W.C. No. 4-536-930Industrial Claim Appeals Office.
April 14, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ), which required them to pay temporary disability benefits and a penalty for the violation of the Rules of Procedure, Part VIII(E)(2)(b), 7 Code Colo. Reg. 1101-3 at 27, and § 8-43-207(1)(e), C.R.S. 2003. We modify the award of temporary disability benefits and as modified, affirm.
In an order dated March 24, 2003, the ALJ found the claimant suffered a compensable left knee injury on March 28, 2002. (See Findings of Fact 1). During the course of treatment, the claimant was examined by several physicians, including Dr. Worwag.
On the issue of penalties, the ALJ found the respondents’ attorney unilaterally scheduled Dr. Worwag’s evidentiary deposition without filing a motion to secure an order granting permission for the deposition. Therefore, the ALJ determined the respondents’ violated Rule VIII(E)(2)(b) and § 8-43-207(1)(e) and imposed a penalty of $500. The order also awarded temporary disability and medical benefits. The respondents timely appealed.
On review, we upheld the ALJ’s determination that the respondents violated Rule VIII(E)(2)(b) and § 8-43-207(1)(e). However, we remanded the matter to the ALJ for additional findings of fact concerning whether the respondents’ actions were objectively reasonable.
On remand the ALJ entered an order dated December 1, 2003. The ALJ determined the “respondents failed to establish that unilaterally scheduling the deposition of Dr. Worwag was reasonable.” Therefore, the ALJ concluded “the claimant established the factual and legal basis for a penalty,” and again imposed a $500 penalty.
I.
On review of the December 1 order the respondents contend there was no violation of any rule or statute because the Workers’ Compensation Act differentiates between “discovery” depositions and “evidentiary” depositions. We previously rejected this contention and the respondents arguments do not persuade us to depart from our prior conclusions.
An “evidentiary deposition” may not be substituted for live testimony in a workers’ compensation claim except upon a showing of good cause. Section 8-43-210, C.R.S. 2003. See also Rules of Procedure, Part VIII(I)(2), at 30 (an evidentiary deposition may be filed at the formal hearing). Thus, we reject the respondents’ contention that the claimant’s procedural rights are no different than if the respondents had subpoenaed Dr. Worwag to provide live testimony at the hearing.
Rather, depositions are a form of discovery permitted by Rule of Procedure VIII(E). Rule VIII(E)(2)(b) provides that depositions of a non-party witness require a “written motion, order and written notice to all parties.” Similarly, § 8-43-207(1)(e), states that an ALJ may:
“Upon written motion and for good cause shown, permit parties to engage in discovery; except that permission need not be sought if each party is represented by an attorney and the parties agree to engage in discovery.”
Rule VIII(E)(4) states that “Discovery” other than “evidentiary depositions” shall be completed at least 20 days before the hearing. Because Rule VIII(E)(4) classifies “evidentiary” depositions as a form of “discovery,” and § 8-43-207 does not differentiate between discovery depositions and evidentiary depositions we held in Johnson-Reynolds v. Virtual Industries Inc., W.C. No. 4-266-253 (July 23, 1999), that there is no appreciable distinction between a discovery deposition and an evidentiary deposition. Further, the alleged distinction between a “discovery deposition” and an “evidentiary deposition” makes little practical sense because upon a simple showing of good cause, a discovery deposition may be converted to an evidentiary deposition. See §8-43-210.
The respondents’ arguments concerning factual distinctions between this claim and Johnson-Reynolds do not persuade us to depart from our conclusions in Johnson-Reynolds. Therefore, we reject the respondents’ contention that, unlike a “discovery deposition,” an “evidentiary deposition” may be taken without securing an order allowing permission to take the deposition.
Moreover, because Rule VIII(E)(4) treats all depositions whether labeled “discovery” or “evidentiary” as a form of discovery, we conclude that the Director of the Division of Workers’ Compensation (Director) views all depositions as “discovery” for purposes of § 8-43-207(1)(e). Because the Director is the administrative official charged with the enforcement of the Act we defer to this plausible interpretation of the law. See Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003).
Here, the respondents scheduled the deposition of Dr. Worwag to substitute for Dr. Worwag’s live testimony at a time when the claimant was not represented by an attorney. Thus, § 8-43-207(1)(e) did not authorize the taking of the deposition without “permission” for good cause shown. Consequently, the facts support the ALJ’s determination the respondents violated Rule VIII(E)(2)(b) and § 8-43-207(1)(e).
We also adhere to our prior conclusion that the ALJ’s order does not create a right for pro se litigants that does not exist by statute. Section 8-43-207(1)(e) expressly contemplates that a pro se litigant will obtain the benefit of review by the Director or an ALJ before evidence is taken by deposition. This statute evidences a recognition that, in the absence of an ALJ, represented parties may acquire an exceptional advantage over pro se litigants when examining or cross-examining a witness.
The respondents also contend the ALJ misapplied the burden of proof by requiring them to prove their actions were objectively reasonable, instead of requiring the claimant to prove the respondents actions were objectively unreasonable. In any case, the respondents contend the ALJ’s finding that their actions were unreasonable is not supported by substantial evidence in the record or the applicable law. We are not persuaded.
Section 8-43-304(1), C.R.S. 2003, allows ALJs to impose penalties up to $500 per day against any employer or insurer who violates a statute or procedural rule. See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The imposition of penalties under §8-43-304(1) is a two-step process and the party seeking penalties bears the burden of proof. See Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). The ALJ must first determine if the respondents’ actions violated a rule or statute. If the ALJ finds a violation, the ALJ also must determine whether the violator’s actions were objectively reasonable. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). The reasonableness of the violator’s actions depends on whether the actions were predicated on rational argument based in law or fact and this determination is one of fact for the ALJ. Jiminez v. Industrial Claim Appeals Office, ___ P.3d. ___ (Colo.App. No. 02CA2283, September 11, 2003). Further, in Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194, 1197
(Colo.App. 1999), the court held that where the violator fails to offer a reasonable factual or legal explanation for its actions, the ALJ may infer the opposing party sustained its burden to prove the violation was objectively unreasonable.
Here, the respondents did not present any evidence to explain their violation. Rather, they argued their actions were based on a rational interpretation of Rule VIII(E)(2)(b) and § 8-43-207(1)(e). In light of administrative decisions previously issued on the subject, the ALJ was not required to find as a matter of law that the respondents’ interpretation of Rule VIII(E)(2)(b) and § 8-43-207(1)(e) was reasonable. See Johnson-Reynolds v. Virtual Industries Inc., supra.
Moreover, the ALJ could, and did, implicitly determine that, absent another explanation, the respondents’ violation was objectively unreasonable. Therefore, the claimant sustained her burden to prove that a reasonable insurer under similar circumstances would not have scheduled Dr. Worwag’s deposition without obtaining an order permitting the deposition. Consequently, we are not persuaded the ALJ’s findings reflect a misapplication of the burden of proof. Further, the ALJ’s findings are supported by substantial evidence and plausible inferences drawn from the record. Therefore, we may not disturb the $500 penalty imposed for the violation.
II.
The respondents also renew their contention that the ALJ’s order contains a typographical error insofar as the ALJ awarded temporary total disability benefits commencing February 29, 2002, because the ALJ found the injury did not occur until March 28, 2002.
As argued by the respondents, the ALJ found the claimant was injured on March 28, 2002. However, he also determined the claimant was disabled by the industrial injury from “February 29 until April 28, 2002.” (Finding of Fact 25). Then based upon his conclusion that the claimant was injured on “February 28, 2002,” the ALJ awarded temporary disability benefits from February 29, 2002 to May 13, 2002. (Conclusions of Law 1, 3: Order 2, 3).
The claimant does not dispute the alleged error in the award of temporary disability benefits. Indeed, the claimant alleged the injury occurred on March 28, (see Claimant’s Rule VIII(I)(1) Submission of Records, 1, 5) and accepted the respondents’ recitation of the facts on appeal. (See Claimant’s Brief in Opposition to Respondents’ Petition to Review, February 17, 2004). Therefore, we shall modify the ALJ’s order accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 2003, is modified to award temporary total disability benefits from March 29, 2002, through April 28, 2002, at the rate of $240.00 per week and, as modified, the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 14, 2004 by A. Hurtado.
Mary Thomson, P. O. Box 1092, Meeker, CO 81641
Patty Merriam, Pioneers Hospital of Rio Blanco County, 345 Cleveland, Meeker, CO 81641
Colorado Hospital Association Trust, c/o Mary Ann Donelson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)