Opinion
W.C. No. 4-006-520
August 5, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied a claim for permanent total disability and ongoing medical benefits after maximum medical improvement (MMI). The claimant contends the ALJ erred by denying a motion for recusal and denying her attorney's motion to withdraw. The claimant also challenges the sufficiency of the evidence to support the denial of permanent total disability and ongoing medical benefits. We affirm the denial of permanent total disability benefits and remand for additional findings regarding medical benefits.
The claimant sustained injuries to both shoulders in December 1990 while performing duties as a food service worker. The claim was reopened in August 1995 and the claimant subsequently underwent surgical procedures to decompress both shoulder joints. However, the surgeries were largely unsuccessful in relieving the claimant's symptoms. The claimant is now unable to return to work in food service.
After the claimant reached MMI, the matter proceeded to a hearing on the issues of permanent total disability and ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). At the commencement of the first hearing on August 8, 2000, claimant's attorney submitted an unverified motion for recusal. The motion alleged the ALJ was biased against claimant's counsel because of alleged conflicts which occurred when the ALJ was a private attorney, because claimant's counsel filed complaints concerning the ALJ's prior service as a prehearings judge, and because of the ALJ's alleged propensity to rule against litigants represented by the claimant's attorney.
The ALJ denied the motion for recusal because it was not accompanied by a sworn affidavit as required by C.R.C.P. 97. After a recess, the claimant submitted the same motion with the verified signature of claimant's counsel. However, the ALJ declined to reconsider the motion. Claimant's counsel moved to withdraw because of the ALJ's alleged bias, but the ALJ also denied this motion.
Based principally on the testimony of the respondent's vocational expert (Ms. Pickett), the ALJ found the claimant retains "efficiency in some substantial degree in fields of general employment," and the claimant failed to prove she is not regularly employable in a well known branch of the labor market. The ALJ specifically credited Pickett's testimony that the claimant retains sufficient residual skills to perform work as a customer service representative or receptionist.
The ALJ also denied the claim for Grover medical benefits. The ALJ found the claimant's evidence in support of the award was from unauthorized physicians, and there was "no persuasive evidence that any of the authorized treaters are now recommending additional care." (Findings of Fact 24, 25). In particular, the ALJ stated that two authorized physicians, Dr. Sacha and Dr. McCranie, "anticipated continued medication needs for only one year after their 1998 evaluations."
I.
On review, the claimant first contends the ALJ erred in denying the motions for recusal and withdrawal. Because these motions raise related issues, we consider them together.
The rules of civil procedure apply to workers' compensation proceedings if they are not inconsistent with the statutory procedures established by the Act. Kroupa v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA2088, July 18, 2002). We have previously concluded that the procedures established by C.R.C.P. 97, pertaining to "change of judge," are not inconsistent with the Act and apply in workers' compensation cases. Miller v. Ken Caryl Glass, W.C. No. 4-113-859 (February 8, 1993).
C.R.C.P. 97 provides that a judge may recuse herself, or "any party may move for such disqualification and a motion by a party shall be supported by affidavit." This rule has been interpreted to require a verified affidavit setting forth factual allegations which, if true, would show bias or the appearance of bias and prejudice. If the moving party presents a verified affidavit, it is the responsibility of the judge to accept the allegations as true and decide whether they are legally sufficient to require recusal. Goebel v. Benton, 830 P.2d 995 (Colo. 1992). Lack of a verified affidavit is a sufficient basis to deny a motion for recusal. See Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (1970) (upholding trial judge's denial of motion for recusal based on failure to file affidavits as required by an analogous rule of criminal procedure). Rulings on motions for recusal are reviewable under an abuse of discretion standard. M Life Insurance Co. v. Sapers Wallack Insurance Agency, Inc., 40 P.3d 6 (Colo.App. 2001).
Here, the motion for recusal was not verified as required by C.R.C.P. 97. Consequently, the ALJ did not abuse her discretion in denying the motion.
Moreover, we do not think the ALJ abused her discretion by refusing to reconsider the motion after counsel for the claimant had it verified during a recess. An ALJ enjoys wide discretion in the conduct of evidentiary proceedings and the disposition of motions, and the ALJ's rulings may not be interfered with absent an abuse. Section 8-43-207(1)(g) and (h), C.R.S. 2001; Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999). Further, when deciding whether to delay proceedings to reevaluate prior rulings, an ALJ may consider that one of the objectives of the Act is speedy resolution of the claim and the inconvenience and expense to the other party if the proceedings are delayed. Renaissance Salon v. Industrial Claim Appeals Office, supra; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
Here, the record reflects the ALJ took a recess of 37 minutes to consider the claimant's unverified motion for recusal. (Tr. August 8, 2000, p. 4). Presumably, another substantial delay would have occurred if the ALJ had elected to consider the legal sufficiency of the allegations contained in the verified motion. In view of the fact the respondents had an expert witness present to testify, we cannot say the ALJ abused her discretion by rejecting the claimant's request for a second chance to present a legally sufficient motion for recusal. (Tr. August 8, 2000, p. 6).
In light of this disposition, we need not reach the question of whether the allegations contained in the motions for recusal would have required the ALJ to recuse herself.
For the same reasons, we conclude the ALJ did not abuse her discretion in denying the motion to withdrawal. Granting such a motion would have required termination of the hearing, and respondent's counsel objected because of the presence of the expert witness.
II.
The claimant next contends the ALJ erred in relying on the testimony of the respondent's vocational expert to deny the claim for permanent total disability benefits. The claimant argues the testimony was incredible as a matter of law, failed to consider pertinent medical records, and did not account for the effects of the claimant's depression. We find no error.
Under the law applicable to this claim, permanent total disability exists if the claimant has lost and will not regain efficiency in some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). In determining the existence of permanent total disability the ALJ may consider a variety of factors including the effects of the industrial injury in light of the claimant's general physical condition, age, training, experience and education. Ultimately, determination of the degree of the claimant's permanent disability is a question of fact for the ALJ, and she is afforded the widest possible discretion in arriving at this determination. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993).
Because the issue is factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In this regard, we note testimony is not "incredible as a matter of law" unless it is rebutted by hard certain evidence such that the testimony is in conflict with nature or fully established facts. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). Further, the fact an expert witness is not familiar with all of the relevant medical history goes to the weight, not the admissibility of the expert's opinion. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The fact Pickett had not reviewed all medical records at the time of her report went to the weight of her opinion. At the hearing, Pickett was made aware of additional reports and based her opinion on restrictions established by the treating physicians. Under these circumstances, Pickett's unfamiliarity with some medical reports was an issue affecting her credibility which was resoled adversely to the claimant.
We disagree with the claimant insofar as she asserts Pickett's testimony was improper because it exceeded limitations established by the ALJ. Our review reflects claimant's counsel vigorously objected whenever he believed Pickett's testimony was exceeding the scope of the ALJ's order, and the ALJ sustained a number of those objections. The ultimate decision concerning Pickett's credibility remained with the ALJ.
Neither is Pickett's testimony incredible as a matter of law based on her failure to account for the claimant's psychological condition. Pickett explained that although the claimant suffers from depression, no physician has placed restrictions on the claimant's ability to work as a result of this condition. Further, the ALJ was persuaded by the report of Dr. Gronseth that the claimant's psychological limitations are in the mild category, and, inferentially, not serious enough to prevent her from working. Indeed, the ALJ cited the claimant's demeanor, educational attainments and ability to carry out activities of daily living as evidence the claimant retains enough psychological capacity to obtain steady employment. (Finding of Fact 20).
The claimant's argument that the ALJ's order is erroneous as a matter of law because it does not consider the claimant's psychological problems is without merit. The ALJ was explicitly aware of the claimant's condition and credited the opinion of Dr. Gronseth. However, the ALJ was not persuaded the condition demonstrated the claimant was permanently and totally disabled under the legal test. The record contains substantial evidence to support this determination. Insofar as the claimant makes other arguments, we find them to be without merit.
III.
The claimant next contends the ALJ erred in denying Grover medical benefits. The claimant argues the ALJ erred by limiting consideration of the evidence to the opinions of authorized physicians. In any event, the claimant argues the evidence establishes that treating physicians opined the claimant is in need of ongoing treatment.
The claimant is entitled to ongoing medical benefits after MMI if she presents substantial evidence that future medical treatment will be reasonably necessary to relieve the claimant of the effects of the injury or prevent deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). If the ALJ's findings concerning this issue are supported by substantial evidence, they must be upheld on review. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
Here, we are unable to locate record support for the ALJ's finding that Dr. McCranie "anticipated continued medication needs for only one year after" her 1998 evaluation. (Conclusions of Law p. 7). Dr. McCranie's report of September 17, 1998, states the claimant was taking Serzone as prescribed by Dr. Batkis, and the psychology department was recommending continuation of the "pharmacologic approach." The report further indicated the claimant would need follow-up with Dr. Batkis for medication management. We find no time limitation on these recommendations as suggested by the ALJ.
Because the ALJ's finding concerning Dr. McCranie's opinion is not supported by substantial evidence, it must be set aside. Further, we cannot ascertain how the ALJ might have viewed the other evidence had she recognized the true state of the record. Thus, the matter must be remanded for a new order on the issue of Grover medical benefits. The order shall be entered on the existing record and an additional hearing is not authorized.
Because the issue involving the effect of "authorization" on a physician's credibility may arise on remand, we note the following. In Esquibel v. AVX Corp., W.C. No. 3-993-489 (December 11, 1991), we held the "fact that a particular physician is or is not authorized is not a proper basis for assessing the probative value of his opinion." The rationale for this decision was that authorization pertains to the "respondents' liability for treatment." However, we have also held that a doctor's status as an authorized treating physician may be considered in evaluating credibility where it bears on the physician's "ability to observe the relevant medical data." See Ventker v. Royal Globe Flower Farms, W.C. No. 3-808-415 (December 9, 1992).
We should not be understood as expressing any opinion concerning the ultimate issue of whether the claimant proved entitlement to Grover medical benefits. That determination remains an issue of fact for the ALJ.
IT IS THEREFORE ORDERED that the ALJ's order dated March 20, 2001, is set aside insofar as it denied medical benefits. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 5, 2002 to the following parties:
Bonnie C. Menor, 2766 Berry Ln., Golden, CO 80401
Jefferson County School District R-1, 1746 Cole Blvd., #225, Golden, CO 80401-3208
Lissa Pierce, Jefferson County Schools, 1829 Denver West Dr., Bldg. 27, P. O. Box 4001, Golden, CO 80401-0001
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondent)
By: A. Hurtado