W.C. No. 4-328-619Industrial Claim Appeals Office.
October 28, 1998
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated March 19, 1998. The claimant contends the ALJ erred insofar as he denied temporary disability benefits prior to October 31, 1997. We set aside the contested portion of the order, and remand for entry of a new order.
The claimant suffered a compensable injury on February 2, 1995, while working as an Assistant Manager for the Gasamat Oil Corporation (Gasamat). The claimant continued to work for Gasamat until March 27, 1995. Between April 12, 1995 and May 5, 1995, the claimant was employed by the Plantorium. The claimant subsequently worked at Comsco until February 12, 1997.
The claimant filed an Application for Hearing on the issue of temporary disability. The claimant sought an order awarding temporary total and temporary partial disability benefits for various periods commencing March 27, 1995. A hearing was scheduled for January 30, 1998.
The claimant testified that as a result of the industrial injury he was physically unable to perform his regular employment during the disputed periods. Furthermore, he stated that his temporary disability was the cause of his employment termination by Gasamat, the Plantorium and Comsco.
The ALJ found that the claimant failed to prove that the industrial resulted in a disability prior to October 31, 1997. In support, the ALJ found that neither of the claimant’s attending physicians, Dr. Donner and Dr. Russell, released the claimant from work except for the period October 31, 1997 to November 7, 1997. Furthermore, the ALJ found that the claimant was at fault for the loss of the various employments. In so doing, the ALJ rejected the claimant’s testimony and relied upon the testimony of the respondents’ witness, Larry Ortivez (Ortivez) who stated that the claimant had no physical limitations during his employment at the Plantorium and was discharged for reasons unrelated to the industrial injury. The claimant timely petitioned for review of the ALJ’s order.
I.
The petition to review alleges, inter alia, that the ALJ’s findings of fact are not supported by the evidence. In particular, the claimant contends that the record does not support the ALJ’s finding that there is no evidence the claimant was physically unable to perform his employment or that he was released from work during the disputed periods. We agree.
To obtain an award of temporary total disability benefits, the claimant must prove that the industrial injury has caused a “disability,” that he left work as a result of the injury and has sustained an actual loss of wages. Section 8-42-103(1), C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). For purposes of temporary disability benefits, a “disability” exists when the claimant is unable to fully perform the duties of her pre-injury employment. PDM Molding, Inc. v. Stanberg, supra; see also McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
There is a distinction between the terms “no evidence” and “no credible evidence.” Accordingly, where the ALJ finds that there is “no evidence” to support a particular proposition, we are not free to presume that the ALJ found “no credible evidence” to support the proposition. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
Here, the ALJ found that there is “no evidence in the medical record that the claimant was released from work by his authorized treating physicians, March 27, 1995 to April 11, 1995.” (Findings of Fact 2, 3). The ALJ also found that “there is no evidence to support that the claimant was released from work by his authorized treating physicians from 5-5-95 to 5-20-95.” (Finding of Fact 7). Further, the ALJ found that there is “no support in the medical record that the claimant was released from work” after February 12, 1997. (Finding of Fact 10).
However, in a letter dated April 16, 1997, Dr. Donner opined that the claimant “continues to have significant disability and is unable to perform his previous occupation as a manager/trainee on a full-time basis.” Similarly, in a November 14, 1997 response to a letter from the claimant’s attorney, Dr. Donner stated that the claimant “was probably unable to perform his usual occupation as a manager/trainee on a full-time basis from March 24, 1995 to May 10, 1995 and again from February 13, 1997 to the present and continuing as a result of the February 2, 1995 injury.” See also
(Donner depo. p. 17). Dr. Donner also testified that another doctor from his office examined the claimant on February 12, 1997, and restricted the claimant to working four hours a day. (Donner depo. p. 13). Further, Dr. Donner testified that following an examination on March 20, 1997, he felt the claimant was unable to work. (Donner depo. p. 10). Therefore, the record contains some evidence which, if credited would support a finding that the claimant was medically restricted from performing his regular employment during the disputed periods.
We also note that in a letter dated June 25, 1997, Dr. Russell deferred to the opinions of Dr. Donner and Dr. Young. Therefore, contrary to the ALJ’s determination, the record contains conflicting opinions regarding the claimant’s ability to perform his regular work during the disputed periods. See
(Conclusion of Law 3).
We recognize the ALJ’s finding that the “deposition of Dr. Donner establishes he did not release claimant from work until October 1997.” (Finding of Fact 1). However, it is unclear whether the ALJ recognized the contrary evidence in Dr. Donner’s reports and deposition. Therefore, we decline to presume that the ALJ resolved the conflict by crediting Dr. Donner’s admission that he did not give the claimant a written release from work until October 1997.
Furthermore, we are unable to ascertain how the ALJ would have assessed the sufficiency and probative value of the claimant’s testimony that he was terminated from the various employments due to his physical limitations from the industrial injury had the ALJ been aware of the medical evidence that the claimant was physically unable to perform his regular employment. Consequently, we must remand the case for the ALJ to reconsider the evidence and enter a new order on request for temporary disability prior to October 31, 1997.
II.
The claimant also contends that the ALJ erroneously allowed the presentation of Ortivez’s testimony because he was not an endorsed witness and not a “rebuttal” witness as found by the ALJ. We conclude that additional findings are necessary to resolve the claimant’s appellate argument.
The respondents’ Response to the Application for Hearing did not expressly list Ortivez as a witness. However, on January 29, 1998, the respondents filed a pleading to “identify” Ortivez, as a “potential rebuttal witness.”
At the conclusion of the claimant’s case-in-chief the respondents offered Ortivez’s testimony to refute the claimant’s evidence that the termination of his employment at the Plantorium was due to his physical limitations resulting from the industrial injury. The claimant objected on grounds that the respondents did not comply with the Rules of Procedure VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22, and did not provide adequate notice that they intended to present Ortivez’s testimony. However, the ALJ found that Ortivez was a “rebuttal” witness, and therefore, the ALJ overruled the claimant’s objection. (Tr. pp. 36, 37).
“Rebuttal” testimony refers to evidence presented by the “proponent” of a claim to refute evidence presented in the opponent’s case-in-chief. See People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); Wigmore on Evidence, § 1873 (1976). It follows that only the proponent of a claim may present rebuttal evidence See People v. Lewis, supra; Taylor v. Mazzola, 150 Colo. 553, 375 P.2d 96 (Colo. 1962).
In contrast, “surrebuttal” evidence is presented by the party defending a claim to meet matters introduced by the proponent during rebuttal. People v. Brockman, 699 P.2d 1339 (Colo. 1985) Wigmore on Evidence § 1874 (1976). Thus, surrebuttal is available only after the proponent has presented rebuttal testimony. This order of proof permits each party an opportunity to present evidence, the need for which may not have been anticipated in its case in chief. See Taylor v. Mazzola, supra; Brownson-Rausin v. Valley View Hospital, W.C. No. 3-101-431
(August 26, 1997); Fellini v. Atlas Roofing, W.C. No. 3-680-165
(July 27, 1992).
The claimant bore the burden to prove his entitlement to temporary disability benefits. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). It follows that the claimant was the “proponent” of the claim at the hearing on January 30, 1998. Thus, the claimant was the only party entitled to offer “rebuttal” evidence for purposes of Rule VIII(A)(6).
Because the claimant did not present rebuttal evidence, the respondents were not entitled to present surrebuttal testimony. Under these circumstances, the respondents necessarily offered Ortivez’s testimony as part of their case-in-chief, and the ALJ erroneously determined that Ortivez could testify as a “rebuttal” witness. Our conclusion is buttressed by the fact that the respondents identified Ortivez as a potential witness immediately prior to the hearing. Thus, Ortivez was not offered to refute evidence the respondents had not anticipated as part of the claimant’s case-in-chief.
Furthermore, the fact that Ortivez was offered to “rebut” the claimant’s testimony does not support the conclusion that Ortivez’s testimony qualifies as “rebuttal” evidence for purposes of Rule VIII(A)(6). Evidence offered by the opponent of a claim as part of its case-in-chief is always offered to “rebut” the proponent’s evidence.
Moreover, our interpretation of Rule VIII(A)(6) supports the rule’s objective of providing all parties with reasonable notice of the evidence to be presented at hearing. The respondents’ interpretation of the rule would defeat that purpose and encourage parties to refrain from disclosing the identities of their witnesses.
The ALJ expressly relied on Ortivez’s testimony to reject the claimant’s testimony of a causal connection between the industrial injury and his temporary wage loss prior to October 31, 1997. See PDM Molding, Inc. v. Stanberg, supra, (for award of temporary disability benefits, injury must contribute “to some degree” to wage loss). Therefore, we cannot say the ALJ’s ruling was harmless error.
Rule VIII(A)(6) provides that:
“A party may not produce a witness at a formal hearing who has not been listed in the application or response, or added by agreement or order, except to present testimony or upon approval of the administrative law judge for good cause shown.”
It is undisputed that there was no stipulation allowing the late endorsement of Ortivez. Consequently, the respondents could only submit the disputed testimony upon approval by the ALJ for “good cause shown.” See Weaver v. Powderhorn Coal Co., W.C. No. 3-045-615 et. al., (March 27, 1991). Because the ALJ erroneously characterized Ortivez was a rebuttal witness, he did not determine whether the respondents established good cause to present the disputed testimony.
On remand, the ALJ must enter a new order which contains specific findings of fact concerning whether the respondents established good cause to present Ortivez’s testimony. If the ALJ determines that good cause was not established he shall enter a new order without regard to the testimony of Ortivez.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 19, 1998, is set aside insofar as it denied the claim for temporary disability benefits prior to October 31, 1997, and the matter is remanded to the ALJ for additional findings and the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed October 28, 1998 to the following parties:
Kenneth W. Campbell, 2212 Charolais Dr., Ft. Collins, CO 80526
Gasamat Oil Corporation of Colorado, P. O. Box 18690, Boulder, CO 80308
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Charles E. Withers, Esq., P. O. Box 4417, Boulder, CO 80306-4417 (For Claimant)
Kyle L. Maus, Esq., 2629 Redwing Rd., Ste. 330, Fort Collins, CO 80526
BY: _______________________