Use of the “Affidavit” in Arizona Work Comp Litigation

Use of the “Affidavit” in Arizona Work Comp Litigation

Generally speaking, the Administrative Law Judges who decide cases at the Industrial Commission of Arizona are very good.  They get the decision right more often than not.  Their decisions are usually well thought out.  And, for what the job pays, the Commission has been able to attract some very well-qualified lawyers to become judges.  One of the tools that a lawyer representing injured workers before the Industrial Commission has, is that of the “affidavit of bias and prejudice”.  This is a Rule of Procedure of the Industrial Commission that allows an attorney to ask that a case be reassigned to another judge “upon a showing of bias and prejudice” of the judge to whom it has been assigned.  In practice, no actual showing of real bias or prejudice has to be proven – the mere allegation is sufficient – and the case is reassigned with no questions asked.  This tactic is used quite often by a lot of workers compensation attorneys to avoid judges who they feel too frequently rule on one side or the other.

In my practice, I very rarely use the Affidavit to change judges.  Very rarely I will think that a particular judge will not like my particular client or will remember a former ruling of a judge that was either very sympathetic or very antagonistic on a specific issue or with a specific expert witness.  But I think it should be the exception and not the rule.  Affidavits of Bias and Prejudice must be filed within 30 days of the issuance of the Notice of Hearing.  Make sure you file it timely or you’ll be stuck with the judge that you just called “biased and prejudiced”!