W.C. No. 4-142-922Industrial Claim Appeals Office.
April 16, 1996
ORDER OF REMAND
Action RV, Inc., and its insurer, the Colorado Compensation Insurance Authority (Respondents), seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded the claimant permanent total disability benefits. We set the order aside and remand for further proceedings.
The ALJ’s conclusion that the claimant is permanently and totally disabled was based, to a significant degree, on the opinions of the claimant’s vocational expert, Mr. Blythe. The claimant submitted Blythe’s report which stated that, considering the claimant’s work restrictions, educational history, and vocational history the claimant could not secure employment in “any occupation.”
At the time of the hearing, the claimant requested to call Blythe for purposes of contradicting reports authored by the respondents’ vocational expert, Ms. Varga. However, the respondents had not submitted any reports by Varga and they indicated that they intended to call her for “live” testimony. (Tr. pp. 63-64).
Upon learning that the respondents desired to call Varga, the ALJ indicated his preference for a written report. The respondents then offered Varga’s report dated February 21, 1995. This report opines that the claimant is employable in a “substantial number of jobs in the labor market” including assembly work. This report was received into evidence.
However, the respondents indicated that they still desired to call Varga for the purpose of testifying about the results of labor market research which she apparently conducted between February 21 and the March 10, 1995 hearing. The claimant’s counsel objected to the proposed testimony on the grounds that he had informally requested information concerning “any labor market survey work done before the hearing,” and the respondents had not provided any such information until the evening before the hearing. Counsel for the respondents replied that he did not receive the labor market research until the day before the hearing and immediately submitted it to the claimant’s attorney.
The ALJ ruled that Varga could not testify concerning the labor market research conducted after February 21. The ALJ agreed with claimant’s counsel that permitting such testimony would constitute “trial by ambush.” (Tr. p. 67).
On review, the respondents argue that the ALJ erred in excluding the testimony of Ms. Varga. They contend that exclusion of the testimony was contrary to the Workers’ Compensation Act and the Rules of Procedure. They also contend that exclusion of the testimony violated their due process rights. We agree that the respondents had the statutory right to present the testimony.
We have previously held that there is nothing in the rule currently codified at Rule of Procedure VIII(I), 7 Code Colo. Reg. 1101-3 at 26-27, which requires an endorsed expert to submit a report prior to testifying at a hearing. Instead, we have interpreted Rule VIII(I) as prohibiting the introduction of certain types of documentary evidence, under § 8-43-210, C.R.S. (1995 Cum. Supp.), where the evidence has not been provided to the opposing party twenty days prior to the hearing. Hooper v. Powermark Case Corp., W.C. No. 4-176-990, January 30, 1996; Reed v. Demetre Painting, W.C. No. 3-069-138, January 15, 1993. Moreover, we have held that sanctions for failure to make discovery are proper only if a specific discovery violation is proven, and the violation is shown to be willful. Section 8-43-207(1)(e), C.R.S. (1995 Cum. Supp.); Hernandez v. Longmont Dairy Farms, Inc., W.C. No. 4-167-102, December 11, 1995.
Here, the claimant does not deny that Ms. Varga was a properly endorsed witness. Neither does the claimant assert that she conducted any formal discovery which imposed upon the respondents the obligation to “supplement” Varga’s responses in a timely fashion. Varga was not deposed, nor were interrogatories propounded with respect to her testimony.
Under these circumstances, we agree with the respondents that there was no basis for excluding Varga’s testimony. The claimant did not show that the respondents willfully violated any rule or statutory obligation to present an “updated” report from Varga. Therefore, the ALJ had no basis for imposing the severe sanction of excluding Varga’s testimony.
We have considered the claimant’s argument that the ALJ’s order was based on C.R.E. 403. However, the ALJ made no reference to that rule, nor did he make any specific findings determining that the probative value of Varga’s testimony would be substantially outweighed by the prejudice to the claimant. Thus, we decline to infer that this was the basis of the ALJ’s ruling.
Moreover, if the ALJ concluded that the claimant was unfairly surprised by Varga’s testimony, he could have granted a continuance to afford the claimant the opportunity to rebut Varga’s testimony. Section 8-43-207(j), C.R.S. (1995 Cum. Supp.). However, this less extreme measure was apparently not considered, nor did the claimant request it.
Further, we disagree with the claimant’s assertion that the respondents made an inadequate offer of proof. C.R.E. 103(a)(2) provides that an offer of proof must be made unless the substance of the evidence is “apparent from the context within which questions were asked.”
Here, it is apparent from the colloquy on the record that the substance of Varga’s testimony concerned the specific results of labor market research. Moreover, counsel for the respondents indicated that the testimony would support and expand on Varga’s February 21 report. Therefore, it is apparent to us that Varga’s testimony would have contained specific results of labor market research indicating that the claimant was employable in his labor market.
Under these circumstances, we must set aside the ALJ’s order insofar as it determined that the claimant is permanently and totally disabled. The matter is remanded with directions to permit Varga’s testimony, and to permit the claimant and the Subsequent Injury Fund (SIF) to cross-examine and rebut that testimony. In view of this ruling, we need not consider the respondents’ other argument.
IT IS THEREFORE ORDERED that the ALJ’s order, dated April 7, 1995, is set aside, and the matter is remanded for further proceedings and entry of a new order, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed April 16, 1996 to the following parties:
Robert N. Simmonds, 415 E. First St., Loveland, CO 80537
Action RV, Inc., 1425 S. Lincoln Ave., Loveland, CO 80537-7146
Subsequent Injury Fund — Interagency Mail
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
W. M. Busch, Jr., Esq., 903 N. Cleveland, #A, Loveland, CO 80537 (For Claimant)
James E. Martin, Jr., Esq., Office of the Attorney General, Human Resources Section, 1525 Sherman St., 5th Floor, Denver, CO 80203 (For SIF)
By: _________________________