Opinion
W.C. No. 4-712-019.
June 3, 2009.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Felter (ALJ) dated February 19, 2009, that denied the claimant's motion to recuse, that determined that the claimant had waived her right to pursue a Division-sponsored independent medical examination (DIME), that determined that the issue of the propriety of the DIME was precluded from being re-litigated and that ordered the claimant's attorney to reimburse the respondent for its attorney fees and costs. We set aside that portion of the order dealing with issue preclusion and otherwise we affirm the order.
This case has a complex procedural history, only the relevant portions of which we set forth here. The claimant sustained a work-related injury on December 3, 2006. The respondent filed a final admission of liability (FAL) based upon a treating physician's report and the claimant filed a notice and proposal for a DIME. However, the claimant did not schedule an examination with the DIME physician selected by the Division of Workers' Compensation (DOWC). The claimant filed an application for hearing concerning the "propriety" of the DIME selection process. ALJ Harr in an order dated March 6, 2008 found the claimant's arguments concerning the DIME process were frivolous and groundless; however, he denied the respondent's request for penalties against the claimant and denied the respondent's request for attorney fees. The respondent sought review of ALJ Harr's order and the Panel affirmed the order.
During the pendency of the appeal of ALJ Harr's order the claimant filed another application for hearing on the issue of the propriety of the DIME selection process. The matter was heard on September 18, 2008 before ALJ Felter. ALJ Felter issued an order on November 5, 2008 determining that the claimant had waived her right to pursue a DIME, that the claimant was precluded from re-litigating the propriety of the DIME selection process by virtue of the doctrine of issue preclusion and ordering the clamant to reimburse the respondent for its attorney fees and costs. The claimant petitioned to review the November 5, 2008 order and ALJ Felter entered a corrected order on November 6, 2008 to correct the omission of the denial of the claimant's motion to recuse that had been omitted from the November 5, 2008 order. ALJ Felter issued a supplemental order dated February 19, 2009, determining that attorney fees, which had been previously awarded erroneously against the claimant should have been awarded against the claimant's attorney. Therefore, ALJ Felter ordered the claimant's attorney to reimburse the respondent for its attorney fees and costs.
We note preliminarily that the claimant has filed a motion for extension of time to reply to the respondent's brief in opposition to the petition to review the supplemental order. We have authority to adjudicate the motion. See § 8-43-301(9), C.R.S. 2008 (panel has authority to issue procedural orders, including those concerning "filing of briefs"). Having considered the claimant's motion and the respondent's objection, we deny the motion for leave to file a reply brief. Accordingly, we have not considered the reply brief accompanying the motion.
I.
On appeal, the claimant contends that ALJ Felter erred in failing to recuse himself. The claimant filed a verified motion to recuse principally contending that ALJ Felter had consistently ruled against the claimant's attorney "simply because he utterly detested, and has always detested," the claimant's attorney. Verified Motion to Recuse at 2. In support of his motion to recuse, the claimant referred to cases in the past where the claimant's counsel appeared before ALJ Felter. The claimant cited as examples of ALJ Felter's alleged bias against claimant's counsel certain actions taken by ALJ Felter during a prehearing conference when the claimant requested the opportunity to depose the head of the DIME section. The claimant contends that the ALJ lost his temper in denying the claimant's request for an order permitting certain depositions and yelled at the claimant's attorney "you're not going to get them. This is your hearing on that and I'm denying it."
ALJ Felter accepted the allegations made in the verified motion as facially true for purposes of ruling on the claimant's recusal motion. ALJ Felter found that the claimant's motion alleged conclusions but no underlying evidentiary facts supporting a reasonable inference of actual or apparent bias. ALJ Felter concluded that the claimant's allegations, accepted as facially true, did not form the basis of a 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 he 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).
Here, although the claimant noted several cases in which ALJ Felter ruled against the client of her attorney there is no allegation that these cases were appealed nor any allegation that the decisions were not upheld on appeal. The case of Hernandez v. Swift Newspapers D/B/A/ Greeley Publishing Company, W. C. No. 4-570-620 (March 8, 2004) is cited by the claimant as evidence of ALJ Felter's alleged bias. We note that although the motion for recusal states that the case is attached, the record before us does not contain it. We further note that there were four appeals to the Panel involving the claim of Hernandez v. Swift Newspapers D/B/A/ Greeley Publishing Company but only one based on an order entered by ALJ Felter. In Hernandez v. Swift Newspapers D/B/A/ Greeley Publishing Company ALJ Felter directed the claimant to attend an independent medical examination and directed the respondent to file an admission of liability within ten days or request a hearing. The claimant appealed and the Panel dismissed without prejudice the petition to review filed by the claimant because it was not final and appealable. The respondent sought attorney fees pursuant to § 8-43-301(14), C.R.S. 2008, based on the filing of a frivolous appeal. However, the Panel concluded the claimant had not had an adequate opportunity to respond to the respondent's request for the imposition of attorney fees pursuant to § 8-43-301(14), C.R.S. 2008, based on the filing of a frivolous appeal. Therefore, the Panel concluded it was necessary to remand the matter to the ALJ with instructions to conduct appropriate proceedings, including a hearing if necessary, to resolve the respondent's request for attorney fees. We do not read the case as evidencing a bias of ALJ Felter against the claimant's attorney.
The claimant also cites the case of Gotcher v. Anderson Maintenance Service W.C. Nos. 4-321-788 and 4-323-745 as evidence of ALJ Felter's bias. Apparently there was no appeal of that case. The claimant requested that official notice be taken of the contents of the Gotcher v. Anderson Maintenance Service file, but no documents appear in the record transmitted to us. It is the obligation of the party desiring the ALJ to consider documents in the Division's file to obtain certified copies from the Division. W.C. Rule of Procedure 9-4 7 Code Colo. Reg. 1101-3. Our review is restricted to the record made at the hearing. See McManus v. Oil Tools Limited, W. C. No. 4-481-926 (April 29, 2002). In our view, the claimant by her recitation of prior cases with ALJ Felter did not carry her burden of demonstrating bias.
Regarding the claimant's contention that ALJ Felter lost his temper at a prehearing regarding certain depositions we note that the claimant did not on review argue that ALJ Felter erred in denying the requested depositions. Moreover, in our view, even assuming as we must that the ALJ "lost his temper," that fact does not establish that he was biased or did not rule correctly or appropriately. See Neoplan USA Corp. v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989) (a previous reference to petitioner's attorney as a "smart-ass" and "a nasty little fellow" is not sufficient to require recusal). Under these circumstances, we cannot say that the ALJ abused his discretion in denying the claimant's motion to recuse.
II.
The claimant next contends that ALJ Felter erred in determining that the claimant, through inaction, had waived her right to pursue a DIME. ALJ Felter found that the claimant's inaction in pursuing the DIME process for approximately one year amounted to a waiver of the DIME process through inaction. We are not persuaded that the ALJ Felter committed error in determining that the claimant had waived her right to pursue a DIME.
Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion. Burlington Northern R. Co. v. Stone Container Corp. 934 P.2d 902 (Colo.App. 1997). To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit. Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo.App. 1991).
The existence of a waiver is a factual matter for the ALJ to determine, and we must uphold his order if supported by substantial evidence in the record. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); C.R.S. 2008. The substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. V. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here ALJ Felter made the following finding of fact on the issue of waiver. The claimant sustained a work related injury on December 3, 2006. The claimant's physician placed her at maximum medial improvement with no impairment on May 29, 2007 and the respondent filed a FAL on June 11, 2007 consistent with the physician's opinion. The claimant filed a notice and proposal for a DIME on June 21, 2007 and after negotiations for a physician to perform the DIME failed the claimant filed an application for a DIME on July 27, 2007. The DOWC selected Dr. Reiss. From August 27, 2007 until the time of the hearing on September 18, 2008 the claimant did not schedule an examination with Dr. Reiss. The claimant knew of the selection of the DIME examiner on August 27, 2007 and knew that she should have scheduled the examination within five business days or by September 4, 2007. Over the past year, the claimant had failed to take any action to set the DIME with Dr. Reiss. The claimant filed an application for hearing concerning the propriety of the DIME selection process and ALJ Harr found that the claimant's arguments concerning the DIME process were frivolous and groundless. The claimant's inaction reflects her intent to relinquish her right to the DIME. Knowing that the Rule required her to schedule the DIME examination within five business days, the claimant failed to schedule the examination at all, up to and including the time of the hearing. The claimant intentionally failed to schedule the examination despite the fact that ALJ Harr found her arguments to be frivolous and groundless. The claimant failed to schedule the examination after being reminded to do so by the respondent. Setting the matter for hearing concerning the propriety of the DIME does not show the claimant's intent to pursue a DIME while challenging the specific process. This contention is inconsistent with the totality of the evidence because the designated issue in the claimant's application for hearing had been previously determined to be frivolous and groundless and not a bona fide dispute over the DIME process. The claimant failed to raise any legitimate challenge to the DIME, and her prior hearing application does not reflect an intention to maintain the DIME process. The ALJ concluded that the totality of the evidence demonstrates the claimant's intent to abandon the DIME.
As we read the claimant's brief she does not appear to contest the ALJ's underlying factual findings on the issue of waiver. Instead the claimant argues that she has a right to have an ALJ determine her hearing request with respect to the propriety of the DIME selection process. The claimant contends she has filed an application for hearing on this issue but it has never been determined. The claimant relies upon the decision in Maestas v. Wal Mart Stores, Inc. W.C No. 4-717-132 (January 22, 2009) in support of her position that she has the right to have her challenge to the DIME procedure heard prior to attending the DIME. However, we disagree that Maestas supports this contention.
It is true that in Maestas, as in this case, the claimant brought a challenge to the DIME panel issued by the Division, and the ALJ dismissed the application for hearing on the grounds that he had no jurisdiction to hear a challenge to the DIME procedures. We dismissed the claimant's petition to review that portion of the ALJ's order on the ground that it was interlocutory and therefore not subject to review at that time. In this respect we relied upon the considerable previous authority stating that orders entered in connections with DIMEs are "evidentiary" in nature and therefore not final until after completion of the DIME. However, contrary to the claimant's argument, nothing in Maestas suggests that the claimant may indefinitely forestall the occurrence of the DIME until her challenge to the procedures are heard and become final. To the contrary, we noted in dictum in Maestas that we understood that the interlocutory nature of the ALJ's order might put the parties to additional delay and expense by requiring the claimant to undergo the DIME prior to having her disputed issues heard and resolved. Apparently it is the claimant's position that the interlocutory nature of the ALJ's order permitted her to hold the DIME in abeyance without fear of a waiver for some indefinite period of time pending review of the interlocutory order. However, we do not understand this to be the law. It is axiomatic that the ALJ's order could only be reviewed in connection with a final order, and that final order was clearly contemplated by the ALJ to be the order resulting from the completion of the DIME. In this regard, we perceive no provision in the statute or in the relevant regulations providing for an automatic stay of the DIME upon a showing that some dispute exists. Rule 11-3(H) provides, to the contrary, that a failure to make the DIME appointment within a specified period of time may result in cancellation of the DIME "absent good cause as determined by the Director or an administrative law judge." In our view this rule contemplates that when requested to do so the Director or an ALJ will evaluate the nature of each dispute and determine whether the appointment procedures should be stayed pending resolution of the dispute. It may well be that in some cases the Director or an ALJ may determine that the matter should be stayed; however, this is not such a case. Indeed, we have been unable to locate in the record any point at which the claimant requested that her obligation to set the appointment be stayed.
Under these circumstances, we agree that the claimant's conduct evidenced a waiver of the right to proceed with the DIME. ALJ Felter's determination that the claimant waived her right to a DIME by delay does not constitute reversible error. See Gaither v. The Resource Exchange, W.C. No. 4-125-439 (September 14, 1994) (a party can waive right to an DIME); See also Myers v. DALM, Inc. D/B/A Champion Messenger Service W. C. No. 4-195-661 (February 01, 1996). Therefore, we are not persuaded to disturb ALJ Felter's order in this regard.
III.
The claimant also contends that ALJ Felter erred in concluding that the issue of the propriety of the DIME was precluded by the doctrine of "issue preclusion." ALJ Felter found that ALJ Harr conducted a hearing on an application concerning the propriety of the Division IME and issued a decision directly addressing the claimant's issue raised by the claimant. ALJ Felter found that the exact issue before him had been previously determined by ALJ Harr to be frivolous and groundless. Therefore, ALJ Felter found the "propriety of the Division Independent Medical Examination" was precluded from being re-litigated by virtue of the doctrine of "issue preclusion." We agree with the claimant that ALJ Harr's order was not an order "on the merits" and, therefore, that preclusive principles do not apply. However, we note that because we have affirmed the ALJ's order that the claimant waived her right to a DIME our resolution of this issue provides no relief to the claimant.
Issue and claim preclusion principles, although developed in the context of judicial proceedings, may be applied to administrative proceedings as well, including workers' compensation matters. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo. 2001). Issue preclusion, is an equitable doctrine that operates to bar relitigation of an issue that has been finally decided by a court or administrative agency in a prior action. Issue preclusion bars relitigation of an issue if (1) the issue sought to be precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa, Inc. v. Cooper, supra.
Insofar as the claimant argues that a dismissal on jurisdictional grounds has no preclusive effect, we agree with that argument. The court of appeals has stated that "[i]t is well-settled in Colorado that a dismissal for lack of subject matter jurisdiction is not a judgment on the merits. . . ." Estate of Murphy, 195 P.3d 1147, 1153 (Colo.App. 2008). See also C.R.C.P. 41(b)(1) (dismissal for lack of jurisdiction is not an adjudication on the merits). Therefore, ALJ Harr's order dismissing the claimant's application for hearing based upon the ALJ's purported lack of jurisdiction to resolve disputes over the DIME procedures was not a "final judgment on the merits" for purposes of claim or issue preclusion. Accordingly, we set aside that portion of the ALJ's order.
We note again, however, that our ruling in this respect does not provide the claimant with an opportunity to have this issue adjudicated. It is unnecessary for us to remand the matter for any further proceedings because we have affirmed the ALJ's ruling that the claimant waived the right to undergo a DIME. Therefore, the ALJ's application of the doctrine of issue preclusion is error, but it is harmless in the context of this proceeding.
IV.
The claimant contends that the ALJ erred in ordering reimbursement of the respondent for its attorney fees and costs incurred in defending the propriety of the DIME a second time for the hearing of September 18, 2008. The respondent argues that the claimant's attorney failed to intervene and appeal the February 19, 2009 supplemental order and therefore that order became final on the issue of attorney fees. The respondent, citing Henderson v. Bear 968 P.2d 144 (Colo.App. 1998), argues that, although the claimant filed a petition to review, the claimant was not the adversely affected party, therefore, the claimant lacked standing to appeal the supplemental order regarding attorney fees. We agree with the respondent's argument.
In general, standing to challenge the order of an adjudicative tribunal is a jurisdictional prerequisite to review or appeal of that order. See O'Bryant v. Public Utilities Commission, 778 P.2d 648 (Colo. 1989); In re Trust of Malone, 658 P.2d 284 (Colo.App. 1982). Based upon the court's analysis in Adams v. Neoplan U.S.A. Corp. 881 P.2d 373 (Colo.App. 1993) we conclude that claimant had no standing to seek review of the ALJ's supplemental order of February 19, 2009 order awarding attorney fees against her attorney.
In Adams v. Neoplan U.S.A. Corp. supra, the ALJ assessed attorney fees and costs against respondents' attorney. Respondents filed a petition for review with the Panel, and the claimant contended that the respondents had no standing to challenge an award entered against their attorney. The Panel construed the petition as being filed on behalf of the attorney, and therefore, rejected claimant's argument. The Colorado Court of Appeals set aside the Panel's order and remanded with directions to reinstate the order of the ALJ. Based upon this authority, we conclude that counsel for the claimant lacks standing to challenge the ALJ's order. Adams v. Neoplan U.S.A. Corp., supra. The claimant's attorney was required to file his own petition to review, but failed to do so. Leonardi v. Kersen Construction, W.C. No. 4-585-605 (January 26, 2007). Therefore, we are without jurisdiction to review the ALJ's award of attorney fees against the claimant's attorney.
IT IS THEREFORE ORDERED that the portion of the ALJ's order issued February 19, 2009, ruling that the claimant was precluded from relitigating the propriety of the DIME is set aside.
IT IS THEREFORE FURTHER ORDERED that ALJ Felter's supplemental order issued February 19, 2009 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
ALICE RODRIGUEZ, FORT MORGAN, CO, (Claimant).
SAFEWAY STORES, INC., Attn: SUE POLYAKOVICS, DENVER, CO, (Employer).
RICHARD K. BLUNDELL, ESQ., C/O: LAW OFFICES OF RICHARD K. BLUNDELL, GREELEY, CO, (For Claimant).
DOUGLAS THOMAS, ESQ., C/O: THOMAS, POLLART MILLER, LLC, GREENWOOD VILLAGE, CO, (For Respondents).