W.C. No. 4-219-360Industrial Claim Appeals Office.
March 4, 1997
CORRECTED ORDER
This matter is before us pursuant to the respondents’ “Motion for Corrected Order” filed on February 20, 1997. We grant the respondents’ motion and correct our Final Order dated February 4, 1997.
In Part II of our Final Order, we held that the ALJ’s order dated April 18, 1995, did not contain sufficient findings of fact to support the ALJ’s conclusion that the claimant’s wage loss, subsequent to August 8, 1994, was not to some degree caused by the industrial injury. We stated that the ALJ “made no specific findings of fact concerning the claimant’s testimony, or the effect of her continuing restrictions on her ability to find work.” Thus, we remanded the matter for entry of findings of fact concerning the claimant’s entitlement to temporary disability benefits commencing August 8, 1994. See PDM Molding v. Stanberg, 898 P.2d 542 (Colo. 1995).
In their Motion for Corrected Order, the respondents point out that the ALJ entered a Supplemental Order dated June 24, 1996. In the Supplemental Order, the ALJ explicitly discredited the claimant’s testimony that her physical restrictions, as of August 8, impaired her ability to find post-separation employment. The ALJ also found that the claimant testified in only the most general terms concerning her inability to work, and “did not testify that she looked for employment.” Consequently, the ALJ inferred that the claimant did not look for employment after August 8.
The respondents correctly state that our Final Order failed to account for the Supplemental Order of June 24, 1996. Therefore, we must now consider the claimant’s timely petition to review the Supplemental Order.
Relying on PDM Molding, Inc. v. Stanberg, supra, the claimant contends that her restrictions to some degree impaired her ability to find work after her August 8 discharge. In support, the claimant cites her own testimony that the restrictions affected her ability to find and retain “replacement work.” (Tr. p. 30). The claimant argues that her testimony was unrebutted, and therefore, the ALJ was not entitled to disregard it. Further, the claimant alleges that the ALJ’s ruling misinterprets PDM by establishing a requirement that the claimant conduct a job search. We are not persuaded.
In PDM Molding, Inc. v. Stanberg, supra, the court held that respondents have the burden to establish that a claimant was terminated for fault. If the respondents meet this burden, the claimant has the burden to establish that the work-related injury contributed to some degree to an inability to secure employment at pre-injury wage levels.
The effect of the claimant’s restrictions on her ability to find post-separation employment is factual in nature. Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). When applying this standard, we may not interfere with the ALJ’s resolution of conflicts in the evidence, his credibility determinations or the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the ALJ need not credit any testimony, even if it is unrebutted Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993).
The claimant’s argument notwithstanding, the ALJ was not required to credit her unrebutted testimony that the injury affected her ability to find post-separation employment. The ALJ did not find the claimant’s testimony credible, and the record does not contain evidence corroborating the claimant’s testimony. Thus, we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the credibility of the claimant’s testimony, and the inferences to be drawn therefrom.
Neither do we agree with the claimant that the ALJ misinterpreted PDM Molding v. Stanberg by creating a requirement that the claimant present specific evidence of a job search. We have previously held that evidence concerning a claimant’s attempt to find employment is relevant in determining whether the post-separation wage loss is to some degree caused by the injury. Medina v. Cobe Laboratories, W.C. No. 4-161-616, 4-188-940, March 5, 1996. Here, the ALJ could logically infer that, because the claimant failed to present evidence of a job search, that no such job search occurred. Further, the ALJ could find that, under these circumstances, the claimant did not prove her entitlement to benefits.
The claimant also argues that the ALJ’s “green sheet,” dated October 30, 1996, withdrew the June 24 Supplemental Order because it states that a “Supplemental Order is not necessary or appropriate.” However, the ALJ signed the green sheet after the June 24 order, and we read it to mean that the ALJ did not intend to modify the June 24 order. In any event, an ALJ may not issue a “supplemental order” for purposes of altering a prior supplemental order. Rather, review of supplemental orders is conducted by the Industrial Claim Appeals Panel. Section 8-43-301(6) (7), C.R.S. (1996 Cum. Supp.). Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989).
IT IS THEREFORE ORDERED that our Final Order dated February 4, 1997, is corrected to reflect that the ALJ’s order dated April 18, 1995, and the Supplemental Order dated June 24, 1996, are affirmed insofar as they deny temporary disability benefits commencing August 8, 1994 and continuing.
IT IS FURTHER ORDERED that our Final Order of February 4, 1997, is otherwise incorporated herein as if fully set forth.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum.Supp.).
Copies of this decision were mailed March 4, 1997 to the following parties:
Teresa Meraz, 1851 West 35th, Denver, CO 80211
Metropolitan Association for Retarded, 1515 S. Broadway, Denver, CO 80210-2607
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Roger Fraley, Jr., Esq., 3113 E. Third Ave., Ste. 200, Denver, CO 80206 (For the Claimant)
By: _______________________________