W.C. No. 4-722-115.Industrial Claim Appeals Office.
August 5, 2008.
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FINAL ORDER
The claimants seek review of an order of Administrative Law Judge Martinez (ALJ) dated April 8, 2008, that denied and dismissed the claimants’ claim for benefits. We affirm.
A hearing was held on the issues whether Michael David White (referred to as the decedent) died as a result of injuries sustained within the course and scope of his employment, whether the decedent was an independent contractor, whether Katie Anderson (referred to as the claimant) and Christian David White were dependents of the decedent, whether the decedent’s medical care prior to his death was authorized, whether the employer should be penalized for its failure to have workers’ compensation insurance, and whether the employer was liable for the decedent’s funeral expenses. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The employer in this claim distributes Mission Tortillas and other Mission products to retail stores in Delta and Montrose, Colorado. Troy Anderson was the owner of the employer’s business. The decedent worked for the employer, delivering the employer’s products to stores and stocking the shelves with it. The decedent only worked on days when Troy Anderson was also working. On April 22, 2007, Troy Anderson told the decedent that the two might not work the next day, and that Troy Anderson would telephone the decedent during the morning of April 23rd to inform him whether they were working. He telephoned him in the “early hours” of April 23rd
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and told him that they would not be working that day and that the decedent could have the day off.
Prior to distributing its products, the employer stored them in a warehouse in Delta, Colorado. Early in the morning of April 23rd the owner of the warehouse, Charles Pope, saw the decedent sitting in a car parked near the warehouse. Pope asked the decedent what he was doing and the latter replied that he had the day off and was “just killing time.” At 9:23 a.m. the decedent purchased a soft drink and some aerosol dust remover from a Wal Mart in Montrose. At 9:33 a.m. he was driving northbound on a highway near the airport in Montrose, when he turned left and was struck by a vehicle traveling southbound on the highway. Shortly after the accident he died as a result of his injuries. The decedent was driving a car owned by the claimant’s grandmother.
The claimant and the decedent lived together for more than a year prior to the decedent’s death. The claimant sought death benefits for herself and her son, contending that they had entered into a common law marriage. She also admitted, however, that they intended to marry when the decedent, who was 18 at the time of his death, reached the age of 21. The ALJ rejected the claimant’s testimony as not credible or persuasive. He credited the testimony of Troy Anderson and Pope.
The ALJ expressly found that the decedent was not performing work for the employer at the time of his death. He found that the decedent was not working at all that day and therefore was not traveling in connection with his job. Accordingly, the ALJ denied the claim for benefits. Because of his resolution of the issue of compensability the ALJ did not resolve any of the other issues.
The ALJ also resolved several procedural motions in his order, including the claimant’s motion to add Troy Anderson as an individual party, a motion to amend the caption to reflect that Troy Anderson was an individual party, and a motion to dismiss the claim. The ALJ denied the claimant’s motions, which were all first made in the claimant’s post-hearing position statement. Regarding the motion to add Troy Anderson as an individual party, the ALJ noted the claimant’s argument that 37-71-104(3), C.R.S. 2007 provides that a person having filed a trade name with the secretary of state may be sued under that trade name. However, the ALJ found that no evidence had been offered that Troy Anderson had actually filed such a statement. The ALJ further relied on the claimant’s delay until the close of the evidentiary portion of the hearing in making the motion to join Troy Anderson. The ALJ concluded that joining him individually at that point of the proceedings would deny him the due process right to notice and an opportunity to defend the claim. Accordingly, the ALJ denied the claimant’s motion to join Troy Anderson as an individual.
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The claimant appealed the ALJ’s order and makes three arguments. She first argues that the ALJ erred in refusing to join Troy Anderson individually as a party to the claim. The claimant also argues that the ALJ denied her the right to procedural due process protections by permitting Pope to testify at the hearing. Finally, the claimant argues that the ALJ erred as a matter of law in finding that the decedent was not working for the employer at the time of the accident that resulted in his death. Because we reject the claimant’s second and third arguments it is unnecessary for us to resolve the contention that the ALJ erred in failing to join Troy Anderson individually.
I.
The claimant argues that her right to procedural due process was violated when the ALJ permitted Pope to testify, given that he had not been identified as a witness in response to the claimant’s interrogatories, no summary of his testimony was provided prior to the hearing, and a copy of a writing used to refresh his recollection was not provided to the claimant prior to the hearing. We are unpersuaded that the ALJ erred or abused his discretion in this respect.
As we understand the claimant’s argument, she contends that the ALJ abused his discretion in refusing to preclude Pope’s testimony as a sanction for the respondent’s alleged discovery violations. Workers’ Compensation Rule of Procedure 9-1 applies to discovery in workers’ compensation procedures. Rule 9-1(E) provides that “[i]f any party fails to comply with the provisions of this rule and any action governed by, an administrative law judge may impose sanctions upon such party pursuant to statute and rule.” Section 8-43-207(1)(e), C.R.S. 2007 permits an ALJ to impose the sanctions provided in the civil rules of procedure for willful failure to comply with permitted discovery. Those sanctions are various and range from the assessment of costs and fees to the outright dismissal of a claim or defense. Witness preclusion is one sanction that may be imposed for a party’s failure to comply with discovery. See C.R.C.P. 37. In order for a discovery violation to be considered “willful” the ALJ must determine that the conduct was deliberate or exhibited “either a flagrant disregard of discovery obligations or constitutes a substantial deviation from reasonable care in complying with discovery obligations.” Reed v. Industrial Claim Appeals Office, 13 P.3d 810, 813 (Colo.App. 2000). The ALJ has wide discretion in determining whether a discovery violation has occurred and, if so, the appropriate sanction to be imposed. See 38-43-207(1)(p), C.R.S. 2007; Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Because the ALJ’s determinations in this respect are discretionary, we may only disturb the ALJ’s order if it exceeds the bounds of reason, such as where it is wholly unsupported by the evidence or is contrary to applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001).
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In our view the ALJ did not abuse his discretion in permitting Pope to testify. He was endorsed as a potential witness in the respondent’s Response to Application for Hearing, filed on December 19, 2007, and again in their Case Information Sheet, filed on February 12, 2008. When the respondent sought to call Pope to testify, the claimant objected on the grounds that interrogatories served in September 2007 requested the names of all witnesses who would be called, along with a summary of their testimony. The claimant’s attorney noted that Pope had not been identified as a witness in the answers to the interrogatories, and she sought to preclude his testimony. Tr. (Feb. 21, 2008) at 50. The respondent’s counsel responded that the interrogatories referred to by the claimant’s attorney were served in connection with a previous application for hearing, which had subsequently been withdrawn. Tr. (Feb. 21, 2008) at 52-53. He argued that when a later application for hearing was filed the interrogatories were not automatically continued so as to be applicable to that later application.
As we understand the ALJ’s ruling, he rejected the claimant’s argument that the interrogatories served in connection with a previous application for hearing should have been construed as continuing and therefore applicable to a later application for hearing. Thus, the ALJ noted that the interrogatories had been served in regard to a previous application for hearing, and that no further discovery was sought when the subsequent application was filed. Tr. (Feb. 21, 2008) at 65. We cannot state that the ALJ erred in this respect. It is true that Rule 9-1(C) provides that “[e]ach party is under a continuing duty to timely supplement or amend responses to discovery up to the date of the hearing.” However, the intent of the rules and statute appears to be that permitted discovery is specific to particular hearings. For example, Rule 9-1(A)(3) provides that certain discovery may not be submitted later than “40 days prior to hearing.” Similarly, Rule 9-1(D) provides that discovery “shall be completed no later than 20 days prior to the hearing date.” And, as noted, Rule 9-1(C) provides for supplementation or amendment of the discovery responses “up to the date of the hearing.” And § 8-43-207(1)(e), C.R.S. 2007, which empowers administrative law judges to “permit parties to engage in discovery” specifically refers to the authority of the director and administrative law judges to act “in connection with hearings. . . .” Indeed, a contrary interpretation of the rules and the statute might lead in other cases to results that were incongruous or even nonsensical. It is not unusual for workers’ compensation cases to continue for years and to be comprised of numerous proceedings or hearings. Thus, if discovery were construed as always continuing even after cancellation of a hearing, a party might be forced to search back through voluminous files covering a long period of time to investigate the discovery that might be outstanding and might require supplementation or other response. Especially in cases where successive applications are filed endorsing different issues for hearing, it is unlikely that previous interrogatories or other discovery will be relevant to
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the issue most recently endorsed. If issues are added or deleted in successive applications for hearing it appears to us unreasonable to require both parties to review previous discovery with a view to determining which might still be relevant and which not. In our view, the ALJ’s interpretation of the rules relating to discovery is a reasonable one and we therefore cannot say that his order permitting Pope to testify “exceeded the bounds of reason.” Therefore the ALJ did not abuse his discretion in that respect.
Finally, we note that insofar as the claimant has couched her argument in terms of a violation of her due process right to notice, that argument is without merit. As noted, Pope was endorsed as a witness both in the respondent’s Response to Application for Hearing and in their Case Information Sheet. The claimant’s failure to serve interrogatories seeking additional information after the filing of their last application for hearing cannot manufacture a due process violation based upon the claimant’s lack of knowledge regarding the nature of Pope’s testimony.
II.
The claimant also argues that the ALJ erred in ruling that the decedent was not working for Troy Anderson at the time of his accident. In connection with this argument, the claimant contends that substantial evidence does not support the ALJ’s factual finding that the decedent was not working when the accident occurred. We disagree with the claimant’s argument that the factual record here compelled the ALJ to award death benefits.
The parties and the ALJ recognize the well-established principle that where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a compensable injury. E.g., Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained her burden of proof is generally a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the evidentiary record. Section 8-43-304(8), C.R.S. 2007. “Substantial evidence is that quantum of probative evidence which a rational fact-finder could accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995).
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
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Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807
(Colo.App. 2001).
Here, the claimant ably and thoroughly recites the testimony from which the ALJ could have inferred that the decedent was working at the time of his motor vehicle accident. However, contrary to the claimant’s argument, this is not “hard, certain” evidence rendering the testimony of Troy Anderson and Pope incredible as a matter of law. Rather, it is merely conflicting evidence to be weighed and evaluated by the ALJ. In this regard, the court of appeals has stated that it is the fact finder and not the appellate forum that determines the credibility of witnesses, and that it is only when testimony is “so palpably incredible and so totally unbelievable” that the appellate forum may reject it as a matter of law. People v. Dash, 104 P.3d 286 (Colo.App. 2004) quoting People v. Franklin, 645 P.2d 1, 4 (Colo. 1982). Although not made in the context of a workers’ compensation or other administrative proceeding, the court of appeals’ statement in People v. Ramirez, supra. is useful in understanding the sort of testimony that could be deemed incredible as a matter of law. The court stated that:
Testimony that is `incredible as a matter of law’ is that which is in conflict with nature or fully established or conceded facts. It is testimony as to facts which the witness physically could not have observed or events that could not have happened under the laws of nature. See, e.g., Day v. State, 92 Wis.2d 392, 400, 284 N.W.2d 666 (1979. Accord United States v. Emerson, 128 F.3d 557, 561 (7th Cir. 1997) (“unbelievable on its face, physically impossible for the witness to observe, or contrary to the laws of nature”); United States v. Garner, 581 F.2d 481, 485 (5th Cir. 1978)(“unbelievable on its face, [that is] facts that (the witness) physically could not have possibly observed or events that could not have occurred under the laws of nature”); Parker v. State, 280 Ala. 685, 691, 198 So.2d 261, 267 (1967) (“inherently and physically impossible because irreconcilable with physical facts and common observation”); People v. Harlan, 222 Cal.App.3d 439, 453, 271 Cal.Rptr. 653, 661 (1990) (“physical impossibility [or falsity that is] apparent without resorting to inferences or deductions”); Budaj v. Connecticut Co., 108 Conn. 474, 476, 143 A. 527, 528
(1928 (“in conflict with indisputable physical facts”); Patton v. State, 117 Ga. 230, 245, 43 S.E. 533, 534 (1903) (“seeks to establish facts which arePage 7
impossible”); Brown v. Mailhot, 89 N.H. 240, 241, 196 A. 764, 766 (1938) (“in conflict with indisputable physical facts”); State v. Hornsby, S.W.2d 892, 894 (Tenn. 1993) (“cannot possibly be true, is inherently unbelievable, or is opposed to natural laws”).
People v. Ramirez, 30 P.3d at 809.
We have examined the record and, contrary to the claimant’s argument, the testimony of Troy Anderson and Pope falls far short of being incredible as a matter of law. Rather, in our view, it constitutes substantial evidence supporting the ALJ’s factual findings regarding the decedent’s circumstances at the time of his accident. As we understand the claimant’s argument, it is essentially that, having weighed the competing evidence and evaluated its probative value, the ALJ was by law permitted to reach only the single conclusion that the decedent suffered a compensable accident. As noted, we reject that argument. Since the ALJ’s determination that the decedent was not working when he had the motor vehicle accident is supported by substantial evidence in the record, we must uphold those factual findings. In turn, they support the ALJ’s conclusion that the decedent did not sustain a compensable accident. Therefore, we perceive no error in the ALJ’s dismissal of this claim.
As noted previously, because we have affirmed the ALJ’s dismissal of the claim, it is unnecessary for us to resolve the claimant’s contention that the ALJ erred in not joining Troy Anderson as an individual. Given the dismissal of the claim, there is no legal theory that would render Troy Anderson liable as an individual where the employer was dismissed on the ground that no compensable accident occurred.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 8, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Curt Kriksciun
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KATIE ANDERSON, 2837 MARGO COURT, GRAND JUNCTION, CO, (Claimant).
ANDERSON DISTRIBUTING, Attn: TROY ANDERSON, 2880 PINEHURST LANE, GRAND JUNCTION, CO, (Employer).
KILLIAN, JENSEN DAVIS, PC, Attn: AMY K EATON-FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant).
KAIN and BURKE, PC, Attn: WILLIAM H KAIN, ESQ., GRAND JUNCTION, CO, (For Respondents).