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When Can a Judge be Recused?

  • Dave Brown, Esquire
  • 01/25/2021

Recusal is a fancy legal term that you may have heard over the years while watching legal dramas on TV but you do not fully understand. We’re going to tell you exactly what that term means and how it could affect your workers’ compensation case.

Recusal is defined as a challenge of a Judge (or prosecutor but this is inapplicable in workers’ comp. cases) because of a possible conflict of interest or lack of impartiality.

The workers’ comp. law in Pennsylvania provides that a Workers’ Compensation Judge must conduct a fair and impartial hearing and in doing so must be unbiased and avoid a conflict of interest or even the appearance of a conflict of interest.

We will give you some examples to show what exactly that means so you understand better when recusal is appropriate in a case and when it is not.

Let’s say that you have injured yourself at work and the insurance company is fighting your claim so you hire a lawyer who files a petition for benefits on your behalf. Suppose at the first hearing, the Judge recognizes your last name and after asking some questions learns that he is friends with your cousin. The Judge will have to recuse himself because this connection creates a conflict of interest and will prevent the Judge from being impartial when deciding your case. As a result, another Judge will be assigned to your case.

The Judge may be informed by your lawyer at the first hearing what doctors you are treating with for your work injuries, and who your “medical expert” will be. This is the doctor your lawyer will take a deposition of to establish the injuries you sustained at work and how they have affected your ability to do your job.

Suppose that your lawyer states that your medical expert will be Dr. John Alexander, an orthopedic surgeon, and the Judge chimes in, “Dr. Alexander performed surgery on my back two years ago. I treated with him for six months and then he operated on me.” This is likely to affect the Judge’s ability to remain impartial in your case, especially if the Judge liked the doctor and had a successful surgery. If the Judge does not recuse herself, she will eventually have to write a decision in your case. In doing that, the Judge will have to review Dr. Alexander’s testimony and decide whether it is credible or not credible. The Judge would have difficulty doing this impartially given that she has been Dr. Alexander’s patient. The Judge should recuse herself — if not, you can be sure that the lawyer for the insurance company will make a motion for recusal, which the Judge will probably grant.

The situation would be different if the Judge saw the doctor for two office visits 10 or 15 years ago and the doctor did not perform surgery — just did some evaluations, prescribed medication, and that was it. Under these circumstances, because the Judge was a patient of the doctor’s so long ago and for such a short time, recusal is probably not necessary.

Here’s another hypothetical for you. The first hearing is held before the Judge, and you testify about your job, injuries, medical treatment, and why you cannot do your job. Your lawyer warned you beforehand that the Judge worked as an insurance company lawyer for 20 years before becoming a Judge and is often not sympathetic toward the injured worker.

While you are testifying, the lawyer for the insurance company makes some legal objections, and the Judge consistently sustains the objections and prevents you from completing your answers. However, when the insurance company lawyer is asking you questions, your lawyer lodges a few objections, and the Judge routinely overrules them. Furthermore, the Judge, through his gestures — shaking his head, rolling his eyes — gives you the strong impression that he does not have a favorable opinion of you.

After the hearing, you sit with your lawyer in a conference room and are fuming about how unfairly the Judge treated you. “He ruled in their favor on just about every objection. I could tell from the way he looked at me that he doesn’t like me. He’s obviously on the side of the insurance company because of his background. Let’s ask for a different Judge.”

While your points would all be valid, if your lawyer files a motion for recusal, it would undoubtedly be denied because the law is clear that adverse rulings by a Judge are not enough to demonstrate bias such that recusal is warranted. Likewise, it doesn’t matter that the Judge did work for insurance companies when he practiced as a lawyer. He might have a tendency to rule in favor of insurance companies based on his prior work, but unfortunately, that’s not going to be enough to get him recused and your case assigned to another Judge.

This recusal issue doesn’t come up very often, and Judges are almost always able to preside over a case fairly and impartially. But there are complex issues in every workers’ compensation case, and that’s why you need an experienced lawyer on your side. At Pearson Koutcher Law, workers’ comp. is all we do. Every one of our lawyers has handled workers’ comp. cases on behalf of injured workers for more than 20 years and will fight the insurance company hard for you. If a motion for recusal is warranted, we will file it. If it’s in your best interest to settle your case, we will try to get you the highest settlement possible. If we have to fight your case before the Judge, we will do that. Please call us for a free, comprehensive evaluation. We look forward to representing you in your workers’ comp. claim.