W.C. No. 4-288-614Industrial Claim Appeals Office.
July 23, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) insofar as the ALJ denied his claim for temporary total disability benefits. We affirm.
The claimant sustained an admitted low back injury on November 25, 1995, which temporarily precluded him from performing his regular employment. However, the employer provided part-time employment within the claimant’s medical restrictions. The claimant continued to work for the employer performing modified employment until July 2, 1996.
The ALJ found that the claimant voluntarily terminated his employment on July 2 because he was “fed up” with his job circumstances. Expressly relying upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ also found that the claimant’s medical restrictions did not contribute to his temporary wage loss after the voluntary employment separation. In support, the ALJ found that the claimant applied for work which was beyond his restrictions, and implicitly, that the claimant did not restrict his work search because of his limitations. The ALJ also found that the claimant applied for work with employers who did not have job openings. Therefore, the ALJ found that the claimant’s physical limitations from the industrial injury were not considered by the potential employers. Consequently, the ALJ denied the claimant’s request for temporary total disability benefits commencing July 3, 1996.
On review, the claimant contends that the evidence is contrary to the ALJ’s finding that the industrial injury did not contribute to his temporary wage loss after July 2. The claimant argues that the industrial injury necessarily contributed to his wage loss because he has an eleventh grade education, minimal transferrable skills, and was subject to medical restrictions which prohibited him from lifting, carrying, pushing or pulling over forty pounds, crouching, bending over, climbing, kneeling and squatting. The claimant also asserts that the industrial injury must have contributed to his inability to find other employment after July 2 because he applied for work with forty employers, but was not offered a job. We disagree.
As recognized by the ALJ, PDM Molding, Inc. v. Stanberg, supra, holds that where the injured employee is found to be “at fault” for the loss of modified employment, the injured employee is precluded from recovering temporary total disability benefits in connection with a subsequent wage loss, unless the injured employee proves that the industrial injury contributed “to some degree” to his inability to secure employment at his pre-injury wage level. The question of whether the claimant has sustained his burden of proving that the injury contributed to his inability to secure employment, is one of fact for resolution by the ALJ. PDM Molding, Inc. v. Stanberg, supra; Horton v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996). Consequently, we must uphold the ALJ’s determination that the claimant failed to sustain his burden of proof if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Accordingly, if the record contains substantial evidence from which the ALJ could reasonably infer that the claimant’s industrial injury did not contribute to his unemployment after July 2, 1996, it is immaterial that the record contains some evidence, which if credited, might support the determination sought by the claimant. Moreover, in applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses, and the probative weight of the evidence. Durocher v. Industrial Claim Appeals Office, supra.
Here, the claimant testified that he contacted numerous employers in an attempt to find employment after July 2, 1996. (Tr. pp. 55, 57). However, he admitted that none of these employers refused to employ him due to his medical restrictions. Rather, the claimant testified that the employers were not hiring, and that he therefore did not discuss the issue of his medical restrictions with the potential employers. (Tr. pp. 58, 59). Moreover, the claimant testified that he applied with a moving and storage company to perform “any” type of work. (Tr. p. 55).
The claimant’s testimony constitutes substantial evidence to support the ALJ’s pertinent findings of fact. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Furthermore, in view of the claimant’s testimony, the ALJ reasonably inferred that the claimant’s physical limitations from the industrial injury did not contribute to his wage loss after July 2.
Nevertheless, the claimant contends that the ALJ should have inferred that when the potential employer had subsequent job openings, they rejected the claimant’s application due to his medical restrictions. However, the record does not contain evidence concerning whether there were subsequent job vacancies with any of the employers contacted by the claimant. Therefore, we are not persuaded that the ALJ was compelled to draw the inference sought by the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 23, 1997 to the following parties:
Michael J. Zickler, 4350 S. Carefree Cir., Colorado Springs, CO 80917
Auto Works of Colorado, Inc., 525 S. Nevada Ave., Colorado Springs, CO 80903-3922
Wallace Baylor, RTW Colorado, Inc., 7400 E. Orchard Rd., Ste. 3025, Englewood, CO 80111
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909, (For the Claimant).
Patricia Jean Clisham, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202, (For the Respondents).
BY: ________________________________