W.C. No. 4-108-582Industrial Claim Appeals Office.
November 5, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ), insofar as it determined the claimant’s average weekly wage. We affirm.
The ALJ found that the claimant and his wife were employed by respondent Aero Mayflower Transit, Inc. (Mayflower), as cross country truck drivers. This employment lasted from February 12, 1991 until March 13, 1991, when the claimant was injured.
Relying on the claimant’s 1991 income tax return, the ALJ found that Mayflower paid the claimant $3,774.44 during the time he was employed by Mayflower. The ALJ also credited the claimant’s testimony that he drove the truck only ninety percent of the time “during the approximately 29 days” he worked for Mayflower. The remaining ten percent of the driving was done by the claimant’s wife.
The ALJ recognized that if the claimant drove ninety percent of the time, he would have violated Department of Transportation (DOT) regulations concerning the number of hours a driver may work in a week. However, the ALJ noted that the respondents’ witness testified that “many truck drivers violate Department of Transportation regulations so as to be able to earn more money.”
Under these circumstances, the ALJ concluded that a fair calculation of the claimant’s average weekly wage should be determined by dividing $3,774.44 (the total payment) by ninety percent (the amount of time of time the claimant was driving), and then dividing the result by the number of weeks the claimant worked for Mayflower. Ultimately, the ALJ determined that the claimant’s average weekly wage is $819.97.
I.
Following the completion of the hearing, the respondents filed a motion requesting that the ALJ set the matter for an additional hearing pursuant to § 8-43-301(5), C.R.S. 1997. The motion alleges that six days after the December 16, 1996 hearing, counsel for the respondents received “copies of the drivers’ logs for Claimant and his wife from Carmel, Indiana.” The motion further alleges that the respondents were under the “mistaken impression” that the drivers’ logs had been destroyed. Finally, the motion alleges that the logs contradict the claimant’s testimony that he drove ninety percent of the time.
The claimant filed an objection to the request to present additional evidence. The claimant asserted that the respondents had ample time to discover the existence of the logs because the matter was originally remanded for an additional hearing on October 10, 1995. The claimant also pointed out that the “new evidence” was in the possession of the respondents and was clearly available to them prior to the hearing.
On August 20, 1997, the ALJ entered a written order denying the request to present additional evidence. The written order was apparently prepared by counsel for the respondents, but the ALJ crossed out all findings of fact indicating that there was good cause for taking additional evidence.
The respondents now assert that the ALJ erred in denying their motion to present additional evidence. They argue that there was a “mutual mistake” concerning the existence of the logs. Further, they assert that the logs may be outcome determinative since they contradict the claimant’s testimony concerning the amount of time he drove. We find no error.
An ALJ has wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Where the reason for the motion is the desire to present “newly discovered evidence,” the ALJ may consider whether the evidence could have been discovered prior to the hearing through the exercise of reasonable diligence. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). Further, the ALJ may consider whether or not the evidence is likely to be “outcome determinative.” Raffaelo v. Industrial Commission, 670 P.2d 805
(Colo.App. 1983). The ALJ may also consider the inconvenience and expense caused to the party opposing further delay. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
Here, we perceive no abuse of discretion in the ALJ’s refusal to accept additional evidence. In their brief, the respondents concede that, after the hearing, the “log books were discovered by Mayflower.” Consequently, the respondents concede the claimant’s assertion that reasonable diligence could have yielded discovery of the documents prior to the hearing. This is particularly true since the hearing did not occur for more than a year after our order of remand.
It is true that the evidence might be outcome determinative if it contradicts the claimant’s testimony. However, the ALJ did not abuse his discretion in failing to give decisive weight to this factor, particularly in view of the long delays which have already occurred in resolving the issue of the claimant’s average weekly wage.
Moreover, we disagree with the respondents’ characterization of the “mistake” as being “mutual.” To the contrary, the claimant merely testified that he did not possess the logs. It now appears that the logs were in the possession of the respondents, and any “mistake” concerning their location must be attributed to the respondents alone. There is no evidence that the claimant played any role in the respondents’ inability to locate the evidence which they now seek to introduce.
II.
The respondents next contention is that the ALJ failed to resolve conflicts in the evidence, and that his findings of fact are not supported by substantial evidence. Essentially, the respondents argue that the ALJ erred in finding that the claimant and his wife earned a total of $3,774.44. The respondents assert that this finding is inconsistent with the earnings reflected on the “trip sheets.” We find no error.
An ALJ need not make findings of fact concerning every piece of evidence, nor is he required to resolve every possible conflict in the evidence. Rather, it is sufficient that the ALJ enter findings of fact concerning the evidence which he finds to be determinative of the issues involved in the case. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Moreover, insofar as the ALJ’s findings of fact are supported by substantial evidence, we must uphold them. Section 8-43-301(8), C.R.S. 1997. In this regard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Insofar as the testimony of a particular witness contains inconsistencies, the ALJ may resolve them by believing all, part or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
The respondents’ argument notwithstanding, the ALJ made adequate findings of fact to indicate the basis of his order, and resolved the pertinent conflicts in the evidence. The ALJ credited the claimant’s 1991 income tax return insofar as it reflects that he received $3,774.44 from Mayflower’s agent, Zortman Trucking. The fact that there was a minor difference between this amount and the earnings reflected on the “trip sheets” merely demonstrates a conflict in the evidence which was resolved adversely to the respondents. Moreover, the fact that the claimant was able to deduct certain “expenses” on his income tax return does not alter the fact that he received wages in the amount of $3,774.44.
Further, the ALJ was not required to conclude that the amount of the “checks,” as reflected on the trip sheets, proves the claimant’s actual earnings. Rather, as the claimant argues, the evidence indicates that the claimant’s earnings are reflected by the “trip net,” not the “check amount.” This is true because the “check amount” fails to account for advances made to the claimant prior to the trip.
Insofar as the respondents made other arguments concerning the sufficiency of the evidence, we find them to be without merit.
III.
The respondents’ next contention is that the claimant’s testimony that he drove ninety percent of the time is incredible as a matter of law because it contains an “internal non sequitir.” The respondents assert that the claimant could not have driven “continuously” for 29 days without being in violation of DOT regulations. Conversely, the respondents point out that the claimant testified he was never fined for “doing anything wrong.” We perceive no error.
Initially, we note that neither the trip sheets, nor claimant’s testimony, indicates that the claimant and his wife drove “continuously” for 29 days. Although he may have driven on each of the 29 days, the trip sheets suggest that the claimant drove less than “20 hours a day” as argued by the respondents. The trip sheets indicate that the claimant and his wife drove approximately 13,630 miles over 29 days. Assuming an average rate of travel of 50 miles per hour (as testified to by the respondents’ witness), the record indicates that the claimant and his wife drove approximately 470 miles per day, or 9.4 hours. (See Tr. p. 30).
Further, the claimant did not testify that he never violated DOT regulations. A plausible interpretation of the claimant’s testimony, and apparently the one adopted by the ALJ, was that the claimant may have violated the regulations, but did not report the violations to Mayflower. Consequently, the claimant was not “fined” for any violations. The ALJ also relied on the testimony of the respondents’ witness that “many truck drivers violate Department of Transportation regulations so as to be able to earn more money.”
To the extent the claimant’s testimony may be viewed as inconsistent, it was for the ALJ to resolve the inconsistency. Further, the claimant’s testimony is not rebutted by such hard, certain evidence that it may be found incredible as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
IV.
The respondents’ final contention is that the ALJ erred in determining that the average weekly wage is $819.97. The respondents argue that if the total amount earned by the claimant ($3,774.44) is divided by 4 3/7 weeks, the resulting average weekly wage is $767.06. We find no error.
It is true that the ALJ’s Conclusions of Law state that the claimant worked for Mayflower for 4 3/7 weeks. However, the findings of fact state that the claimant worked for Mayflower for 29 days, or 4 1/7 weeks. Thus, the reference to 4 3/7 weeks is a typographical error, and should refer to 4 1/7 weeks. If $3,774.44 is divided by 4 1/7 weeks, the result is consistent with the $819.97 found by the ALJ. Consequently, the order is modified to refer to 4 1/7 weeks rather than 4 3/7 weeks.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 7, 1997, is modified to reflect that the claimant worked with the respondent-employer for 4 1/7 weeks.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 5, 1997 to the following parties:
Ellsworth L. Hoffman, 1053 Avenida Duquesa, Cathedral City, CA 92234
Aero Mayflower Transit, Inc., P. O. Box 107, Indianapolis, IN 46206-0107
Pacific Employers Insurance Company/CIGNA, Attn: Sheila Griffee, P. O. Box 2941, Greenwood Village, CO 80150
Pacific Employers Insurance Company, Attn: Bruce Burton, P. O. Box 911, Portland, OR 97207
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Ronald C. Jaynes, Esq. and Art M. Lee, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondents)
By: __________________________