W.C. No. 4-500-678Industrial Claim Appeals Office.
December 10, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Muramoto (ALJ) which found the claimant sustained a compensable injury and awarded permanent total disability benefits. We affirm.
This statement of the facts is gleaned from various documents contained in the file and a discussion held on the record. In December 2001, the claimant filed an application for hearing seeking, inter alia, a determination of compensability and an award of permanent total disability benefits. A hearing was set for April 25, 2002. On December 20, 2001, the claimant served respondents with interrogatories and a request for production of documents. Insofar as pertinent, the discovery request asked the respondents to produce a “complete detailed summary” of the anticipated testimony of the respondents’ witnesses, the claimant’s personnel file, and the claim file.
Despite two written requests, the respondents did not reply to the discovery request within the 20 day limit established by rule. See Rule of Procedure VIII (E), 7 Code Colo. Reg. 1101-3 at 26. The claimant filed a Motion to Compel discovery on February 20, 2002, and the respondents failed to answer the motion. On March 8, 2002, a prehearing administrative law judge (PALJ) entered an order requiring the respondents to “fully and completely respond to claimant’s interrogatories” within 5 days of receipt of the order. Under the circumstances, the respondents had until Monday, March 18, 2002, to comply with the order.
On March 14, 2002, the respondents filed a motion to add Ricardo Francis as a witness concerning the circumstances surrounding the claimant’s injury. On March 18, 2002, the respondents faxed to the claimant’s counsel a reply to the interrogatories and request for production. The respondents identified Francis as a witness, stating that he would testify that the “claimant asked [Francis] to corroborate [the claimant’s] injury before it happened.” The respondents objected to producing the claimant’s employment file because the claimant could “obtain these records on his own.” The respondents also mailed certain documents to the claimant, which apparently included the claim file.
On March 18, 2002, the claimant filed a Motion to Strike Defenses and For Default Judgment. This motion stated the respondents failed to comply with the PALJ’s order and that the failure was willful.
A prehearing conference was held before the PALJ on March 27, 2002. On April 2, 2002, the PALJ entered an order declining, for jurisdictional reasons, to rule on the claimant’s motion to strike defenses and for default judgment. The order granted the respondents’ motion to add Francis as a witness, but also directed the respondents to inquire of Francis whether he would consent to the employer providing immigration and employment records to the claimant. If not, the claimant was granted permission to depose Francis. The respondents were also to supply an address for Francis. The PALJ again ordered the respondents to provide a detailed statement of the expected testimony of witnesses, including Michael Contreras (a witness listed in the Response to Application for Hearing). The respondents were to comply with the order within 5 days of receipt.
On April 9, 2002, the ALJ entered an order concerning the claimant’s pending motion. Although the ALJ did not enter a “default judgment,” the ALJ ordered that the respondents’ witnesses be “stricken,” that all affirmative defenses be stricken, and the respondents be precluded from introducing documents not exchanged within 20 days of the hearing. No specific findings of fact or legal conclusions are contained in the order.
The matter proceeded to hearing on April 25, and the respondents requested the ALJ to reconsider her order striking the witnesses and defenses. At the hearing the respondents admitted their response to the discovery request was “quite tardy.” However, the respondents argued that the other information requested by the claimant had been provided, although not necessarily by April 8, 2002, as required by the PALJ’s second order. Specifically, a summary of expected testimony by Contreras was not provided until April 10, the claimant’s employment file was not provided until April 11, and some of the Francis documents were provided after the deadline. The claimant’s attorney represented that he never received information concerning Francis’ criminal record.
Following argument, the ALJ ruled there “was still not complete compliance” with the Order to Compel and the prior ruling would not be changed. The ALJ stated that she considered there was no response to the Motion to Compel and the PALJ’s order did not indicate the respondents had substantially complied with the discovery request. (Tr. pp. 34-35).
The claimant was then allowed to testify and present evidence. The respondents were prohibited from calling Francis and Contreras to rebut the claimant’s allegation that he injured himself at work. The ALJ then found the claimant sustained a compensable injury and awarded permanent total disability benefits.
On review, the respondents contend the ALJ erred by imposing the sanctions of excluding witnesses and striking affirmative defenses. The respondents argue the ALJ’s findings are insufficient because there was no finding of willful misconduct which would justify the sanctions imposed. In any event, the respondents assert the evidence does not support the sanctions. We find no error.
Section 8-43-207(1)(e), C.R.S. 2002, permits and ALJ to “impose the sanctions provided in the civil rules of procedure in the district courts for willful failure to comply with permitted discovery.” C.R.C.P. 37 authorizes various sanctions for failure to make discovery which range from assessment of costs and attorney fees to outright dismissal of a claim. Also permitted are exclusion of certain claims or defenses and prohibitions against the introduction of evidence.
In order for a discovery violation to be considered “willful,” the ALJ must determine 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 violation occurred and, if so, the sanction to be imposed. See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Because imposition of sanctions is discretionary, we may not interfere unless the order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001). In this regard, we may set an order aside if the findings are not sufficient to support appellate review. Section 8-43-301(8), C.R.S. 2002.
However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law as long as the ALJ enters sufficient findings to indicate the factual and legal bases of the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2002). Further, the ALJ is presumed to have considered the relevant legal principles, including the statutory criterion of willfulness, when entering the order. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977).
In our view, the ALJ implicitly determined the respondents willfully failed to comply with their requirements. Rule of Procedure VIII (E)(7), 7 Code Colo. Reg. 1101-3 at 27, provides that: “Once an order to compel has been issued and properly served on the parties, failure to comply with the order to compel shall be presumed willful.” Here, the respondents themselves admitted they were delinquent in complying with discovery because the Contreras summary was not provided until April 10 (although Contreras was listed as a witness in the Response to Application for Hearing), the claimant’s employment file was not provided until April 11, and some of the documents concerning witness Francis were not provided by the deadline established by the PALJ.
Moreover, we disagree with the respondents that the ALJ abused her discretion in excluding the testimony of the witnesses and striking the affirmative defenses. The record establishes a pattern of not complying with discovery requirements, commencing with the respondents’ failure to answer the Motion to Compel. After the motion was granted, the respondents failed to deliver documents in a timely fashion, and some documents were not provided until shortly before the hearing. The sanctions did not dispose of the case and the ALJ properly assigned the burden of proof to the claimant. Under these circumstances, we cannot say the ALJ’s order is beyond the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 23, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 10, 2002 to the following parties:
Jose Cortez, 3331 Oneida St., Denver, CO 80207
Shafer Commercial Seating, Inc., 4101 E. 48th Ave., Denver, CO 80214
George Fairbanks, Wausau Insurance Companies, 9457 S. University Blvd., #313, Highlands Ranch, CO 80126
Abel Alvarado, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Douglas W. Poling, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
By: A. Hurtado