W.C. No. 4-813-965.Industrial Claim Appeals Office.
January 12, 2011.
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 28, 2010 that denied the claimant’s request to increase his admitted average weekly wage (AWW). We affirm.
The claimant suffered an admitted industrial injury on December 29, 2009. The claimant worked for the employer cleaning cars initially on a part-time basis, but on December 27, 2009 transited to a full-time capacity, two days before his accident. The respondents admitted the claimant’s AWW based on upon his full-time wage. Tr. at 5. The claimant was hired at Carl’s Junior and argued that he was entitled to an increase in his admitted AWW based on his concurrent employment at Carl’s Junior. The claimant testified that he intended to work full-time for both the employer and Carl’s Junior.
The ALJ found the claimant’s testimony to be unpersuasive and inconsistent with the employment records from Carl’s Junior. The ALJ found that there were significant discrepancies regarding the claimant’s employment with Carl’s Junior. The ALJ determined that the claimant’s employment, schedule and potential earnings with Carl’s Junior were merely speculative. The ALJ found that the claimant had failed to demonstrate that he was entitled to an increase in his admitted AWW based on his concurrent employment with Carl’s Junior. The ALJ concluded that the admitted AWW, based on the claimant’s wages at the employer, constituted a fair approximation of his wage loss and diminished earning capacity as a result of his industrial injury. The claimant brings this appeal requesting that the order be set aside and the matter remanded.
When a worker is concurrently employed, the ALJ may, in order to achieve fairness, include all such wages in the computation of AWW Broadmoor Hotel and Continental Ins. Co. v. Industrial Claim Appeals Office 939 P.2d 460 (Colo. App. 1996); St. Mary’s Church Mission v. Industrial Commission, 735 P.2d 902 (Colo. App. 1986) (discretionary authority granted to the division of labor to utilize an alternative method of computing an AWW if concurrent employments exist); Coleman v. National Produce Service, W. C. No. 4-601-676 (July 12, 2005) (we do not agree with the ALJ’s legal conclusion that § 8-40-201(19)(a) mandates wages from concurrent employment always be included in the AWW); Miranda v. ISS Prudential Services, Inc. and/or Denver Public Schools, W.C. 3-833-976, 3-908-234 4-105-113 (February 28, 1994) (where the claimant holds concurrent employments at the time of the injury, the ALJ has discretion to calculate the AWW so as to include the total income from the multiple employments); Yankee v. Flagship International W.C. 3-862-644 (December 07, 1988) (not an abuse of discretion to decline to combine wages from his other work in calculating the AWW).
The objective when calculating the AWW is to arrive at a “fair approximation of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo. App. 1993). An abuse of discretion exists when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 869 (Colo. App. 2001). However, we may not interfere with the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), CR.S. This standard of review requires us to uphold the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
The claimant first contends that the ALJ failed to adequately resolve conflicts in the evidence. The claimant requests that the matter be remanded for the ALJ to resolve conflicts in the evidence relating to written records from Carl’s Junior and the testimony of the claimant and a manager from Carl’s Junior.
The ALJ made the following relevant findings of fact. The claimant did not work any more than a total of approximately 3.75 hours with Carl’s Junior before his termination. The claimant testified that his first day of work with Carl’s Junior was December 29, 2009 and he worked a total of about three hours. The claimant’s full-time fixed schedule at the employer required him to work from 2:30 p.m. to 11:00 p.m. on Sunday, Monday, Tuesday, Friday and Saturday. He did not work for the employer on Wednesday and Thursday. The claimant was scheduled to work for Carl’s Junior from 7:00 a.m. to 2:00 p.m. on Monday and Tuesday. He was also scheduled to work from
8:00 a.m. to 4:00 p.m. on Wednesday. Finally, he was scheduled to work from 10:00 a.m. to 4:00 p.m. on Thursday, Friday and Saturday. The drive from Carl’s Junior to the employer’s facility lasted approximately 35-45 minutes. There was overlap between the claimant’s work schedules for employer and Carl’s Junior.
The ALJ made the following additional findings. The claimant’s work schedules with the employer and Carl’s Junior were incompatible with two full-time jobs. The claimant’s full-time schedule with the employer required him to work from 2:30 p.m. to 11:00 p.m. on Sunday, Monday Tuesday, Friday and Saturday. The schedule with Carl’s Junior suggests that on Friday and Saturday he would have to leave at least 2.5 — 3 hours before his shift ended in order to arrive on time for the start of his scheduled shift with the employer. If the claimant completed his shift for Carl’s Junior, he would arrive at the employer’s facility at least 2 — 2.5 hours late for his shift. Moreover, based on a review of the Carl’s Junior schedules, if the claimant left early from his scheduled shift, there were times when no cook was available at Carl’s Junior.
On appeal, the claimant does not challenge that there was an overlap of work schedules. Rather the claimant argues that he presented testimony from himself and a manager at Carl’s Junior that an adjustment of the claimant’s schedule could be made and he could leave the restaurant early when necessary in order to arrive on time at his job with the employer. Although the manager testified that Carl’s Junior was flexible in terms of the claimant’s work hours and he could leave the restaurant early when necessary, her testimony was found by the ALJ to be not persuasive in the context of the other evidence.
The ALJ noted that the employment records from Carl’s Junior reveal that the claimant was terminated effective December 28, 2009 because he had an accident with the employer. The claimant argues that the claimant’s accident actually occurred on December 29, 2009. The ALJ also noted that the records from Carl’s Junior reflect that the claimant’s last day of work was December 26, 2009 which is inconsistent with the claimant’s testimony and the December 29, 2009 date of his industrial injury.
The claimant argues that the claimant’s testimony and the testimony from the manager at Carl’s Junior were consistent and that the written records from Carl’s Junior were simply confused. We acknowledge that the evidence on the issue of when the claimant was terminated could certainly be viewed in the way suggested by the claimant. However, we cannot say that the ALJ was compelled to accept the testimony of the claimant or of the witness the claimant presented. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Further even if we accepted the claimant’s contention that the written records from Carl’s Junior were simply wrong on the issue of when he was terminated and when the accident occurred at the employer this does not negate the fact that the records demonstrate inconsistencies between the claimant’s alleged loss of full time wages at Carl’s Junior and the obvious scheduling problems with full time work at the employer. Here, the claimant at the hearing had argued he was entitled to have his AWW calculated on $320 per week admitted for his full-time wages at the employer and an additional 40 hours per week employment at $8.50 he alleged was his AWW at Carl’s Junior. Tr. at 5-6. As noted above the ALJ found, and the claimant has not contested, that there was overlap between the claimant’s work schedules for employer and Carl’s Junior. This supports the ALJ’s determination that the claimed potential full-time wages from earnings at Carl’s Junior were speculative.
As noted by the ALJ there is no “ipso facto rule” for concurrent employments. Jefferson County Public Schools v. Dragoo 765 P.2d 636 (Colo. App. 1988). In Jefferson County Public Schools v. Dragoo, the court acknowledged that under certain circumstances it may be appropriate to disallow compensation for multiple wage losses. Here, unlike in Jefferson County Public Schools v. Dragoo, the ALJ gave reasons justifying his failure to include wages from all of the claimant’s employments. The claimant had the burden to prove his entitlement to a higher AWW than admitted for. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). We cannot say that the ALJ was compelled to accept the evidence offered by the claimant and therefore, we can ascertain no justification for interfering with that determination.
The claimant next contends that the findings of fact made by the ALJ are not supported by the evidence or the findings are not sufficient to support appellate review. The claimant again argues that the records from Carl’s Junior cannot be considered probative or competent. The claimant further contends that his testimony and the testimony from the manager from Carl’s Junior regarding flexibility of schedule and that supervisory personnel could cover the claimant’s cooking duties was not countered by the respondents. However, the ALJ is under no obligation to credit testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993). In determining the facts, the ALJ is not required to accept testimony which is unrefuted or uncontroverted. Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34 (1970); Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983). Moreover, in our opinion the written records from Carl’s Junior can be viewed as countering the claimant’s evidence.
The claimant next contends that the order is not supported by the findings of fact. The claimant argues that regardless of any issues concerning schedule overlap on other days the claimant could clearly have worked two days for as many hours as possible. Therefore the claimant would have had at least 14 hours of work at Carl’s Junior in addition to his fixed schedule at the employer. Consequently, the claimant contends it was error for the ALJ to deny and dismiss the claim for an increase in AWW based upon concurrent employment.
However, the undisputed fact is that the claimant had only earned a total of approximately 3.75 hours with Carl’s Junior before his accident. Of course it may be that the claimant would have worked for Carl’s Junior and earned wages but for his termination and the ALJ was free to exercise his discretion and utilize an estimate of future earnings in determining a fair approximation of the claimant’s wage loss. However, the ALJ felt the evidence presented by the claimant on this issue was speculative. In our view, this is not a case where the claimant conclusively demonstrated a substantial amount of concurrent employment which would compel a finding that a fair approximation of the claimant’s wage loss and diminished earning capacity would include earnings made at a concurrent employment. In addition, we note that the admitted AWW was based on the claimant’s full time wage even though he had started working in a full-time capacity for the employer only two days before his accident. Therefore, we cannot say that the ALJ abused his broad discretion in determining AWW. We do not view the ALJ’s determination as being beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 28, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
MIGUEL GUERRERO BARRIO, DENVER, CO, (Claimant).
GCA SERVICES GROUP, INC., AURORA, CO, (Employer).
TRAVELERS INDEMNITY COMPANY, Attn: ANNA K. CURRY, DENVER, CO, (Insurer).
CASTANEDA LAW OFFICE, Attn: J.J. FRASER, ESQ./JANIE C. CASTANEDA, ESQ., DENVER, CO, (For Claimant).
RAY LEGO AND ASSOCIATES, Attn: JONATHAN S. ROBBINS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).