Clayton G. Walker
v.
Freeman’s Electric Service, Inc. and United Fire Group (UFCS)
HF No. 70, 2019-20
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
June 17, 2020
RE: HF
No. 70, 2019/20 – Clayton G. Walker v. Freeman’s
Electric Service, Inc. and United Fire Group (UFCS)
Letter
Decision
Dear
Mr. Walker and Ms. Hensley:
This
letter is regarding the various motions referenced below and
all responsive briefs. Clayton G. Walker (Claimant) filed a
Petition for Hearing on December 27, 2019 alleging that he
suffered injuries to his right shoulder and head on June 1,
2019 in the course of his employment with Freeman’s
Electric Service, Inc (Employer) which was at all times
pertinent insured for worker’s compensation purposes by
United Fire Group (Insurer). Employer and Insurer denied
Claimant’s claim for benefits on December 6, 2019.
Other relevant facts will be discussed below.
Claimant’s
Motion to Recuse ALJ Faw:
Claimant
has moved to recuse me in this matter under Canon 3(c) of the
Judicial Code of Conduct which states “A Judge Shall
Perform the Duties of Judicial Office Impartially and
Diligently”. He asserts that he has requested a full
copy of his “docket” multiple times, and my
refusal to provide it violates his 14th Amendment, 6th
Amendment, and Due Process rights. He claims that I am not
impartial in this matter.
The
South Dakota Supreme Court has provided two bases on which to
disqualify an administrative law judge, “(1) actual
bias on the part of the adjudicator, or (2) the existence of
circumstances that lead to the conclusion that an
unacceptable risk of actual bias or prejudgment inhered in
the proceedings.” Voeltz v. John Morrell &
Co., 1997 S.D. 69, ¶ 11. In this matter, Claimant
has not asserted actual bias or prejudgment inhered in the
proceedings. He has merely expressed his displeasure at being
denied an additional copy of his “docket,” and by
docket he appears to mean the official record. The Department
sent him a copy of the record on February 28, 2020. I also
informed him that it is his responsibility as a Claimant to
keep track of documents that are sent to him.
Claimant’s frustration with the Department for not
sending him additional copies of his record does not amount
to bias.
Additionally,
if Claimant wished to recuse the ALJ assigned to his case, he
had an opportunity to do so within 20 days of receiving
notice that I was appointed to the case under SDCL 62-4-12.2
which states, in pertinent part, “In any contested case
arising under the provisions of Title 62, any party, in
person or by counsel, may informally request the hearing
examiner who, in the ordinary course, would hear the
contested case, to disqualify himself or herself. The
requesting party may, but is not obligated to, state reasons
for the request. The informal request may be by letter, by
oral communication, or by motion not later than twenty days
after notice of the appointment of the hearing examiner to
the case.” Claimant has not proven bias and, therefore,
the Motion to Recuse is Denied.
Claimant’s
Motions for Stenographer, Fees for Expert Witnesses, and
Subpoenas
Claimant
has moved the Department to pay for subpoenas, expert witness
fees, stenographer for depositions, and other costs. Claimant
argues that he is indigent and is unable...
