilities annually to include multiple exits, ability to get security, ability to convert to a video hearing, parking and entry, and staff training. A policy for parties notifying the judge about security concerns is a must and should be reevaluated often. Many jurisdictions have bailiffs and most have a panic button or alarm. Screening prior to entry and a procedure for communication with local law enforcement are important considerations. Being mindful of litigant interaction, body language, and diffusing skills are important for all judges. The panel strongly recommends situational awareness, home security, travel caution, and social media restraint.
“Ensuring Justice is Not Lost in Translation” by Judge Colleen Bero-Lehmann (Wisconsin), Commissioner Lynne Ferris (Virginia), and Mr. Victor Hertz, President of Legal Language Services
This panel examined the rights of litigants in the framework of due process and the necessity of understanding and fully participating in proceedings. In 2019, the most frequently spoken languages in the United States were English, Spanish, Chinese, Tagalog, Vietnamese, and Arabic. Virginia provides foreign language interpreters at its expense for evidentiary hearings, although parties are allowed to provide their own interpreters at their own expense. The panel suggests that judges should assess the proficiency of parties and witnesses to participate without interpretation and intervene if necessary. Interpreters should always be placed under oath for accurate and impartial service to the court. Giving instructions to the interpreter and the witness is advisable. The interpreter’s role is to listen and convey what is said, not to give advice or make suggestions. The presentation ended with a discussion of various scenarios encountered by adjudicators in hearings with interpreters and non-English speaking persons.
“Mental Health/Mindfulness for Judges” by Judge Melissa Distler (Florida), Judge David Langham (Florida), and Mr. John Lesko, Outreach & Interventions Representative of Florida Lawyers Assistance
Mr. Lesko gave an excellent presentation on the deep burdens lawyers and judges can carry from the weight of the matters that come before us and the pressure we put on ourselves in the performance of our jobs. He and the panel also shared many tools and resources for adjudicators from stress relief techniques to true intervention and recovery options.
Conclusion
On behalf of all members, we send sincere appreciation to Judge Shannon Bruno of Mississippi, the NAWCJ Conference Committee Chair, and Deputy Commissioner Jason Cording of Tennessee, the NAWCJ Curriculum Committee Chair, and their committee members for an excellent College!