W.C. No. 4-675-717.Industrial Claim Appeals Office.
June 5, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated November 15, 2006, that denied temporary disability benefits. We affirm.
Several of the ALJ’s findings are summarized as follows. The claimant managed the employer’s floral department and sustained an admitted injury on December 27, 2005, when a box of plants fell on him. The authorized treating physician, Dr. Nystrom, restricted the claimant from lifting over two pounds, reaching overhead, or working over four hours a day. Dr. Nystrom released the claimant to full-time shifts on January 24, 2006, but kept in place the lifting and reaching restrictions. The claimant attempted to resume his full-time duties; however, he tendered his resignation on February 3, 2006, asserting that he resigned for family and personal health reasons. The claimant subsequently operated his own business, which he closed in June 2006. In July 2006 the claimant started working about 20 hours a week at a liquor store earning a lower hourly rate than he had at the employer’s.
The claimant maintained that he quit because he was required to perform job duties outside of his work restrictions. However, the ALJ was not persuaded and found that the claimant resigned his position with the employer due to personal reasons. In support of his findings, the ALJ referred to testimony by witnesses other than the claimant and, also, to the claimant’s responses to discovery requests. The ALJ therefore determined that the claimant was responsible for his loss of employment and denied temporary disability benefits.
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Sections 8-42-105(4), C.R.S. 2006, and 8-42-103(1)(g), C.R.S. 2006, state that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” I Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held that the term “responsible” reintroduced into the Workers’ Compensation Act the concept of “fault” applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of “fault” as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context “fault” requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985). That determination must be based upon an examination of the totality of circumstances. Id.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). We must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2006. 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). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The existence of evidence which, if credited, might support a determination to that reached by the ALJ does not afford us grounds to grant appellate relief Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380
P.2d. 28 (1963). Moreover, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant first asserts that the ALJ’s determination that he was responsible for his separation from employment and corresponding loss of any entitlement to temporary disability benefits is not supported by substantial evidence. He argues that the ALJ should have credited his testimony to the effect that he was unable to work eight-hour shifts and perform duties beyond his medical restrictions. The claimant notes that the ALJ found that the claimant did not report to his employer’s claims representative that he was asked to work
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outside of his restrictions. See Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 11. He asserts that, since the employer’s representative had no firsthand knowledge as to whether he was being required to work beyond his medical restrictions, “it is undisputable that the Claimant’s job required him to routinely perform multiple tasks well outside his work restrictions.” Claimant’s Brief at 9 (unpaginated). However, the ALJ was not required to credit the claimant’s testimony, even if the testimony is not directly rebutted or contradicted. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (Colo.App. 1970).
The claimant also argues that the he cannot be held responsible for his separation from this employment because the separation was effectively caused by his physical limitations. However, as noted above, the ALJ did not credit the claimant’s testimony that he resigned because he could not perform his regular job duties in excess of his physical restrictions. Instead, the ALJ found that the claimant resigned for what amounted to personal and family reasons. Order at 4, ¶ 15. The ALJ therefore concluded that it was not the effects of the claimant’s injury that resulted in his separation, but his resignation for personal reasons which, in turn, established that the claimant acted volitionally in leaving his employment.
The claimant further states that the ALJ effectively misconstrued his written response to an interrogatory propounded by the employer. The claimant testified about his response to the employer’s interrogatory asking him to state the reason his employment was terminated. The claimant responded that his treating physician released him to full duty and that he was not capable of continuing his normal job duties. Tr. at 47-48. The ALJ found that the claimant’s response explained he resigned because the authorized physician released him to work “full duty” rather than because he was being asked to work outside his restrictions. Order at 3, ¶ 12. The claimant maintains, as he did at the hearing, that any discrepancy in his response between being released to “full duty,” rather than to “full-time” duty was likely due to an error in the preparation of his written response. Tr. at 48; Claimant’s Brief at 9 (unpaginated). However, the ALJ’s order expressly states that the import of the claimant’s response was that he did not state in his response that he resigned because he had been asked to work outside his restrictions. Order at 3, ¶ 12. The claimant also cites the reference in his written response to advising the employer’s agent he could not perform his normal job duties because he was in too much pain. Tr. at 48. The claimant therefore argues that his written response to the employer’s interrogatory shows he was required to perform his regular job duties outside of his medical restrictions. The claimant’s assertions essentially invite us to reconsider the evidence presented at hearing. However, our authority to disturb the ALJ’s weighing of the evidence is extremely limited. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, (Colo.App. 1995). We find no basis for disturbing the ALJ’s findings and his corresponding determination that the claimant was responsible for his separation from this employment.
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The claimant also argues that a person endorsed by the employer as a potential witness, but not called to testify, would have direct knowledge of the circumstances surrounding his resignation. However, the claimant in a workers’ compensation claim is expected to be prepared to present all of his evidence at the appointed hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). In addition the claimant does not allege that he was prevented from calling the employee as a witness.
Finally, the claimant argues that the ALJ erred when he did not allow the claimant to call an adjustor for the employer as a rebuttal witness. The claimant sought testimony from Ms. Adkins, who adjusted his claim for the employer prior to Ms. Vockel, who testified at the hearing. The ALJ determined that the alleged purpose of presenting the previous adjustor’s testimony was not relevant to the issues whether the claimant resigned for personal reasons or whether the employer failed to accommodate his restrictions. Tr. at 81.
The decision whether to admit rebuttal testimony is committed to the sound discretion of the ALJ, and we may not interfere with the decision to exclude testimony unless an abuse is shown. In re Marriage of Antuna, 8 P.3d 589 (Colo.App. 2000). Furthermore, the ALJ generally enjoys wide discretion in the conduct of evidentiary proceedings IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). An abuse of discretion is not shown unless the ALJ’s ruling 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 (Colo.App. 2001).
The claimant’s offer of proof appears to have been as follows: “To see if . . . what Ms. Vockel testified to as was in her notes is actually what she did on the file.” Tr. at 80. The claimant did not explain how the other adjustor’s testimony would serve that purpose. In any event, the claimant argues that he was entitled to call and examine the prior adjustor on his case as a rebuttal witness and that the adjustor’s testimony “was crucial in establishing the credibility of the testimony of Laura Vockel,” who later adjusted his case. Claimant’s Brief at 11-12. It therefore appears that the claimant sought to somehow impeach the credibility of Ms. Vockel, rather than refute the employer’s case in chief. See People v. Taylor, ___ P.3d ___, No. 04CA0179, slip op. at 17 (Colo.App. Oct. 5, 2006), quoting People v. Welsh, 80 P.3d 296, 304
(Colo. 2003) (rebuttal evidence tends to contradict adverse party’s case and impeachment usually focuses on credibility of declarant). We find no abuse of discretion by the ALJ under the circumstances.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 15, 2006, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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Safeway, Inc. 2321 West Eisenhower Blvd. Loveland, CO, Safeway, Inc. Laura Vockel, T.A. Denver, CO, Ring Associates PC Bob L. Ring, Esq., Bldg C Fort Collins, CO, (For Claimant).
Thomas, Pollart Miller LLC Karen A. Lindeman Esq., Suite 220-A, Greenwood Village, CO (For Respondents).
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