W.C. No. 4-334-113Industrial Claim Appeals Office.
March 6, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), insofar as it denied the claim for temporary partial disability benefits commencing May 27, 1997. We affirm.
It is undisputed that the claimant sustained an injury on January 21, 1997, and was temporarily totally disabled until May 27, 1997. The ALJ found that the claimant returned to modified employment on May 27, performing “various odd jobs or work as a handyman.”
The claimant sought temporary partial disability benefits commencing May 27, but the ALJ determined that the claimant “failed to establish by a perponderance of the evidence his entitlement” to such benefits. The ALJ found that, although the claimant testified concerning his earnings commencing May 27, the testimony was insufficient because he “could not recall all the people for whom he worked and could not recall all compensation he received.” The ALJ also noted that the claimant offered “no independent evidence” to corroborate his testimony concerning earnings commencing May 27.
On appeal, the claimant contends that he established a prima facie case concerning his entitlement to temporary partial disability benefits. The claimant notes that he testified he earned between $1,000 and $1,500 between May 27 and July 21, 1997. Under these circumstances, the claimant asserts that the burden of proof shifted to the respondents to prove that he was not entitled to temporary partial disability benefits. We are not persuaded.
Under § 8-42-106(1), C.R.S. 1997, a temporarily partially disabled individual is entitled to benefits equal to “sixty-six and two-thirds percent of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of temporary partial disability.” The claimant had the burden of proof to establish his right to temporary partial disability benefits under this statute. § 8-43-201, C.R.S. 1997; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
It is the ALJ’s province to determine whether as a matter of fact the claimant carried his burden of proof. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Since this issue is factual in nature, it was the ALJ’s responsibility to determine the weight and credibility of the testimony, as well as the inferences to be drawn from the evidence. We may not substitute our judgment for his concerning these matters. Metro Moving Storage Co. v. Gussert, supra; § 8-43-301(8), C.R.S. 1997.
It is true, as the claimant argues, that the “burden of going forward” may shift to the respondents if the claimant presents sufficient evidence to persuade the ALJ that he established prima facie case of compensability. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). However, that fact does not alter the claimant’s underlying burden to persuade the ALJ in the first instance.
Here, we understand the ALJ to have found that the claimant’s testimony, standing alone, was not sufficient to persuade the ALJ that the claimant was entitled to temporary partial disability benefits. As the ALJ observed, the claimant’s testimony was ambiguous and self-contradictory concerning the amount of wages allegedly earned after May 27. At one point, the claimant testified that he earned “maybe in the ball park of $1,000 to $1,500 maybe.” (Tr. p. 29). Later the claimant stated that he earned “maybe $1,000, yeah, give or take a little.” (Tr. p. 39).
The ALJ was not obligated to find this testimony credible, even if it was unrebutted by testimony from other witnesses. Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993). And, contrary to the claimant’s argument, the ALJ was entitled to assess the weight of the testimony by considering whether it was corroborated by other evidence in the case. Therefore, the ALJ’s observation that claimant failed to introduce other evidence does not represent a misapplication of the burden of proof.
Further, there was no error in the ALJ’s finding that the claimant could not “recall” all of the persons for whom he worked after May 27. It is true that the claimant identified three specific people for whom he performed services. However, he could not recall the last name of one of these people. (Tr. p. 41).
Under the circumstances, the record supports the ALJ’s factual finding that the claimant failed to carry his burden of proof to establish the degree of wage loss, if any, subsequent to May 27. The mere fact that the evidence might have supported contrary findings and conclusions affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 6, 1998 to the following parties:
Ronald A. Biondo, Jr., P.O. Box 2516, Pagosa Springs, CO 81147
Troy Ross, P.O. Box 727, Pagosa Springs, CO 81147
Colorado Compensation Insurance Authority, Attn; Curt Kriksciun, Esq. (Interagency Mail)
Gail C. Harriss, Esq., 572 East Third Ave., Durango, CO 81301 (For the Claimant)
Kendra Oyen, Esq., 744 Horizon Court, Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: ________________________________