W.C. No. 4-465-758Industrial Claim Appeals Office.
April 8, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ Jones) which dismissed the claim for benefits. We set the order aside and remand with directions to consider the claimant’s request that ALJ Jones recuse herself, and for specific findings of fact and conclusions of law concerning the merits of the case.
No hearing was held in the case, and the file contains few original documents and pleadings. The following statement of facts is largely gleaned from representations contained in the motion and response to the motion described below.
The claimant sustained a compensable injury in June 2000, and the treating physician placed the claimant at maximum medical improvement (MMI), with a 6 percent whole person rating and a 2 percent scheduled disability on November 16, 2000. The claimant disputed that treating physician’s findings of MMI and the degree of impairment. The parties then “agreed” a Division-sponsored independent medical examination (DIME) would be performed by a specific physician. However, before the DIME occurred, the claimant’s counsel learned the agreed-upon physician was a member of the respondent-insurer’s “Selectnet” group of preferred physicians. Claimant’s counsel then filed a motion to strike the DIME on grounds the agreed-upon physician was unfairly biased against the claimant.
On April 11, 2001, Prehearing Administrative Law Judge Fitzgerald (PALJ Fitzgerald) denied the motion to strike and ordered the claimant to reschedule the DIME. However, the claimant filed an application for hearing listing the issues as “factual determination regarding the juris [sic] and propriety of PALJ and bias as to the Order dated April 11, 2001.”
On or about April 26, 2001, the claimant filed an application for hearing, apparently seeking a ruling by an ALJ concerning whether or not the claimant was required to attend the DIME. The respondents then filed a motion to compel the claimant to attend the DIME, which ALJ Felter granted on or about May 25, 2001. However, the claimant asserts in his brief that on or about May 31, 2001, ALJ Felter also issued an order requiring that all issues concerning the proposed DIME examination be consolidated for a single hearing. (So far as we can ascertain this allegation did not surface until claimant’s brief on appeal). It is clear that, at some point, a hearing was scheduled for June 13, 2001. However, the hearing was continued by mutual agreement of the parties because the hearing involved “legal issues” and more time was needed “to develop” the issues.
The claimant did not comply with ALJ Felter’s May 25 order, but on July 24, 2001, filed an application for hearing concerning the “propriety of the Order issued by ALJ Felter.” On August 9, 2001, the respondents filed a motion to strike the application for hearing, which ALJ Jones granted on August 29, 2001. The claimant filed another application for hearing describing the issues as the “propriety and bias” of ALJ Jones’ order dated August 29.
On November 16, 2001, the respondents filed a Motion to Dismiss, alleging the claimant’s failure to comply with the orders of ALJ Fitzgerald and ALJ Felter constituted willful failure to comply with permitted discovery under § 8-43-207(1) (e), C.R.S. 2001, and willful failure to comply with an order of an Administrative Law Judge within the meaning of § 8-43-207(1)(p), C.R.S. 2001. The claimant replied that he was entitled to a hearing to establish the DIME physician was biased and unqualified within meaning of the Rule of Procedure XIV (L) (2) (h), 7 Code Colo. Reg. 1101-3. On November 28, 2001, ALJ Jones entered an order granting the respondents’ motion to dismiss. The November 28 order contains no specific findings of fact and conclusions of law.
I.
On review, the claimant first contends he was denied an opportunity to challenge ALJ Jones’ qualification on grounds that she was biased. In his brief, the claimant asserts ALJ Jones was biased because claimant’s counsel disputed the propriety of ALJ Jones’ conduct in a personnel board hearing. The claimant asserts that as a result of this incident ALJ Jones has consistently ruled against clients represented by her attorney. The respondents argue this issue was not timely raised, and in any event, ALJ Jones is entitled to a presumption of fairness and regularity. We conclude the matter must be remanded for further proceedings on this issue.
It is certainly true that ALJs are presumed to be competent and unbiased, and their actions are entitled to a presumption of integrity, honesty, and impartiality. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516
(Colo.App. 1995). However, due process requires that there be a neutral and detached decision maker, and the presumption of regularity is a rebuttable one. deKoevend v. Board of Education, 688 P.2d 219 (Colo. 1984). An ALJ should recuse herself if she has 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).
Here, the allegations in the claimant’s brief raise factual allegations which, if established as a matter of fact, might support a finding that ALJ Jones had a personal bias against claimant’s counsel sufficient to demonstrate a personal stake in the outcome of the case. Further, we agree with the claimant he has not had an adequate opportunity to present the issue and obtain a ruling concerning the issue of refusal. The record indicates the claimant first raised the issue of ALJ Jones’ alleged bias by filing an application for hearing after ALJ Jones entered the order of August 29. We recognize that applications for hearing constitute notice pleadings and do not usually contain detailed factual allegations sufficient to resolve an issue such as refusal. Moreover, no hearing was ever held on the claimant’s application, nor was any hearing held before ALJ Jones granted the respondents’ motion to dismiss. Indeed, the claimant would not necessarily have known that ALJ Jones would consider the motion to dismiss, especially in light of the fact that two other judges had also entered orders in the same case. Under these circumstances, we conclude the claimant has not been afforded an adequate opportunity to raise the issue of ALJ Jones’ alleged bias, nor can we interpret ALJ Jones’ ruling on the motion to dismiss as an implicit denial or rejection of the claimant’s allegations.
Vetten v. Prestressed Concrete, W.C. No. 2-862-071 (August 17, 1998), cited by the respondents, is inapposite. There, unlike the situation here, a hearing was held before the ALJ and the claimant did not raise the issue of refusal until after the hearing was concluded. As noted, no hearing was conducted in this case and the claimant could not fairly be expected to raise the detailed allegations in the application for hearing. Neither do we believe the claimant was required to file a motion for refusal concerning every ALJ who might potentially consider the respondents’ motion to dismiss.
We also note the alleged bias may not be treated as harmless in this case. Assuming the record would support a finding the claimant willfully violated discovery, or failed to comply with one or more orders, the sanction to be imposed for the violations is discretionary with the ALJ See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Thus, the decision of ALJ Jones to impose the most severe sanction, dismissal, would implicate the ALJ’s alleged bias.
Under these circumstances, the matter is remanded to ALJ Jones with directions to allow the claimant to present evidence in support of his assertion that ALJ Jones should recuse herself. ALJ Jones may then enter an order determining whether refusal is appropriate. See Rice v. Department of Corrections, 950 P.2d 676 (Colo.App. 1997) (decision to disqualify is within the discretion of the ALJ, whose ruling will not be disturbed absent an abuse of discretion). In reaching this result, we should not be understood as expressing any opinion concerning the factual or legal issues involved in the claimant’s request that ALJ Jones recuse herself. We merely hold the claimant should be afforded an opportunity to raise the issue and present pertinent evidence in support of his position.
II.
The claimant also argues ALJ Jones erred in dismissing the claim because it was “clearly undisputed” the claimant “had not acted in any willful or disobedient manner in response to any Order herein.” (Claimant’s Brief at p. 5). The respondents contend the ALJ had discretion to dismiss the claim under § 8-43-207(1)(e) or §8-43-207(1)(p).
It is true the ALJ has discretion, under certain circumstances, to dismiss a claim as a sanction for violation of subsections (1)(e) and (1)(p). See Reed v. Industrial Claim Appeals Office, 13 P.3d 810
(Colo.App. 2000); Sheid v. Hewlett Packard, supra. However, dismissal is the most extreme in a wide range of available sanctions. C.R.C.P. 37 (b).
Here, the ALJ entered no specific findings of fact and conclusions of law determining the precise legal basis for the imposition of sanctions, the factual basis for the sanctions, or the basis for selecting dismissal as the particular sanction to be imposed. Consequently, the findings are insufficient to support appellate review of the ALJ’s order. Section 8-43-301(8), C.R.S. 2001; Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969) (conclusory orders are insufficient to support appellate review because it is impossible for the court determine whether the award is proper). On remand, the ALJ which ultimately resolves the respondents’ motion to dismiss shall enter specific findings of fact and conclusions of law sufficient to support review in the event of an appeal.
IT IS THEREFORE ORDERED that the order of ALJ Jones dated November 28, 2001, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
Copies of this decision were mailed April 8, 2002 to the following parties:
Philip Nunez, 3019 Denver St., #3, Evans, CO 80620
Pete Duran Masonry Constructors, Inc., 302 N. 23rd Ave., Greeley, CO 80631
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Richard K. Blundell, Esq., 1020 9th St., Greeley, CO 80631 (For Claimant)
Douglas L. Stratton, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526
BY: A. Pendroy