IN RE ARCHULETA, W.C. No. 4-364-082 (5/17/04)


IN THE MATTER OF THE CLAIM OF EPIFANIO ARCHULETA, Claimant, v. WESTERN FORGE CORPORATION, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-364-082.Industrial Claim Appeals Office.
May 17, 2004.

FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied an offset against permanent total disability (PTD) benefits. We affirm.

The ALJ ordered the respondent to pay PTD benefits at the rate of $404.96 per week offset by the claimant’s receipt of Social Security disability benefits. However, the ALJ found no competent evidence to support the respondent’s request to offset its liability by the claimant’s pension benefits, and therefore, the ALJ denied the requested offset. The respondent timely appealed. After the matter was briefed, the ALJ “Green Sheeted” the matter to us for review.

I.
On review the respondent contends the testimony of Vivian Parker, (Parker) constitutes “some evidence” to support the requested offset. Therefore, the respondent argues the record fails to support the ALJ’s finding of “no competent” evidence on the offset issue. Further, the respondent contends the ALJ failed to address the credibility of Parker’s testimony. Consequently, the respondent requests an order remanding the matter to the ALJ for additional findings of fact and the entry of a new order concerning the pension offset.

Sections 8-43-103(1)(c)(II)(b) and (II.5), C.R.S. 2004, provide that where the claimant receives “employer-paid retirement benefits” the aggregate benefits payable for PTD shall be reduced by an amount determined as a percentage of the employer-paid retirement benefits, “by a weighted average of the employer’s contributions.”

Because the offset reduces the respondent’s liability for permanent total disability benefits it is an affirmative defense. Consequently, the respondent bears the burden to prove the “weighted average” of the employer’s contributions to the retirement benefits. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).

As argued by the respondent, there is a distinction between the terms “no evidence” and “no competent evidence.” Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988). The term “competent evidence” is defined as “that, which is the very nature of the thing to be proven,” Blacks Law Dictionary, Sixth Edition (1990), as opposed to the absence of evidence.

We also note that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and by not citing testimony, the ALJ implicitly rejected it. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

Here, the respondent concedes the only evidence in the record concerning the source of the claimant’s retirement benefits was the testimony of Vivian Parker (Parker), who stated that the employer provided a pension paid for by the employer. However, when asked what portion of the pension was paid by the employer, Parker replied that she did not know. (Tr. April 1, 2004, pp. 11-12). Thus, we disagree with the respondent’s contention that the record contains evidence concerning the proportional share of the employer’s contribution to the claimant’s retirement benefits.

The ALJ did not specifically reference Parker’s testimony and under these circumstances, the ALJ could reasonably find that Parker’s testimony contained no competent evidence concerning the “weighted average” of the employer’s contribution to pension. Therefore, the ALJ did not err in finding neither party presented any “competent” evidence to grant an offset under § 8-42-103(1)(c).

II.
Alternatively, the respondent contends that the offset must be granted to avoid a double recovery by the claimant. Accordingly, the respondent argues the ALJ abused his discretion in refusing to reopen the record to allow the respondent to present additional testimony from Mari Lombardi to prove the employer paid 100 percent of the claimant’s pension benefits. We perceive no basis to disturb the ALJ’s order.

When ruling on a petition to review, the ALJ has authority to reopen the proceedings for the receipt of additional evidence. Section 8-43-207(1)(j), C.R.S. 2004; § 8-43-301(5), C.R.S. 2004. Factors which may be considered in ruling on such a request include whether or not the evidence could have been discovered and presented at the hearing through the exercise of due diligence, the expense and inconvenience to the opposing party if additional evidence is allowed, and whether or not the evidence has the potential to be outcome determinative. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).

The decision of whether to permit additional evidence is discretionary with the ALJ. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. Consequently, we may not interfere unless the decision is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).

We perceive no abuse of discretion in the ALJ’s refusal to reopen the hearing to take additional evidence. First, we note that Mari Lombardi was not an endorsed witness. Further, the record contains evidence that during permitted discovery the respondent was specifically asked to explain the factual basis for the pension offset. Despite a motion to compel and an order compelling the respondent to answer the discovery, the details were not disclosed. Thus, the respondent knew or should have known that the claimant did not concede the respondent’s right to the pension offset.

We also note that at the conclusion of the hearing on December 18, 2004, respondent’s counsel insisted that neither party be allowed to produce any witness at the continued hearing on April 1, 2004, that was not present on December 18. (Tr. December 18, 2003, pp. 328-329). Then at the conclusion of the hearing on April 1, 2004, the respondent’s counsel did not seek to reopen the evidence or make an offer of proof concerning the weighted average of the employer’s contribution. But the respondent did object to the claimant’s request to make an offer of proof on an endorsed issue. (Tr. April 1, 2004, p. 122).

Finally, the respondent’s post-hearing position statement did not request an opportunity to provide additional evidence on the pension issue. Instead, the respondent erroneously argued it was the claimant’s burden to prove what portion of the pension was paid by the employee. Taking these facts in their totality, we cannot say the ALJ’s implicit refusal to reopen the evidence exceeds the bounds of reason. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra, (we may consider findings which are necessarily implied by the ALJ’s order) Dziewior v. Michigan Corp., 672 P.2d 1026, 1029 (Colo.App. 1983).

IT IS THEREFORE ORDERED. May 17, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________ Kathy E. Dean
____________________ Robert M. Socolofsky

Epifanio Archuleta, Colorado Springs, CO, Mari Lombardi, Western Forge, Colorado Springs, CO, Emily Finn, Sedgwick CMS, Greenwood Village, CO, Steven U. Mullens, Esq., Colorado Springs, CO, For Claimant).

Scott Schiff, Esq. and T. Paul Krueger, II, Esq., Colorado Springs, CO, (For Respondent).