Solutions to Common Problems

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An excerpt from Behind The Closed Doors

Who ‘decides’ the Decisions?

Chapter 10

In Chief Justice William Rehnquist ’s book The Supreme Court, Rehnquist goes into great length as to how the United States Supreme Court determines what cases it will hear and how it arrives at its decisions. In some ways, the Board is not that different but in other ways it is the opposite. Because the ARD/OoA gets the appeal first and writes the PMoD before the commissioners are even aware of the case, the question has always been: “Do the writers write the PMoD and the Commissioners approve it or do the writers draft a decision for the Commissioners to consider if that PMoD is appropriate?” This is a far more important issue than one may think because:

• The 60+ writers who make up the ARD/OoA are far less consistent than 12 commissioners and four panels.

• The commissioners have been appointed by the Governor and confirmed by the Senate to further the philosophy of the Governor in their interpretation of the Workers’ Compensation law.

• To whatever extent those who do the decisions are subject to public scrutiny, it is the commissioners whose names, and the governor’s by default, that are on the decisions, and it is these commissioners whose employment is subject to periodic review (reappointment) and a governor subject to reelection. The OoA staff are civil servants, in a sense, answerable to no one.

Equally important is that over the course of time, the legal profession should have developed an understanding of the thinking of each of the commissioners as well as an understanding of how well each commissioner fits into the system. Every commissioner at one time or another has conducted a hearing at which the attorneys have appeared, hearings at which the commissioners act alone or as a member of a panel of three. As a result, the attorneys have an impression of who seems to be knowledgeable about the cases and issues before them and is able to ask pertinent and substantive questions and which commissioners sit silently throughout the entire proceedings, the insouciants of the system, and which act as the inquisitor equal to the Potemkin Village of legal inquiry.

To read more, click on Behind The Closed Doors…