IN THE MATTER OF THE CLAIM OF LINA ABREGO, Claimant, v. EXCEL CORPORATION, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-468-907Industrial Claim Appeals Office.
April 17, 2003

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied permanent partial disability benefits. The claimant contends the ALJ erred in failing to recuse himself from the claim. We disagree, and therefore affirm.

The claimant applied for a hearing to overcome the DIME physician’s zero impairment rating. A hearing was scheduled for June 11, 2002. At the commencement of the hearing, the claimant’s attorney requested the ALJ recuse himself. (Tr. p. 4). The ALJ denied the motion for failure to comply with C.R.C.P. 97. (Tr. p. 6).

On August 9, 2002, the claimant filed a written motion for recusal which was accompanied by an affidavit from his attorney of record. On August 30, 2002, the ALJ denied the written motion for recusal.

In an order dated September 29, 2002, the ALJ found the claimant failed to overcome the DIME physician’s rating by “clear and convincing evidence.” Therefore, the ALJ denied the claim for permanent partial disability benefits.

Initially, we reject the respondent’s contention that the claimant failed timely to file the petition for review. Section 8-43-301(2), C.R.S. 2002, provides that a petition to review must be filed at “the place indicated in the order,” within twenty days of the date the ALJ’s order is mailed to the parties The statute also allows the petition to be filed by mail. If filed by mail, the petition:

“shall be deemed filed on the date of mailing, as determined by the certificate of mailing, provided the certificate of mailing indicates that the petition to review was mailed to the appropriate administrative law judge.”

Here, the ALJ’s order required the petition to review to be filed at the “Division of Administrative Hearings, 1120 Lincoln St., Suite 1400, Denver, CO 80203.” The order also contains a certificate of mailing showing that the order was mailed to the parties on October 2, 2002. Accordingly, the claimant’s petition for review had to be filed no later than October 22, 2002.

The claimant’s petition to review contains a certificate of mailing showing that it was mailed October 22, 2002, to the “Division of Administrative Hearings, 1120 Lincoln St., Suite 1405, Denver, CO 80203 (emphasis added).” Further, a date stamp shows that the claimant’s petition was received by the Division of Administrative Hearings on October 23, 2002. Thus, regardless of the facts that the petition was not specifically addressed to the ALJ, and the claimant sent the petition to Suite 1405 rather than Suite 1400, the record demonstrates that the petition was promptly filed at the location indicated in the ALJ’s order. Further, we note that the ALJ’s order did not instruct the parties that the petition must specifically be addressed to the ALJ. See Converse v. Zinke, 635 P.2d 882 (Colo.App. 1981). Under these circumstances, we conclude the claimant substantially complied with the requirements of § 8-43-301(2), and that the petition was timely filed by mail. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) [cover letter showing petition to review timely mailed to the ALJ constituted “substantial compliance” with § 8-43-301(2)].

Concerning the motion for recusal, the law is clear. C.R.C.P. 97 provides that a judge may recuse himself, 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).

The rules of civil procedure apply to workers’ compensation proceedings if they are not inconsistent with the statutory procedures established by the Workers’ Compensation Act (Act). Kroupa v. Industrial Claim Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192(Colo.App. 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. Menor v. Jefferson County School, W.C. No. 4-006-520 (August 5, 2002); Miller v. Ken Caryl Glass,
W.C. No. 4-113-859 (February 8, 1993). We adhere to our prior conclusions.

The critical test in ruling on a motion for recusal is whether the supporting affidavits establish facts from which it may reasonably be inferred that the judge is prejudiced or biased. In deciding the motion, the judge must accept the affidavits as true. However, mere opinions or conclusions unsupported by facts are not sufficient. M Life Insurance Co., v. Sapers Wallack Ins. Agency Inc., 40 P.3d 6 (Colo.App. 2001). Further, adverse legal rulings, standing alone, are insufficient to establish bias. People v Thoro Products Co., 45 P.3d 737 (Colo.App. 2001); In re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188
(1977).

Rulings on motions for recusal are reviewable under an abuse of discretion standard. M Life Insurance Co. v. Sapers Wallack Insurance Agency, Inc., supra. Accordingly, we may not interfere with the ALJ’s order unless it exceeds the bounds of reason, such as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).

Here, the claimant’s oral motion for recusal was not verified as required by C.R.C.P. 97. Consequently, we cannot say the ALJ abused his discretion in denying the claimant’s oral motion. Austin v. City and County of Denver, supra.

Moreover, we conclude the claimant’s written motion was properly denied. The supporting affidavit alleged that in 42 percent of the ALJ’s decisions which were appealed by claimants and affirmed on appeal, the ALJ discredited the claimant’s testimony. The claimant’s further alleged that his personal experience with the ALJ indicated the ALJ “went out of his way to find for Respondents.” Finally, the affidavit contained disparaging remarks allegedly made by other lawyers about the ALJ’s objectivity.

We agree with the ALJ’s analysis of the affidavit and adopt his reasoning as our own. Further, we agree with the ALJ that, without supporting facts, the allegations of claimant’s counsel and the negative opinions allegedly expressed by other attorneys about the ALJ are not legally sufficient to support an inference that the ALJ is prejudiced against Hispanic claimants. The ALJ correctly determined that the appellate statistics cited in the affidavit actually indicate that 17.375 percent of the ALJ’s orders which were appealed by claimants involved factual disputes where the ALJ rejected the claimant’s testimony. It is not reasonable to infer from this percentage that the ALJ is biased against claimants. See M Life Insurance Co. v. Sapers Wallack Insurance Agency, Inc., supra. Consequently, the ALJ did not abuse his discretion in failing to grant the motion for recusal.

Finally, the claimant does not otherwise dispute the ALJ’s finding that he failed to sustain his burden to overcome the DIME. Moreover, the finding supports the denial of medical impairment benefits. Section 8-42-107(8)(c), C.R.S. 2002; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Kathy E. Dean
____________________________________ Dona Halsey

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. 2002. 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, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed April 17, 2003 to the following parties:

Lina Abrego, 513 Cove Ln., Ft. Morgan, CO 80701

Shane Cornell, Excel Corporation, 1505 E. Burlington, C. S. 4100, Ft. Morgan, CO 80701

Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Ft. Collins, CO 80525

Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)

Kathleen M. Fairbanks, Esq. and Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)

BY: A. Hurtado