W.C. No. 4-714-063.Industrial Claim Appeals Office.
August 21, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 16, 2008, that ordered the claimant to pay to the insurer the sum of $585 for attorney fees. We affirm.
ALJ Stuber entered an order dated March 18, 2008 in which he denied and dismissed the claimant’s claim for compensation and assessed attorney fees incurred by the respondents in obtaining an order to compel discovery. The respondents were ordered to file an affidavit of attorney fees and either party was allowed to apply for a hearing if the amount of attorney fees was disputed. The respondents did file an affidavit and the claimant did not file an objection to the affidavit of legal fees. The ALJ in the order dated April 16, 2008 that is under review here awarded the insurer the sum of $585 for attorney fees based on the affidavit.
ALJ Stuber’s pertinent findings of fact are as follows. The claimant alleged that he suffered a left foot injury on September 5, 2006 and filed a workers’ claim for compensation. On August 8, 2007, a Prehearing Administrative Law Judge (PALJ) issued an order compelling the claimant to answer respondents’ interrogatories by August 17, 2007. On September 24, 2007, a PALJ issued an order striking the claimant’s application for hearing, vacating the previous hearing and requiring the claimant to answer the interrogatories before re-applying for a hearing. On November 5, 2007, the claimant answered the respondents’ interrogatories. The claimant failed to comply with the order compelling discovery answers. No record evidence was introduced as to the reasons for the delay in providing answers from August 17 to November 5, 2007.
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Pursuant to W.C. Rule of Procedure 9-1(G), Code Colo. Reg. 1101-3 at 30 the failure to comply is presumed to be willful.
The ALJ under § 8-43-207(1)(e), C.R.S. 2007 and CRCP 37(a)(4) awarded attorney fees against the claimant incurred in obtaining the orders compelling answers to discovery. The ALJ found that the total of $585 for attorney fees to obtain the orders compelling answers to discovery was reasonable.
We note that the claimant has filed the same brief here in support of his petition to review of ALJ Stuber’s April 16, 2008 order as he has in a companion case designated W.C. No. 4-715-768. The W.C. No. 4-715-768
case involved the same parties, but involved a right lower leg laceration that occurred on March 25, 2005. In the W.C. No. 4-715-768
claim ALJ Walsh ordered the claimant to pay a penalty of $15 per day pursuant to § 8-43-304(1), C.R.S. for violation of the PALJ’s August 8, 2008 discovery order.
I.
On appeal, the claimant contends that that he cannot be penalized for the same action in two Workers’ Compensation cases. The claimant asserts that prior to the two separate hearings, the procedural matters in the two cases were handled together. He further asserts that the pre-hearing conferences concerned both cases and were held before the same PALJ. The claimant contends that the respondents propounded to the claimant interrogatories on both cases and the claimant delayed in answering the interrogatories on both cases. The claimant argues that when opposing counsel appeared or prepared for the pre-hearing conferences he did so on both cases. Further, the claimant argues that when opposing counsel drafted a prehearing order, the order addressed both cases. Therefore, the claimant concludes that ALJ Walsh in his Order of April 16, 2008 ordered penalties for the same conduct simultaneously addressed by ALJ Stuber in his order of April 16, 2008, which assessed attorney fees.
The claimant argues that ALJ Walsh was deprived of jurisdiction to assess penalties based upon ALJ’s Stuber’s action in awarding attorney fees and therefore ALJ Walsh’s order must be reversed. That argument is considered in the claimant’s appeal of the companion order issued by ALJ Walsh. In the alternative, the claimant essentially requests that the order entered by ALJ Stuber be set aside and remanded with instructions that only attorney fees in regard to the case which he heard may be assessed against the claimant. We are not persuaded that ALJ Stuber erred in awarding attorney fees.
Section 8-43-207(1)(e), C.R.S. 2007, permits an 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
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discovery which range from assessment of costs and attorney fees to outright dismissal of a claim. Cortez v. Shafer Commercial Seating, Inc. W. C. No. 4-500-678 (December 10, 2002).
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).
We reject the claimant’s contention that he was penalized for the same action in two Workers’ Compensation cases. We first note that the claimant sought benefits by filing two separate workers compensation claims and the award of attorney fees under § 8-43-207 was only made on this claim and the award of penalties pursuant to another statute on the separate claim in the companion case. It may be as the claimant argues that attorney for the respondents only had to prepare and appear for one prehearing conference on both cases to obtain the discovery order. However, attorney fees were only ordered in one of the claims and so there does not appear to be a duplication of an award of attorney fees.
Further, the claimant argues that only attorney fees related to the case before ALJ Stuber may be assessed against the claimant by ALJ Stuber. The claimant was given an opportunity to respond to the affidavit submitted by the respondents on attorney fees. The claimant failed to do so. The claimant failed to raise this argument before ALJ Stuber, and it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131
(Colo.App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987).
ALJ Stuber on the claim bearing W.C. No. 4-714-063 awarded attorney fees, but denied the respondents’ request for imposition of penalties under § 8-43-304. On the same day ALJ Walsh in the claim bearing W.C. No. 4-715-768 imposed penalties pursuant to § 8-43-304 but concluded that the penalty was sufficient to address the violation and denied the respondents’ request for attorney fees. Even if we accept the claimant’s general contention that the failure to perform discovery was essentially the same in both claims we are not persuaded that the claimant was penalized for the same
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action. ALJ Stuber awarded attorney fees for the respondent’s counsel’s time required to obtain the order to compel discovery. ALJ Walsh in the companion case imposed penalties on a daily basis for failure to comply with the discovery order. We do not agree with the claimant that he was placed in “double jeopardy” when attorney fees were assessed against him for not responding to discovery requests, which required the respondents to pay attorney fees in order to secure compliance with the discovery rules, and then separately penalized for not complying with that discovery order.
II.
The claimant argues that ALJ Stuber did not consider the claimant’s ability to pay the attorney fees and without such consideration, the award of attorney fees may not stand. However, the record contains no transcripts of the hearing before ALJ Stuber.
The party seeking to overturn a judgment bears the responsibility for producing a record sufficient to demonstrate that an error has occurred. Otherwise, the regularity of the court’s rulings will be presumed See Fleet v. Zwick, 994 P.2d 480 (Colo.App. 1999). Here, the claimant failed to procure a transcript. Consequently, we have no basis for determining what evidence, if any, was presented on the issue of the claimant’s ability to pay. See Thornwall v. Colorado Cartridge/Out of Toner, W. C. No. 4-564-779 (June 24, 2004). Under these circumstances, we presume the regularity of the ALJ’s order and the proceedings leading up to it. Therefore, we are not persuaded to disturb ALJ Stuber’s order.
IT IS THEREFORE ORDERED that the ALJ Stuber’s order issued April 16, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
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ALAN P RICHARDSON, MONUMENT, CO, (Claimant).
STAUFFER SONS CONSTRUCTION, INC., Attn: RON STAUFFER/ANDY STAUFFER, C/O: D/B/A COLORADO TRUSS, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
ALEXANDER RICCI, PC, Attn: WILLIAM A ALEXANDER, JR, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: THOMAS M STERN, ESQ, DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS JERICA JONES/MS ALESIA GILLIS, BLVD, DENVER, CO, (Other Party).
PINNACOL ASSURANCE, Attn: MS RANDY HARRISON, DENVER, CO, (Other Party 2).
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