Opinion
W.C. No. 4-533-074 4-532-621.
August 20, 2004.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Henk (ALJ) which denied the claims for workers' compensation benefits. The claimant argues the ALJ's findings of fact are not supported by substantial evidence. The claimant also seeks review of an order denying a motion for recusal. We affirm.
In these consolidated claims, the claimant alleges that she sustained a neck injury in the nature of an occupational disease from using a computer station which was not properly designed. The claimant testified that the symptoms of this condition first manifested themselves in the year 2000. The claimant further testified the neck condition was aggravated on January 16, 2002, when she was involved in a physical altercation with a co-worker. The injury allegedly occurred when the co-worker attempted to grab a can of Lysol from the claimant's hand (Lysol incident). However, the ALJ first denied the claims in an order dated January 7, 2004. The initial order was amended in a Supplemental Order dated June 9, 2004.
In denying the claim for the occupational disease the ALJ discredited the claimant's testimony that she repeatedly requested modification of her work station, and the ALJ credited the conflicting testimony of the company president and the claimant's supervisor.
The ALJ also found the claimant's testimony that she experienced symptoms from the disease beginning in 2000 was not supported by the medical records, particularly those in December 2001 and January 2002, when the claimant was treated for neck pain but there is no mention in the records of a work-related condition. Similarly, on January 28, 2002, the claimant sought treatment for neck pain but there was no mention of the Lysol incident in the medical record. Finally, the ALJ credited the opinions of two medical experts, Dr. Bainbridge and Dr. Beatty, that the claimant's neck symptoms are the result of underlying emotional problems, not the alleged injuries. Consequently, the ALJ found the claimant failed to prove any compensable injury.
I.
On review, the claimant make numerous arguments concerning the sufficiency of the evidence to support the ALJ's findings, the ALJ's credibility determinations, and the inferences which the ALJ drew from the evidence. We perceive no error.
The claimant had the burden to prove an injury or injuries proximately caused by an injury arising out of and in the course of her employment. Whether the claimant met that burden of proof is a question of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Because the issue of causation is factual, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Where, as here, there is expert medical opinion, it is for the ALJ to determine the weight and credibility of such evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The mere fact that some evidence and inferences might support different findings and conclusions affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The claimant's assertions notwithstanding, the respondents' lay evidence, including the testimony of the company president, may not be classified as incredible as a matter of law. The mere fact that testimony is conflicting, arguably inconsistent or biased does not render it incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). Our review of the record reveals that the testimony challenged by the claimant presented an issue of credibility for the ALJ, and we may not substitute our judgment for hers on such matters. This is especially true where the claimant's own testimony presented substantial credibility issues.
Similarly, there was no error in the ALJ's reliance on the expert opinions of Dr. Bainbridge and Dr. Beatty. Contrary to the claimant's contention, the ALJ plausibly interpreted Dr. Bainbridge's report as reflecting the opinion that the claimant's symptoms are psychological in origin. This is true because Dr. Bainbridge recommended against further "hands on treatment" and referred the claimant to a psychiatrist. While other interpretations might be possible, we cannot say the ALJ's interpretation was incorrect as a matter of law. Finally, the ALJ was aware that Dr. Beatty performed and independent medical examination and was not a treating physician. The effect of that fact on Dr. Beatty's opinion was a question of fact for the ALJ. Finally, the ALJ was not required to mention and expressly discredit medical evidence which she found unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant has made several other arguments concerning various findings of fact. These arguments reflect the claimant's opinions concerning the inferences which the ALJ should or should not have drawn from various pieces of evidence. We have reviewed the record and find that, although the evidence is susceptible of conflicting interpretations, the ALJ's findings are supported by substantial evidence. Therefore, the Supplemental Order must be affirmed.
II.
The claimant contends the ALJ should have recused herself. The motion for recusal alleges that after entry of the first order the claimant discovered the ALJ was a former employee of respondents' counsel. The ALJ denied the motion for recusal by order dated April 1, 2004. The ALJ concluded that the facts alleged in the motion are insufficient to give rise to a reasonable inference of bias or prejudice sufficient to warrant recusal.
An ALJ is presumed to be competent and unbiased unless the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Recusal is not warranted unless the ALJ has a personal, financial, or official stake in the outcome of the case. See Neoplan USA Corp v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989).
The ALJ correctly recognized that she was required to accept the facts alleged by the claimant as true, and then determine whether the alleged facts create a reasonable inference that the ALJ is or appears to be biased or prejudiced. S.S. v. Wakefield, 764 P.2d 70, 73 (Colo. 1988). We review the ALJ's resolution of these questions under an abuse of discretion standard. Hammons v. Birket, 759 P.2d 783 (Colo.App. 1988). Consequently, we must uphold the decision unless it is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The ALJ is subject to the Colorado Code of Judicial Conduct (Code). Section 24-30-1003(4)(a), C.R.S. 2003; Executive Order D 008 01, May 29, 2001. Canon 3 C. (1)(b) of the Code addresses a judge's duty to recuse herself based on prior association with an attorney involved in a pending case. Canon 3 states that a judge should disqualify herself if the "judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter." Although this Canon may not be dispositive of the issue, it provides substantial guidance to a judge considering a motion for recusal based on prior association with an attorney. See People v. Julien, 47 P.3d 1194 (Colo. 2002) (applying Canon 3 to judge formerly employed by district attorney's office during pendency of defendant's case).
Here, there is no allegation that the ALJ was employed by respondents' counsel during the pendency of the claims which are the subject of this case. Neither is there any suggestion of a continuing relationship between the ALJ and respondents' counsel which might fairly call into question the ALJ's impartiality. Finally, there is no showing of a personal, financial or official stake in the outcome of the case which would warrant the ALJ's recusal. Under these circumstances, the ALJ did not abuse her discretion in denying the claimant's motion.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated June 9, 2004, is affirmed.
IT IS FURTHER ORDERED that the ALJ's order dated April 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
Mahmonir Amini, Morrison, CO, Charlene Tatum, Coaxial Analysts, Inc., Aurora, CO, Twin City Fire Insurance Company, c/o Frances E. Wood, Hartford Insurance Company, Houston, TX, Kevin C. Smith, Esq., Denver, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondents).