W.C. No. 4-220-587Industrial Claim Appeals Office.
May 28, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied her claim for permanent total disability benefits. We affirm.
The ALJ’s findings may be summarized as follows. The claimant developed carpal tunnel syndrome (CTS) due to her work as a baker for the respondent. After the injury, the claimant returned to part-time work with the respondent until May 1995. At that time the claimant underwent a Functional Capacity Evaluation (FCE), which indicated that the claimant is limited to sedentary work with restrictions on the use of her upper extremities. Thereafter, the employer provided the claimant work within these restrictions in its Customer Service Department. The claimant continued to work in the Customer Service Department until she retired for reasons unrelated to her industrial disability.
Based upon these findings the ALJ determined that the claimant is physically unable to return to work as a baker. However, crediting the testimony of vocational expert William Hartwick, the ALJ found that the claimant is capable of earning wages in unskilled, entry level work in the fields of customer service, security guard, doorkeeper, and scheduling clerk. Therefore, the ALJ determined that the claimant failed to sustain her burden to prove that she is permanently and totally disabled as defined by § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.).
I.
The claimant contends that the evidence compels an award of permanent total disability benefits. More specifically, the claimant contests the ALJ’s finding that the claimant is capable of performing work within the physical restrictions set forth in the FCE. The claimant also contests the ALJ’s finding that the claimant is able to secure employment in unskilled, entry level jobs. We reject the claimant’s argument.
Under § 8-40-201(16.5), a claimant is not permanently and totally disabled if she is able “to earn any wages in the same or other employment.” McKinney v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 93CE0021, February 9, 1995). Because, the resolution of this issue is factual in nature, we must uphold the ALJ’s determination that the claimant is capable of earning wages if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp) Christie v. Coors Transportation Co., ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Furthermore, where the evidence is subject to conflicting inferences it is the ALJ’s sole prerogative to determine the inference to be drawn Christie v. Coors Transportation Co., supra.
The ALJ’s finding that the claimant is capable of performing work within the restrictions set forth in the FCE is supported by the opinion of the claimant’s treating physician, Dr. Conyers. See Conyers report June 14, 1995. Furthermore, in reaching his determination, the ALJ expressly recognized the claimant’s testimony that the FCE did not accurately reflect her physical capacity. However, the ALJ was more persuaded by the objectivity of the FCE, and therefore, resolved the conflict against the claimant. (Discussions and Conclusions of Law).
Moreover, the substantial evidence test requires that we defer to the ALJ’s credibility determinations, as well as his resolution of conflicts in the evidence. Christie v. Coors Transportation Co., supra. Consequently, we may not interfere with the ALJ’s determination that the claimant is physically capable of performing work within the restrictions set forth in the FCE.
Next, there is no merit to the claimant’s contention that the ALJ ignored the evidence concerning the mental component of her injury. To the contrary, the ALJ expressly recognized Dr. Yost’s opinion that the claimant suffers from a somataform pain disorder and that the claimant’s ability to perform activities of daily living is impaired. However, the ALJ did not find Dr. Yost’s opinion of the claimant’s psychiatric impairment persuasive because the ALJ found that Dr. Yost did not address the cause of the claimant’s somataform pain disorder or differentiate between the psychiatric and physical causes for the disruption of the claimant’s daily living activities. Notwithstanding the claimant’s argument, the ALJ’s finding is a plausible interpretation of Dr. Yost’s June 22, 1995 report. Therefore, we cannot say that the ALJ erred in failing to credit Dr. Yost’s opinions.
In addition, Mr. Hartwick’s testimony constitutes substantial evidence to support the ALJ’s finding that the claimant is capable of earning wages in unskilled employment. (Tr. pp. 36,-37, 39). Accordingly, the existence of evidence in the record which, if credited, might support a contrary determination does not afford us a basis to set aside the ALJ’s finding. Cary v. Chevron U.S.A., Inc.867 P.2d 117 (Colo.App. 1993).
II.
We also reject the claimant’s contention that the ALJ erred in allowing the respondent to present Mr. Hartwick’s testimony. The record indicates that the claimant objected to the presentation of Mr. Hartwick’s testimony because Mr. Hartwick did not prepare a written vocational report. However, there is no rule which requires a properly endorsed expert witness to submit a report prior to being allowed to testify. See Simmonds v. Action RV, Inc., W.C. No. 4-142-922, April 16, 1996. Therefore, the fact that the Mr. Hartwick did not submit a written report prior to his testimony did not prohibit the ALJ from allowing his testimony.
In any case, the transcript indicates that the claimant introduced a written report by Mr. Hartwick dated November 20, 1995. (Claimant’s Exhibits A-E). Therefore, the record does not support the claimant’s contention that he was not provided with a copy of Mr. Hartwick’s report.
III.
Lastly, the claimant contends that the ALJ erred in failing to recuse himself from the case. We perceive no error.
The claimant recognizes that the ALJ is entitled to a presumption of integrity, honesty, and impartiality. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). The presumption of impartiality is overcome only if it is proven that the ALJ has a personal, financial or official stake in the decision. Neoplan U.S.A. Corp. v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989).
Here, claimant’s attorney of record, Jack Kintzele (Kintzele), filed a Verified Motion for Recusal which alleged that the ALJ is “predisposed against all of Jack Kintzele’s clients and will deny each Permanent Total disability benefits, no matter what the facts.” In support Kintzele relied upon the fact that the ALJ denied his motion to exclude the testimony of Mr. Hartwick. Kintzele also asserted that he represented 3 out of the 8, or 37 percent of the claimants who had been denied permanent total disability benefits by the ALJ since January 1, 1994. Further, Kintzele alleged that “perhaps” the ALJ was offended by some “strongly-worded appeals” he filed concerning another ALJ.
Alternatively, the claimant argues that the ALJ is biased against Kintzele. The claimant’s argument is premised on comments made by the ALJ in denying the motion for recusal, including the ALJ’s comment to Kintzele that “maybe you ought to look at yourself” if you have been counsel to 37 percent of the claimant’s who were denied permanent total disability benefits.
Assuming, arguendo, the truth of the claimant’s factual allegations, the allegations do establish that the ALJ has a personal, financial or official stake in the outcome of the claimant’s case. Furthermore, the mere fact that the ALJ ruled against claimant on the motion to exclude Mr. Hartwick’s testimony and ruled against the claimant’s counsel in other cases, falls far short of the level of proof required to justify recusal See In re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977). In fact, as stated by the Panel in rejecting a similar argument by Kintzele, if this were the standard, ALJs would be required to recuse themselves in most workers’ compensation cases because they would have ruled for or against the attorneys in numerous cases. Notz v. Notz Masonry, Inc.,
W.C. No. 5-158-043, May 28, 1996. Therefore, we are not persuaded that the claimant’s allegations compelled the ALJ to recuse himself from this claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 29, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 28, 1996 to the following parties:
Carol J. Senn, 300 S. Lewis St., Lakewood, CO 80226
King Soopers, Inc., Attn: Marsha Haugum, P.O. Box 5567, T.A., Denver, CO 80217
Dillon Companies, Inc., 1927 S. Wadsworth Blvd., Denver, CO 80227-2434
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
Thomas O. McBride, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For the Respondent)
BY: _______________________