Opinion
W.C. No. 4-276-604
October 25, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative law Judge Stuber (ALJ) which awarded the claimant temporary total disability benefits from October 27, 1995 through February 8, 1996. We affirm.
The ALJ found, on disputed evidence, that the claimant sustained a compensable shoulder injury on Friday, October 27, 1995. Before he returned to work, the claimant was terminated from his employment on October 30, 1995, ostensibly for absenteeism.
Thereafter, the claimant was examined by Dr. Ladwig on October 31, 1995, and released to return to work with a restriction against using his left arm. The claimant testified that he looked for work in his pre-injury fields of employment including carpentry and driving. He advised the potential employers of his injury, but testified that he was never hired. (Tr. pp. 37-41, 61-62).
The ALJ credited the claimant's testimony that the medical restriction resulting from the industrial injury precluded him from finding employment after he was terminated on October 30. Consequently, the ALJ concluded that the claimant's injury contributed "to some degree" to the post-separation wage loss and awarded benefits for the disputed period.
On review, the respondents contend that the claimant's "self serving testimony" is insufficient to establish that the post-separation wage loss was "to some degree" caused by the industrial injury. Rather, the respondents assert that the claimant should have been required to present the testimony of the potential employers in order to establish that the injury was the reason the claimant was not hired. We disagree.
In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the court held that, if a claimant is at fault for a separation from the employment out of which the injury arose, the ALJ must determine whether the subsequent wage loss was "caused in part by the injury or rather was caused only by the termination for fault." The court concluded that, if the claimant can demonstrate that the subsequent wage loss was "to some degree" caused by the sequelae of the industrial injury, the claimant is entitled to temporary disability benefits. A claimant may meet this burden if he demonstrates that he attempted to find and maintain employment following the discharge, but was unsuccessful due to physical restrictions caused by the injury. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995).
The question of whether the claimant presented sufficient evidence to carry his burden of proof is one of fact for resolution by the ALJ. Lindner Chevrolet v. Industrial Claim Appeals Office, supra; Strain v. Intermountain Steel Manufacturing, Inc., W.C. No. 4-207-093, February 22, 1996. 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.). This standard of review requires that we 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).
The respondents' argument notwithstanding, the claimant's testimony was sufficient to justify the ALJ's inference that the physical limitations caused by the claimant's shoulder injury prevented him from finding employment following the separation. The fact that the claimant's testimony might be categorized as "self serving" concerns its weight, not its admissibility. Therefore, there is no basis for us to interfere with the ALJ's decision to credit the claimant's testimony.
Moreover, nothing in PDM Molding, Inc. v. Stanberg, supra, or any of our decisions on this subject, supports the respondents' argument that the claimant was obliged to produce the testimony of potential employers in support of his claim for temporary disability benefits. Although such testimony might have made the claimant's case stronger, there was no legal requirement that the claimant present such testimony in order to make a prima facie case of entitlement to temporary disability benefits under PDM Molding. Again, the respondents' argument concerns the inferences to be drawn from the claimant's testimony, and affords no basis for relief on appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated March 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed October 25, 1996 to the following parties:
Ronald W. Taylor, 3653 Pecos Rear, Denver, CO 80211
Western Glass Corp., 11205 E. 37th Ave., Denver, CO 80239-3208
Leona Zuffoletto, Liberty Mutual Ins. Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
Kenneth M. Platt, Esq., 1199 Bannock St., Denver, CO 80204 (For the Claimant)
By: _____________________