W.C. No. 4-306-223Industrial Claim Appeals Office.
December 3, 1999
FINAL ORDER
Attorney Richard Blundell (Blundell) seeks review of an order of Administrative Law Judge Rumler (ALJ) insofar as it determined the claimant does not currently owe any attorney fees. We affirm.
The claimant sustained a compensable injury in August 1996 to her shoulder and cervical area. On May 15, 1997, the claimant’s treating physician indicated the claimant had reached maximum medical improvement (MMI). On September 18, 1997, the same physician issued a medical impairment rating of 21 percent of the whole person. Based on this rating the respondents filed a Final Admission of Liability for $34,694.05 in permanent partial disability benefits, and claimed an “overpayment” of temporary total disability benefits in the amount of $8,522.73. The “overpayment” represented the amount of temporary total disability benefits paid between the date of MMI and the October 14, 1997, final admission of liability.
Meanwhile, in late May or early June 1997, the claimant retained Blundell to represent her in the workers’ compensation case. Claimant and Blundell entered into a Contingent Fee Agreement which provided the claimant would pay Blundell 20 percent “of any and all payments recovered on any contested matters, except as otherwise stated herein.” The agreement did not specifically define “contested matters,” but the agreement does state the claimant “believes that this matter probably involves a claim for permanent disability, but that the extent thereof is contested or uncertain.”
Blundell timely contested the October 14 final admission and requested a Division-sponsored psychiatric independent medical examination (IME). The request states that “there is a substantial likelihood that permanent psychiatric impairment exists” if the claimant “is in fact at maximum medical improvement.” The Division-sponsored IME was scheduled on March 23, 1998. The IME physician opined the claimant was not at MMI from a psychiatric perspective and was in need of a “comprehensive consultation with perhaps three follow-ups with a psychiatrist.” Nevertheless, the IME physician assessed an 8 percent whole person impairment rating due to psychiatric factors. Shortly after the IME examination, the claimant sent a letter to Blundell formally discharging him as her attorney.
Upon receipt of the IME report the respondents reinstated the claimant’s temporary total disability benefits retroactive to May 15, 1997. Blundell then requested a hearing on the issue of attorney fees. Blundell argued that he should receive 20 percent of the “28 percent impairment rating,” (21% rating combined with 8% psychiatric rating) and 20 percent of the claimant’s reinstated temporary disability benefits.
The ALJ rejected Blundell’s argument and concluded that the claimant does not “as yet” owe any attorney fees. The ALJ reasoned that by contesting the respondents’ final admission of liability and requesting the IME Blundell succeeded in reinstating the claimant’s temporary disability benefits. The ALJ found that between May 15, 1997, and August 6, 1998, the claimant received $24,475.73 in temporary disability benefits. However, the ALJ also found that reinstatement of the claimant’s temporary disability benefits nullified the determination of MMI, and hence, the claimant’s entitlement to the $34,694.05 in admitted permanent partial disability benefits. Consequently, the ALJ concluded that Blundell’s efforts had not yet “won any money” in a “contested matter” which the claimant would not have received under the final admission of liability.
I.
Blundell filed a timely petition to review alleging that the ALJ erred in determining that “the period covered by the reinstatement of TTD benefits following the DOWC IME was not one involving the receipt of benefits which had previously been denied or contested.” However, Blundell failed to file a brief in support of the petition to review. Therefore, the effectiveness of our review is limited, and we perceive no error in the order.
Section 8-43-403(1), C.R.S. 1999, permits the ALJ to “determine what portion of the benefits awarded were contested.” However, neither the statute nor the Contingent Fee Agreement specifically defines a “contested” benefit. Under these circumstances, we conclude that the question of whether a particular benefit was “contested” is a question of fact for determination by the ALJ considering the circumstances of the particular case.
Because we conclude that the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. Under this standard of review we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant testified that when Blundell explained the Contingent Fee Agreement he told her he would take 20 percent of “what [she] would not have gotten without his help.” (Tr. pp. 94-95). Thus, the record contains evidence that both the claimant and Blundell interpreted the “contested matters” language of the Contingent Fee Agreement to mean that Blundell was entitled to a fee based on the extent to which he increased net benefits beyond that which the respondents were willing to pay. This interpretation of the agreement is not unreasonable considering that the Workers’ Compensation Act combines temporary and permanent partial disability benefits for purposes of capping the claimant’s overall recovery. Section 8-42-107.5, C.R.S. 1999.
It follows that the ALJ’s order is supported by substantial evidence in the record. The ALJ determined that, by the time of the hearing, Blundell’s representation had not resulted in any net increase in benefits beyond that which the respondents admitted in the final admission of liability. In fact, the claimant’s entitlement to the admitted benefits was essentially established at the time she was placed at MMI by the treating physician, prior to Blundell’s entry of appearance. Obviously, the ALJ did not rule out the possibility that Blundell may become entitled to a fee in the future. We recognize that the record contains evidence, including expert legal testimony, that the agreement should be interpreted in a manner which would support an award of attorney fees under the circumstances of this case. However, the ALJ implicitly resolved conflicts in the evidence in favor of the claimant, and we may not substitute our judgment for hers concerning the credibility of the witnesses or the weight of the evidence.
II.
Blundell’s petition to review also asserts the ALJ erred in denying his motion for recusal, which was filed after the ALJ entered the summary order. The motion for recusal alleged the ALJ’s summary order was the “product of bias or predisposition” in light of statements allegedly made by the ALJ in another case. The motion further alleges the ALJ’s summary order contains a caption listing Blundell as the “claimant,” and also states that Blundell was “suing” for attorney fees. The ALJ denied the motion for recusal by order dated February 15, 1999. We find no error.
ALJ’s are presumed to be competent and unbiased until the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Generally, recusal requires a showing that the ALJ had a personal, financial, or official stake in the decision which would evidence a conflict of interest on her part Neoplan USA Corp. v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989). Adverse rulings in prior cases generally do not, standing alone, establish sufficient grounds for recusal In re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188
(1977).
In the motion for recusal Blundell asserted that in another case the ALJ refused to grant a continuance because she doubted Blundell’s failure to appear for a scheduled hearing was the result of illness, as Blundell claimed. However, Blundell was aware of the ALJ’s alleged remarks in the other case prior to the hearing in this case, and well before the ALJ entered the summary order. Under these circumstances, Blundell waived the right to raise this issue as a grounds for recusal, because he did not raise it in a timely fashion. Cf. Vetten v. Prestressed Concrete, W.C. No. 2-862-071 (August 17, 1998), aff’d on other issues, Vetten v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1751, August 5, 1999).
In any event, we do not perceive the ALJ’s remarks in the other case as exhibiting a personal, financial, or official stake in the outcome of this case. We have reviewed the record and see no indication that the ALJ was in any way influenced by events in the other case, or exhibited a general bias against Blundell.
Neither do we perceive the caption of the summary order, or use of the term “suing,” as demonstrating any bias against Blundell. Designation of Blundell as the “claimant” and use of the word “suing” may have been imprecise, but they certainly do not indicate the type of bias or predisposition which would warrant a conclusion that the ALJ should have recused herself.
IT IS THERFORE ORDERED that the ALJ’s order dated February 16, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 3, 1999 to the following parties:
Karol Estes, #7 Blackstone Ave., Sioux City, IA 51104-4001
Richard K. Blundell, Esq., 1024 8th Street, Greeley, CO 80631
BY: L. Epperson