Offers of Proof

Thursday, May 22, 2014 | 0

A recent ruling from North Carolina reminds us of some core issues in the administrative litigation process.

Workers' compensation this year is witnessing Oklahoma and Tennessee transitioning to administrative rather than court processes for workers' compensation litigation. Alabama now stands alone in having their workers' compensation disputes decided at the trial level in constitutional state courts.

In Florida, one result of the limited powers of the Judges of Compensation Claims, a product of being administrative instead of in the constitutional court, is the inability for JCCs to address constitutionality issues. Determination of those issues is not within our statutory authority. Despite this the OJCC nonetheless has an obligation to afford the litigants with their due process. Professors can wax poetic for hours on the subject, but reduced to its essentials, procedural due process under the Constitution is essentially a right to know that proceedings will occur (notice) and a chance to tell your side of the story (opportunity to be heard).

The Florida 1st District Court of Appeal several years ago addressed how JCCs provide due process to those challenging the constitutionality of workers' compensation, in Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005). There, the court noted that the JCC lacked authority to decide the constitutional issue, which the parties each conceded. The court held though that the claimant has every right to "build his record for appeal." That is, the parties can introduce evidence and argument at trial before a JCC, which bears on issues, such as constitutionality, that the JCC has no authority to decide.

In that case, there was some argument that the JCC could not compel discovery or disclosure of information or evidence because it was not relevant to the issues which the JCC would decide, that is constitutional issues. Despite the inability to decide that issue, the process in our administrative setting is to raise the constitutional challenge in the administrative trial proceeding, preserve the record by presenting evidence and then prosecute the constitutionality concerns on direct appeal of the administrative proceeding, all explained in  Brown. Having built the record before the JCC, that record is complete and ready for the Court to competently address the constitutional questions.

Recently in North Carolina, the Court of Appeal addressed a similar dispute in Willard v. VP Builders, No. COA13-413. This involved a complex discovery dispute in a death case, essentially whether use of a medication prescribed following the work accident caused the death. The parties had a stipulation regarding discovery, which is part of the interest in this case. They agreed that if a particular expert disputed the results of some testing, then they would conduct certain other discovery in the case. This is interesting because it illustrates the important point that parties can often solve their own disputes, as they did in large part in this case. That is efficient and should be encouraged.

When the parties reached a disagreement on their discovery, the Employer in Willard moved the deputy commissioner to "extend the record" and thereby include additional depositions in the evidence presented. The deputy denied their request. The employer then filed a motion to make an "offer of proof," which the deputy also denied. The result was the deputy depriving the appellate judges of the full record. After losing at trial, the employer sought review by the commission, and their request to make an offer of proof to preserve their record for the Appellate Court was again denied.

Last December, the Appellate Court had to remand the case to the commission for the purpose of "allowing Defendants to make an offer of proof." So, round one of the appellate process before the Court was all about the denial of an offer of proof. Time, money and effort was expended essentially on the simple question of what information should be included in the record, not whether that information is meaningful, conclusive, persuasive. No, just whether it would be seen by the appellate court. It is no surprise that the Court's December analysis of this case resulted in the answer it did, and a requirement that the Commission provide that information for appellate review.

In May, in Willard, the North Carolina court explained the rationale for trial courts to facilitate the appellate record. They reminded that "the offer of proof requirement is imposed for the benefit of two different audiences." These are the trial judge, who might change her or his mind about a decision excluding evidence, and the appellate court. They noted that for appeal, "the offer" is "essential."

The court in May held that "the appellate court can make much more intelligent decisions as to whether there was error . . . and whether the error was prejudicial" if the offer of proof, the "proffer" is included in the record by the trial judge. Without the proffer, the Court noted, "we can only speculate as to what a witness's testimony might have been." (citations omitted). The court reminded litigants that to prove trial judge's exclusion of evidence is grounds for reversal, "the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious."

It seems "obvious" might be in the eye of the beholder, and the better rule for counsel would be to follow the first clause of that quote and make sure the significance is demonstrated in the record.

As in Anderson, the court in Willard explains the due process obligations of the trial judge. Willard is a worthwhile read for the reminders it provides on preserving a sound record for the dual purposes of affording the trial judge with the appropriate opportunities to make sound decisions and for meaningful and timely appellate review.

If the deputy commissioner or commission had allowed the offer of proof, the December 2013 remand in Willard, and the expense and time associated with it would have been avoided. If the offer of proof had been allowed, the ultimate decision of the court on May 6, 2014, would likely have been made and provided to the parties six months ago in December. All of the expense and time associated with the offer of proof issue would have been avoided.

While Willard is of course not binding on proceedings outside of North Carolina, it is a clear and helpful explanation of the benefits of offers of proof and preservation of evidence for appellate review. It is a worthwhile read. 

David Langham is deputy chief judge for the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.