W.C. No. 4-715-768.Industrial Claim Appeals Office.
August 21, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated April 16, 2008 that ordered the claimant to pay a penalty. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a lower right leg laceration while working for the employer on March 25, 2005. On June 12, 2007, the respondents served the claimant with interrogatories. Pursuant to W.C. Rule of Procedure 9-1, 7 Code Colo. Reg. 1101-3 at 29, the claimant’s response to interrogatories was due within 20 days of mailing or in this case no later than July 2, 2007. When the claimant failed to respond to discovery, the respondents scheduled a prehearing conference on the issue of respondents’ motion to compel discovery. A prehearing conference was held before a Prehearing Administrative Law Judge (PALJ) on August 8, 2007. The prehearing addressed issues on the claim here as well as a subsequent claim against the same respondents identified as W.C. Number 4-714-063, which was also set for hearing. The PALJ issued an order compelling the claimant to answer the respondents’ interrogatories no later than August 17, 2007. The claimant failed to respond to the interrogatories by August 17, 2007. The respondents filed a motion to add as an issue for hearing penalties and attorney fees against the claimant for his failure to comply with the PALJ discovery order. The motion was granted. The claimant continued to ignore the PALJ discovery order and the respondents sought another prehearing conference in order to obtain an order continuing the scheduled hearing. A prehearing was held and a PALJ entered an order granting respondents’ motion to continue the hearing because the claimant’s refusal to comply with discovery was found to be good cause. The hearing was vacated. The claimant continued to ignore his obligation to comply with discovery until November 5, 2007 when the claimant
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provided responses to the respondents’ June 12, 2007 interrogatories. The claimant’s responses were 126 days late, and the claimant had been in violation of the PALJ’s discovery order for 80 days. At hearing, the claimant provided no excuse or good cause for his choice to ignore both his duty to respondents to discovery and his duty to comply with the PALJ’s discovery order.
The ALJ concluded that the claimant had violated W.C. Rule of Procedure 9-1(A)(2) and was liable for a penalty. The ALJ found that claimant was in violation for a period of 80 days and awarded a penalty of $15 per day pursuant to § 8-43-304(1), C.R.S. 2007 for a total of $1,200.
I.
On appeal, the claimant contends that he cannot be penalized for the same action in two separate and distinct workers’ compensation cases. We are not persuaded.
The claimant has filed the same brief here in support of the petition to review of ALJ Walsh’s April 16, 2008 order as he has in a companion case bearing W.C. No. 4-715-063. That case involved the same parties but involved a September 5, 2006 alleged injury to the claimant’s left foot. In the claim numbered W.C. No. 4-715-063, ALJ Stuber ordered the claimant to pay the insurer the sum of $585 for attorney fees.
The claimant argues that prior to the two separate hearings, the procedural matters in the two cases were handled together. The claimant argues that the pre-hearing conferences concerned both cases. 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 Stuber’s action in awarding attorney fees and therefore ALJ Walsh’s order must be reversed. According to the claimant, the penalties assessed in this case must be set aside because ALJ Stuber’s award of attorney fees covers both cases that were tried together in the pre-hearing procedures. We are not persuaded that ALJ Walsh erred in awarding penalties.
Under § 8-43-304(1), any person who fails, neglects, or refuses to obey any lawful order for payment of medical benefits is subject to a fine of up to $500 per day. See
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Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001); Pioneers Hosp. v. Indus. Claim Appeals Office, 114 P.3d 97 (Colo.App. 2005). 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. 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. It may be as the claimant argues that the 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.
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 action. ALJ Stuber awarded attorney fees for the respondents’ counsels’ 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 he was first penalized 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 Walsh did not consider the claimant’s ability to pay the penalties and without such consideration, the penalty may not stand. However, the record contains no transcripts of the hearing before ALJ Walsh.
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
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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 Walsh’s order.
Further, ALJ Walsh found that the actions of the claimant had harmed the respondents by causing delay in the ultimate resolution of the claim. ALJ Walsh found that the claimant’s motivation was difficult to discern, but it was reasonable to infer that the motivation was to hinder respondents in their litigation of the claim. ALJ Walsh further found that the claimant had done nothing to mitigate the violations and that his actions showed a pattern of misconduct.
We cannot say the penalty was excessive or disproportionate to the claimant’s conduct. Fines under § 8-43-304(1) may be assessed at the rate of $500 per day. Here, ALJ Walsh imposed daily penalties of $15 a day, which is substantially less than the legislatively determined maximum rate, and in the context of willful and repeated actions.
IT IS THEREFORE ORDERED that the ALJ’s order issued April 16, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
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ALAN RICHARDSON, MONUMENT, CO, (Claimant).
STAUFFER SONS CONSTRUCTION, INC., Attn: RON STAUFFER/ANDY STAUFFER, C/O: 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 ALESIA GILLIS, C0, (Other Party).
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