W.C. No. 4-347-891Industrial Claim Appeals Office.
September 20, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied his claim for temporary total disability benefits commencing October 16, 1997. The claimant argues the evidence compelled the ALJ to find that his wage loss was “to some degree” the result of the industrial injury. The claimant further contends the ALJ erred in allowing the late endorsement of a witness. We affirm.
The claimant suffers from bilateral arthritis of the knees which was previously found to be compensable. This condition was apparently diagnosed in July 1997, but the claimant returned to his pre-injury work as a “box handler” at the employer’s plant. This job required the claimant to lift heavy boxes and bend his knees.
The claimant was discharged by the employer on October 15, 1997, following an incident where he was found sleeping on the job. Since the discharge, the claimant has remained unemployed despite conducting a job search for light duty employment. However, the claimant has continued to operate a small farm which requires him to care for cattle and pigs and grow hay.
The ALJ found, on conflicting evidence, that the claimant was at fault for his post-injury separation from the respondent-employer. The ALJ also found the claimant presented “no credible evidence” that the post-separation wage loss was to some degree the result of the industrial injury. Consequently, the ALJ denied the claim for temporary disability benefits commencing October 16.
I.
On review, the claimant first contends the ALJ applied an incorrect legal standard in determining he was not entitled to temporary disability benefits subsequent to the termination. The claimant asserts that his testimony concerning the unsuccessful job search, together with lingering difficulties in performing heavy work, required the ALJ to award temporary disability benefits. We find no error.
The claimant’s argument notwithstanding, we see no evidence that the ALJ misapplied the law. Where, as here, a claimant is at fault for separation from post-injury employment, the right to temporary disability benefits is contingent on the claimant proving by a preponderance of the evidence that the subsequent wage loss was to some degree the result of the industrial injury PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 549 (Colo. 1995). The question of whether the claimant proved a relationship between the industrial injury and post-separation wage loss is one of fact for determination by the ALJ. Black Roofing, Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Evidence not expressly credited is considered to have been discredited. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999). We specifically note that, although evidence of a post-separation job search may be considered in determining the cause of the wage loss, it is only one of many relevant factors. Black Roofing, Inc. v. West, supra. Further, the ALJ should consider whether a job search was unsuccessful because of physical restrictions caused by the industrial injury, or for other reasons. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496
(Colo.App. 1995).
Here, substantial evidence supports the ALJ’s finding that the claimant’s post-separation wage loss was not to any degree caused by the industrial injury. There was evidence that before the separation the claimant continued to perform relatively heavy work as a boxer. As the ALJ found, the claimant also performed farming duties after the separation. Although the claimant conducted a job search, he appears to have restricted himself to light duty employment despite evidence he could perform heavier work. Thus, the ALJ need not have inferred that the failed job search was indicative of wage loss attributable to the injury.
It is true that some evidence in the record could support contrary findings and conclusions. However, the ALJ explicitly discredited such conflicting evidence, and we decline the claimant’s invitation to substitute our judgment concerning the inferences to be drawn from the record.
II.
The claimant next contends the ALJ erred in permitting the testimony of the respondents’ private investigator. The claimant argues that, contrary to Rule of Procedure VIII (A) (6), 7 Code Colo. Reg. 1101-3 at 22, the respondents did not endorse the witness in their response to the application for hearing. In fact, the claimant points out the respondents did not move to endorse the investigator until June 19, 1998, five days prior to the hearing. Under these circumstances the claimant argues the ALJ abused his discretion by permitting testimony from the witness. We disagree.
Rule VIII (A) (6) provides that a party may not introduce the testimony of an unendorsed witness “except to present rebuttal testimony or upon approval of the administrative law judge for good cause shown.” Under this provision, the ALJ has wide discretion in determining whether, and under what circumstances, to permit the late endorsement of a witness. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors relevant to the good cause determination include the reasons for the late endorsement, the relative inconvenience to the parties if late endorsement is permitted, and the importance of the evidence to a proper adjudication of the issue. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). An abuse of discretion is not shown unless the ALJ’s order is “beyond the bounds of reason.”Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, we perceive no abuse of discretion in the ALJ’s decision to permit late endorsement of the private investigator. As revealed by the respondents’ motion to endorse the investigator, the ALJ was aware the proposed testimony concerned surveillance of the claimant’s physical ability to perform work on the farm. Thus, the ALJ knew the evidence was potentially outcome determinative with respect to the claimant’s entitlement to temporary total disability benefits. In fact, the investigator’s testimony proved influential in the ALJ’s decision. (See Finding of Fact 5). Further, the ALJ recognized that presentation of the testimony would inconvenience the claimant and present potential due process problems if the claimant had not had sufficient time to prepare. Consequently, the ALJ offered the claimant a continuance for purposes of preparing cross-examination and rebuttal. However, the claimant declined this opportunity. Under these circumstances, we cannot say the ALJ’s decision to permit the late endorsement exceeded the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 27, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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. 1999.
Copies of this decision were mailed September 20, 1999 to the following parties:
Richard Clark, 17555 County Rd. V, Fort Morgan, CO 80701
Excel Corporation, Attn: Deb Carlock, C.S. 4100, Fort Morgan, CO 80701
Crawford Co., Attn: Stacy Strickland, 7000 S. Yosemite, #150, Englewood, CO 80112
Regina M. Walsh Adams, Esq., 1011 37th Ave. Ct., #201, Greeley, CO 80634 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Fort Collins, CO 80526 (For Respondents)
By: A. Pendroy