W.C. Nos. 4-162-568, 4-235-366Industrial Claim Appeals Office.
June 3, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied medical benefits. We affirm.
This matter was previously before us. On May 30, 1991, we set aside the ALJ’s prior order which denied the claim for medical benefits in the form of psychotherapy from 1994 through 1996 by Kathleen Waidlich M.A. (Waidlich). With regard to Waidlich’s treatment after May 1995, we concluded that the ALJ erred in finding that Waidlich was not authorized to treat the claimant, and remanded the matter for a determination of whether Waidlich’s treatment was reasonable and necessary to relieve the effects of the industrial injury.
On remand, the claimant filed a motion requesting an additional hearing to present evidence on the reasonableness of Waidlich’s treatment. The ALJ denied the motion and determined that the issue would be resolved based upon the evidence presented at the hearings on August 20, 1997 and October 8, 1997.
On November 11, 1997, the ALJ issued an order which incorporated the findings of fact in her prior order. The ALJ also found that Waidlich’s treatment between June 1995 and August 20, 1996 was not reasonable and necessary to cure and relieve the effects of the claimant’s industrial injury. Therefore, the ALJ concluded that the respondents are not liable for Waidlich’s treatment during this period.
I.
On review, the claimant first contends that the ALJ abused her discretion in failing to grant the motion for an additional hearing. The claimant contends that the respondents did not contest the “reasonableness” of Waidlich’s treatment at the prior hearing, and therefore, the claimant contends that she had no notice the “reasonableness” of Waidlich’s treatment was a disputed issue until our Order of Remand. Consequently, the claimant contends that due process of law required the ALJ to schedule an additional hearing which affords her an opportunity to present evidence that Waidlich’s treatment was reasonable. We disagree.
The standard on review of an alleged abuse of discretion is whether the ALJ’s ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). In applying this standard, we may consider whether the ALJ’s order is supported by substantial evidence in the record Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Contrary to the claimant’s assertions, the August 1996 hearing transcript reveals that the respondents refused to stipulate to the reasonableness of Waidlich’s treatment. As a result, claimant’s counsel stated that he had “no choice” but to offer evidence on the issue. (Tr. p. 10). The claimant’s attorney then elicited Waidlich’s testimony that the treatment she provided was reasonable and necessary to cure or relieve the effects of the industrial injury. (Tr. pp. 10-12, 15). Furthermore, there is no indication that Waidlich’s testimony solely pertained to the reasonableness of the treatment provided prior to June 1995.
Under these circumstances, we conclude that the “reasonableness” of Waidlich’s treatment after June 1995 was litigated at the prior hearing, and the claimant’s due process rights were not implicated. Therefore, the ALJ did not abuse her discretion in refusing to grant an additional hearing.
II.
Next, the claimant contends that there is not substantial evidence in the record to support the findings of fact because there is no evidence that Waidlich’s treatment was unreasonable. We reject this argument.
The claimant has the burden to prove her entitlement to medical benefits. See City of Boulder v. Streeb, 706 P.2d 786
(Colo. 1985). Furthermore, the respondents are only liable for treatment which is reasonable and necessary to cure and relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Accordingly, it was the claimant’s burden to prove that Waidlich’s treatment was reasonable and necessary, not the respondents’ burden to prove that the treatment was unreasonable.
The question of whether the claimant sustained her burden of proof is a question of fact for resolution by the ALJ. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995). Therefore, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-308
C.R.S. 1997. In applying the substantial evidence standard, we are obligated to defer to the ALJ’s credibility determinations, her assessment of the sufficiency and probative value of the evidence, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ rejected Waidlich’s testimony concerning the reasonableness of her treatment because Waidlich is not a psychologist or a physician, and did not submit any treatment record for the therapy provided prior to January 22, 1996. In contrast, the ALJ was persuaded by the opinions of Dr. Kooken and Dr. Roberts. Dr. Kooken recommended that the claimant be evaluated by a psychiatrist to determine if antidepressant medication would moderate her depression. That evaluation was completed by Dr. Roberts. In his report dated August 30, 1995, Dr. Roberts opined that “I do not think there is anything I can offer” the claimant because she would react negatively to any medication. Thus, Dr. Roberts declined to recommend further treatment. Based upon this evidence the ALJ could, and reasonably did infer that the evidence was insufficient to sustain the claimant’s burden to prove that Waidlich’s treatment was reasonable and necessary.
III.
Lastly, the claimant contends that the ALJ is biased against claimant’s attorney and “psychological issues.” Therefore, the claimant argues that the ALJ erred in failing to recuse herself from the claim.
Initially, we note that the claimant did not move to have the ALJ recuse herself during the course of the hearing. Consequently, the matter is not properly before us on appeal. See Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995); Notz v. Notz Masonry, Inc., W.C. No. 4-158-043 (May 28, 1996).
Even if we were to consider the issue, the claimant’s argument would be rejected. The ALJ is entitled to a presumption of integrity, honest, and impartiality. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). An adjudicatory hearing will be deemed to have been conducted impartially in the absence of a personal, financial, or official stake in the decision evidencing a conflict of interest on the part of the ALJ Mountain States Telephone Telegraph Co. v. Public Utilities Commission, 763 P.2d 1020 (Colo. 1988).
Assuming arguendo, the truth of the claimant’s factual allegations, the allegations do not establish that the ALJ has a “personal, financial, or official stake” in the outcome of the claimant’s case. Furthermore, the fact that the ALJ ruled against the claimant’s counsel on another case involving psychological treatment, is insufficient to overcome the presumption of impartiality. See In re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977) (adverse rulings alone are insufficient to show bias). Therefore, we are not persuaded that the claimant’s allegations compelled the ALJ to recuse herself from the claim See Senn v. King Soopers, Inc., W.C. No. 4-220-587 (May 28, 1996), aff’d, Senn v. Industrial Claim Appeals Office (Colo.App. No. 96CA1083, December 27, 1996) (not selected for publication).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 21, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Kathy E. Dean __________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 3, 1998 to the following parties:
Linda L. Chapman, 3315 Galleria Terrace, Colorado Springs, CO 80907
Spectranetics Corporation, 96 Talamine Ct., Colorado Springs, CO 80907-5160
Nancy Rostad, Transamerica Workers’ Compensation, P.O. Box 17005, Denver, CO 80217
Carol A. Finley, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For the Claimant)
BY: _______________________