W.C. No. 4-337-182Industrial Claim Appeals Office.
July 12, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant is permanently and totally disabled. The respondents contend ALJ erroneously precluded the presentation of expert vocational testimony. We disagree and, therefore, affirm.
In 1996 the claimant suffered a compensable shoulder injury. The claimant ultimately filed an Application for Hearing on the issue of permanent total disability benefits.
A hearing was set for January 21, 2000. However, based upon problems “obtaining documentary information from Respondents’ endorsed vocational expert,” the parties agreed to continue the hearing. The parties also stipulated to the entry of an order dated February 4, 2000, which provided that:
“2. Respondents are ordered to provide to Claimant, in written form, a statement as to all jobs that Respondents allege would be appropriate for Claimant along with all relevant information concerning the nature of the work location of the job and why the job is appropriate. That information shall be provided in writing to Claimant’s counsel no later than 20 days prior to the next hearing.
3. Respondents, by stipulation, shall be precluded from offering any testimony concerning potential employment for Claimant beyond the information contained in the written documents provided to Claimant as described immediately above.”
On August 2, 2000, another ALJ issued an order which required the parties to “exchange expert vocational reports with the other side no later than ten days prior to hearing” and prohibited the Respondents from offering “evidence of alleged suitable employment for Claimant with employers other than those employers and for jobs other than those jobs that have been identified prior to this ten day pre-hearing cut off date.”
The respondents’ vocational expert, Elizabeth Mauer (Mauer), issued a report dated October 25, 1998, which was timely exchanged along with Mauer’s notes of contacts with potential employers. However, Mauer subsequently became unavailable to testify. At the commencement of the hearing on September 28, 2000, the respondents attempted to submit a report from Mauer dated April 27, 2000. It is undisputed the April report was not timely provided to the claimant. (Tr. October 5, 2000, p. 27). The respondents also offered a report dated September 21, 2000, from vocational expert Diane Koons (Koons). The claimant objected on grounds that the reports violated the prior discovery orders. The ALJ agreed and, therefore, excluded the disputed reports. (Tr. September 28, 2000, p. 13); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). The ALJ also prohibited the respondents from presenting expert testimony from Koons. Thereafter, the claimant presented the testimony of his vocational expert. The respondents’ evidence was presented on October 5, 2000.
At the commencement of the October 5 hearing, the respondents attempted to introduce Mauer’s report dated October 25, 1998. The claimant objected on grounds of surprise. The claimant argued that had the respondents intended to rely on the October 25 report, the report should have been offered at the September 28 hearing where the claimant’s vocational expert was present to comment on the report. The ALJ determined that admission of the report would violate the claimant’s due process rights. Therefore, the ALJ excluded the October 25 report.
Based upon the medical record and the testimony of the claimant’s vocational expert, the ALJ found the claimant is unable to earn any wages. Therefore, the ALJ awarded benefits for permanent and total disability. This appeal followed.
On appeal, the respondents contend they timely provided Mauer’s October 25, 1998 report, and Mauer’s list of employment contacts. The respondents also contend that even though Koons’ report was not exchanged more than ten days before the hearing, the delay was due to the claimant’s refusal to submit to an interview by Koons until September 14, 2000.
Further, the respondents point out that Rule VIII(A)(1)(b), Code Colo. Reg. 1101-3 at 21, allows a party to present the testimony of all witnesses properly endorsed on an Application or Response to Application for Hearing. They contend that because both Mauer and Koons were properly endorsed on their Response to the Application for Hearing, the ALJ erroneously precluded them from substituting Koons’ testimony for Mauer’s testimony.
The respondents also rely on § 8-43-210 C.R.S. 2000, which provides that vocational reports may be submitted as evidence without formal identification. Therefore, they contend that the disputed vocational reports were improperly excluded. We reject these arguments.
The applicable law is undisputed. Under § 8-43-207(1)(e), C.R.S. 2000, sanctions may be imposed as provided in the rules of civil procedure in the district courts for the “willful failure to comply with permitted discovery.” Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers’ Compensation Act). Under C.R.C.P. 37 witness preclusion is one sanction which may be imposed for a party’s failure to comply with discovery.
In general, the ALJ has discretionary authority to fashion an appropriate remedy for a willful discovery violation. Section 8-43-207(1)(p), C.R.S. 1998. Locke v. Vanderark, 843 P.2d 27 (Colo.App. 1992). Consequently, we may not disturb the ALJ’s order in the absence of a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The legal standard on review of an alleged abuse of discretion is whether the ALJ’s order is order beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
As argued by the respondents, a “willful” violation requires deliberate or intentional misconduct. Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo. 1987). Furthermore, the party requesting sanctions bears the burden to prove a “willful” violation of the permitted discovery. Cf. Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163
(Colo.App. 1983). However, this requirement may be waived. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995) (procedural due process can be waived).
Waiver is the intentional relinquishment of a known right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). A waiver may be explicit or implicit, and may be established by conduct which evidences a parties intent to relinquish a know right Johnson v. Industrial Commission, supra.
Here, the respondents voluntarily stipulated to supersede the provisions of Rule VIII(A)(1)(b) and § 8-43-210, and limit the nature and scope of expert vocational evidence to be presented on the issue of permanent total disability. In particular, the respondents agreed to restrict expert vocational evidence “to the vocational opinions expressed in writing and provided to Claimant’s counsel within 20 days prior to hearing.” Therefore, the respondents’ arguments concerning the application of Rule VIII and § 8-43-210 are without merit. Durbin v. Bonanza Corp., 716 P.2d 1124, 1128 (Colo.App. 1986) (stipulations are a form of judicial admission, and a party may stipulate to waive valuable rights).
Furthermore, the respondents stipulated in advance that if they failed timely to exchange all expert vocational opinions in writing they would be “precluded from offering any testimony concerning potential employment for Claimant” beyond the information contained in the written reports which were timely exchanged. It follows, the respondents inherently stipulated that their failure to comply with permitted discovery was equivalent to “willful” conduct which would automatically warrant the sanction built into the discovery orders. To reach any other conclusion would sanction reversal of the order based on an error which the respondents by their own stipulation invited the ALJ to commit. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Therefore, we conclude the respondents waived the right to require the claimant to prove a “willful” violation.
Accordingly, the ALJ did not abuse her discretion by excluding the disputed evidence if the record supports her finding that the respondents failed to comply with the prior discovery orders. The respondents concede that Koon’s report was not provided to the claimant at least 10 days before the September 28 hearing, and Mauer’s Addendum report was not timely exchanged. (Tr. September 28, 2000, pp. 6, 10). The discovery orders do not create any exceptions to the consequence for failing to timely exchange written reports. Thus, we cannot say the ALJ erred in excluding the April 27 and September 21 reports.
Moreover, the ALJ reasonably inferred that the purpose of the discovery orders was to prevent the respondents from presenting expert vocational evidence without giving the claimant an opportunity to prepare a defense. (Tr. September 28, 2000, pp. 16-17, 23). The discovery order expressly precluded the respondents from presenting expert vocational testimony which had not been previously disclosed in a written report. Because the ALJ properly excluded Mauer’s Addendum report and Koons’ report, she did not err in precluding the respondents from presenting Koons’ expert testimony.
In any case, the ALJ has wide discretion to control the course of the hearing and make evidentiary rulings in accordance with the Colorado rules of evidence. Sections 8-43-210 and 8-43-207(1)(c) (h), C.R.S. 2000. CRE 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Cherry Creek School District #5 v. Voelker, 859 P.2d 805
(Colo. 1993).
Although Mauer’s October 1998 report was timely exchanged, the respondents did not reveal their intent to rely on the October report or Mauer’s notes of employment contacts until after the claimant presented the testimony of his vocational expert. In fact, the respondents’ attorney admitted he did not attempt to submit the October report at the prior hearing because the respondents were relying on Mauer’s Addendum report which was believed to be more current and complete. (Tr. October 5, 2000 p. 42). It was not until the Addendum was excluded that the respondents considered submitting the October report. Under these circumstances, the ALJ reasonably determined it was fundamentally unfair to admit the October report at a point in the hearing when the claimant had no opportunity to present expert rebuttal evidence. (Tr. October 5, 2000, p. 52). Indeed, if the ALJ had admitted the evidence, she would have been obligated to afford the claimant an opportunity to rebut it by deposition or at another hearing. Cf. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988) (ALJ may consider cost and inconvenience to a party if post-hearing proceedings are conducted for the purpose of admitting additional evidence).
The respondents arguments notwithstanding, our disposition is not inconsistent with Simmonds v. Action RV Inc., W.C. No. 4-142-922 (April 16, 1996), where we concluded that an ALJ erroneously excluded testimony from the insurer’s vocational expert on the issue of permanent total disability. Unlike, the facts presented here, there was no discovery order in Simmonds which required the insurer to disclose the opinions of the vocational expert in advance of the hearing. To the contrary, there was only evidence the claimant had “informally requested” disclosure of the expert’s labor market survey results. Consequently, Simmonds is factually distinguishable from the circumstances presented here.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 decision were mailed July 12, 2001 to the following parties:
Richard Wood, 1705 Keeler Ave., Pueblo, CO 81005-2217
Discovery Zone, Teresa Manshardt, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Denver, CO 80112
Teresa Manshardt, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Denver, CO 80112
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy