W.C. No. 4-020-550Industrial Claim Appeals Office.
March 11, 1997
FINAL ORDER
The respondents seek review of a final order and a corrected order of Administrative Law Judge Rumler (ALJ), which awarded the claimant temporary partial disability benefits commencing February 1, 1996. We affirm.
The ALJ found that the claimant sustained the compensable occupational disease of berylliosis. The “onset” of this disease was in August 1990, when the claimant suffered a collapsed lung and missed several days of work. As a result of the occupational disease, the claimant was restricted from wearing a respirator.
Between November 1995 and February 1, 1996, the claimant worked a late shift which paid a higher wage than the day shift. The ALJ found that on February 1, 1996, the respondent-employer “removed” the claimant from the late shift because berylliosis prevented the claimant from wearing a respirator. The claimant was then put on the day shift at a lower wage rate.
The ALJ further found that the claimant earned $1207.54 for each week that he worked between November 1995 and February 1, 1996. Therefore, the ALJ ordered the respondents to pay temporary partial disability at the rate of sixty-six and two-thirds percent of the difference between $1207.54 and the claimant’s weekly earnings subsequent to February 1.
I.
On appeal, the respondents contend there is no proof that the claimant’s loss of earnings after February 1, 1996, was causally connected to his inability to wear a respirator, or any other restriction resulting from the industrial injury. The respondents assert that the record is devoid of evidence that the claimant could not have continued to perform his duties on the late shift. Further, the respondents assert there is no “medical evidence” which precluded the claimant from continuing to work. We disagree.
Under the law applicable to this claim, the claimant was entitled to temporary partial disability benefits as a result of his actual loss of wages causally connected to the industrial injury. See J.D. Lunsford v. Sawatsky, 780 P.2d 76
(Colo.App. 1989). The question of whether the claimant proved the requisite causal relationship is one of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 461
(Colo.App. 1990).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we are obliged to defer to the ALJ’s resolutions of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
As the respondents argue, the ALJ ruled that the claimant was precluded from testifying to his supervisor’s statement concerning the reason he was removed from the late shift. However, the claimant was permitted to testify that his removal occurred shortly after an incident where he was precluded from entering a building because of the restriction against using a respirator, and the employer was required to call another employee from the “other side of the plant” to enter the building. Further, there was evidence that the employer had reduced the number of employees on the late shift in October 1995. (Tr. pp. 50-53).
Under these circumstances, the ALJ could logically infer that the reason the claimant was removed from the late shift was that the claimant’s respirator restriction could no longer be accommodated due to a reduction in force. Although the ALJ need not have drawn this inference, we cannot say that she erred as a matter of law in doing so. Moreover, the medical records of Dr. Newman, as well as the claimant’s own testimony, establish the existence of the respirator restriction. Therefore, there is substantial evidence to support the ALJ’s finding of a causal connection between the injury and the claimant’s wage loss.
In reaching this result, we need not consider the respondents’ assertion that the ALJ may have considered “hearsay testimony.” The ALJ expressly excluded the claimant’s testimony concerning the supervisor’s statements, and did not refer to this testimony in the order. Thus, we understand the ALJ to have found that the claimant’s testimony was sufficient, without regard to the alleged hearsay testimony, to support the award. Since we agree with this conclusion, we do not consider the hearsay issue.
II.
Respondents next contend that the ALJ erred in failing to determine the claimant’s average weekly wage. The respondents also assert that the evidence is insufficient to support review of the ALJ’s determination that the claimant’s wage was $1207.54 per week. We are not persuaded.
Respondents’ argument notwithstanding, Finding of Fact 7 fully explains the basis of the ALJ’s determination that the claimant had earned $1207.54 per week. Thus, the findings are sufficient to support appellate review.
Moreover, the ALJ did not err in using that amount as the basis for calculating the claimant’s entitlement to temporary partial disability benefits. Under former § 8-42-106, C.R.S. (1990 Cum. Supp.), the claimant was entitled to receive sixty-six and two-thirds percent of the “impairment of said employee’s earning capacity” during the continuance of temporary partial disability. Under this statute, ALJ’s were not automatically required to deduct the claimant’s post-injury earnings from the average weekly wage at the time of the injury if such calculation would not accurately reflect the claimant’s temporary impairment of earning capacity. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Here, the ALJ could plausibly conclude that the claimant’s earnings in 1990 would not accurately reflect the impairment of his earning capacity in 1996. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Under these circumstances, the ALJ reasonably determined that the claimant’s partial wage loss was best determined by comparing his earnings on the late shift for several months prior to February 1, 1996, with the wages he earned on the day shift after February 1. We perceive no error in this conclusion. See University Park Holiday Inn/Winegardner Hammons, Inc. v. Brien, 868 P.2d 1164
(Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 19, 1996, and the corrected order dated September 3, 1996, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
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 11, 1997 to the following parties:
Ronald A. Roerish, 4847 McKinley Dr., Boulder, CO 80303
Rockwell International, P.O. Box 464, Golden, CO 80402-0464
Travelers Insurance Co., Attn: Karen Gilmore, P.O. Box 173762, Denver, CO 80217
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Respondents)
By: _______________________________