‘Rogue’ workers’ comp commissioner’s reappointment opposed

An appellate opinion published in 2012 came back to haunt the vice chair of the South Carolina Workers’ Compensation Commission earlier this month as she stood before a state Senate subcommittee and asked to keep her job for another six years.

Susan Barden is seeking a third term as a commissioner on the WCC – a $124,000-a-year position that she has held since being appointed by the governor in 2004. Barden’s supporters say she is an equitable judge who issues thorough, well-reasoned orders.

“I’ve had tons of cases in front of her,” said Johnnie Baxley, a workers’ compensation defense attorney at Willson Jones Carter & Baxley in Charleston. “Although I don’t always agree with her results, I’ve never seen any evidence of bias. My experience has always been that she’s fair and impartial.”

But a group comprised of personal injury lawyers, former WCC commissioners and a prominent legal scholar and ethics expert is staunchly opposed to her reappointment.

They say that Barden is biased toward some lawyers and certain types of claimants, especially African-Americans and members of law enforcement, and has a troubling tendency to use subjective credibility findings as a pretext to rule against those claimants, even when the evidence is overwhelmingly in their favor.

“She basically says, ‘This person is not believable because she didn’t look me in the eye,’ or ‘When she cried she didn’t have snot coming out of her nose,’” said Greenville personal injury lawyer Douglas Churdar.

The aforementioned ethics expert, Gregory Adams, a professor at the University of South Carolina School of Law who in 2009 and 2010 was invited to teach Barden and her fellow commissioners about their ethical duties as judges, wrote in a letter to the Senate judiciary subcommittee that Barden lacks the “character and moral fitness required to serve on the” WCC.

“Both employers and claimants deserve impartial justice,” he wrote. “Neither can count of [sic] getting an impartial, just ruling from Commissioner Barden. Justice for the people of South Carolina requires that she no longer be allowed to violate the Code of Judicial Conduct with impunity.”

He added in the letter, “Facts and evidence are the basis for justice; the personal animus of a rogue commissioner is not!”

Adams also testified March 23 during the nearly three-hour long subcommittee hearing on Barden’s reappointment, saying that his negative opinion of her was based “almost exclusively” on her ruling against Greenville police officer Kellie Burnette. Others who testified against Barden also cited the Burnette case.

Barden found that Burnette was not permanently and totally disabled as the result of a back injury she sustained when she was dragged and thrown from a fleeing suspect’s car, despite uncontested medical evidence supporting the officer’s disability claim.

Barden, who is not a medical doctor, had compared sets of MRIs taken before and after the dragging incident and determined that the images did not prove Burnette’s claim, despite the fact that none of the testifying physicians or medical records corroborated that view.

A unanimous three-judge panel for the South Carolina Court of Appeals reversed Barden’s ruling in 2012, finding that she overstepped her bounds when she took it upon herself to interpret the medical images and issue a “particularly disturbing” order that disregarded “substantial evidence in the record.”

Barden had written in her order that she thought Burnette had “exaggerated her condition” and was “someone who simply [did] not wish to work.”

‘Lawyers are running away from her’

“Kellie is still stung by the things Commissioner Barden wrote about her in that order,” said Churdar, who represented Burnette in her workers’ comp claim.

He added that Barden, a lawyer, understands that credibility findings from a lower court are only reversible if there is an obvious abuse of discretion, meaning that such findings are difficult to challenge.

Churdar also said that he was unaware of the other six commissioners, three of whom are not attorneys, ever using credibility findings as a basis to disregard evidence until after Barden started the trend.

“But now you’re seeing it more,” he said.

“She changed the way they [commissioners] look at things,” said Florence workers’ compensation lawyer Hood Temple of Hatfield Temple. He testified in opposition to Barden’s reappointment, unlike Churdar, who learned of the hearing after it was finished.

“If they [claimants] don’t look her in the eye they are liars,” Temple added. “If they’re uncomfortable being in a hearing situation that 99 percent of the world would be uncomfortable in she says they’re lying.”

Lola Richey, a personal injury lawyer in Greenville who was subpoenaed to testify during Barden’s hearing, told members of the subcommittee that she began to recognize a troubling trend in Barden’s orders as far back as 2006 or 2007.

“I noticed that I was getting these orders that were just scathing, just basically calling my clients … scum,” she said. “Some of my African-American women, they were starting to get kind of slammed. Eventually, I said, ‘Fine. I’m not going to take any more cases in front of Commissioner Barden. I’m not going to risk it.’”

The number of hearings that Barden has conducted on workers’ compensation claims have “dropped dramatically” over the last few years, according to subcommittee member Sen. Ross Turner, a Greenville Republican.

The WCC’s response to a public records request from Temple revealed that Barden conducted a total of 284 hearings that resulted in written orders between March 2014 and March 2016. During that time, she has averaged about 11 hearings a month – most commissioners have about twice that number of hearings in an average week.

“Lawyers are running away from her. They don’t think they’re going to get a fair hearing. If you have any imperfections in your client, that can be used subjectively against them,” said an experienced workers’ compensation attorney who is close to the situation and asked to remain anonymous out of fear of reprisal.

The source cited a Feb. 29 cease and desist letter from Columbia lawyer Camden Lewis warning Temple to stop talking about ethics complaints that had been made against Barden and subsequently dismissed by the state’s Office of Disciplinary Counsel.

“If he [Temple] does not cease and desist raising these negative inferences, we have no other choice than to take the steps necessary to redress this uncomfortable situation,” the letter stated.

The WCC also revealed to Temple in response to his records request that it had paid $5,491 in legal fees and costs for Barden, in her capacity as a commissioner, between January 2011 and March 2016.

Adams, the USC law professor and ethics expert, wrote in his statement to the subcommittee that “many other potential witnesses have not come forward [to speak against Barden] out of concern about possible retribution.”

“I can tell you though, that in the 38 years that I have been a law professor in South Carolina, I have never heard so many complaints by lawyers about the unethical conduct of a judge as you have heard about Commissioner Barden,” he added.

Barden’s low hearing numbers are directly related to the complaints about her, according to the unnamed source, who said: “She uses her credibility findings to support whatever result she seeks. If she likes the lawyer she starts with the result and figures out a way to support it with her credibility findings. That’s why you see the minimum number of people in front of her.”

WCC commissioners move between judicial districts every two months, which means that lawyers can dodge certain commissioners by requesting continuances or taking other actions to delay their cases until a new commissioner is assigned to their district.

“You go on vacation if you have to,” former WCC commissioner Alan Bass of Mickle & Bass in Myrtle Beach told lawmakers while testifying in opposition to Barden’s reappointment during the subcommittee hearing.

Former commissioner Holly Atkins, who chaired the WCC and now is a workers’ compensation attorney in Columbia, also spoke against Barden, while another ex-commissioner, Bryan Lyndon, backed her reappointment.

‘People taking cheap shots’

“I’ve been doing this for 20 years and I’ve seen a couple [reappointment hearings] that got a little contentious, but this is probably the most contentious one I’ve ever seen,” said Baxley, the Charleston lawyer who supports Barden.

Several attendees reported seeing Barden shed tears as she listened to the testimony against her.

“I see this as people taking cheap shots. They’re bullies,” said Charleston personal injury lawyer Dusty Rhoades, who endorsed Barden at the subcommittee hearing.

“I don’t know her aside from as a commissioner. I’ve lost cases big with her and I’ve won cases big,” he added. “I think she’s been wrong in some of my cases, but all you can really expect from anybody is a fair, good-faith hearing. I know I get that with her.”

Rhoades criticized Adams for apparently basing his opinion of Barden on the Burnette case, saying that the professor’s testimony at the hearing was “embarrassing.”

“You read one case and you have the gall to get up there and say, ‘I see a pattern,’” Rhoades added. “We’re talking about one case out of thousands. Nobody’s going to be perfect.”

Barden offered a similar response during her hearing, saying: “I don’t always get it right. That’s why we have appeals. … And if I miss something, I want to be corrected. Yes, I’ve been reversed. I’ll continue to be reversed. … I’m not infallible.”

Between 15 and 20 percent of Barden’s orders have been appealed over the last five years, according to subcommittee testimony, though the number of her rulings that have been reversed was not disclosed at the hearing. She did not respond to interview requests.

But she testified that 2014 and 2015 were her “busiest years” on the commission, saying that she’s had to deal with numerous remands that don’t show up in her hearing counts.

“It’s a busy, busy job,” she said.

She added later in the hearing, “I find the service immensely satisfying. I would be grateful to get another turn.”

The subcommittee passed Barden’s reappointment to the full Senate judiciary committee, which is expected to consider her in the coming days. If she passes the full committee, she will go to the Senate floor for a vote.

Follow Phillip Bantz on Twitter @SCLWBantz