Dudley v. Huizenga

• Decision Date: 16 July 2003
• Docket Number: No. 22487.,22487.
• Citation: 2003 SD 84,667 N.W.2d 644
• Court: South Dakota Supreme Court
• Parties: Bruce E. DUDLEY, Claimant and Appellant, v. James HUIZENGA, d/b/a Huizenga Trucking, Employer and Appellee, and Wausau Insurance Companies, Insurer and Appellee.

667 N.W.2d 644

2003 SD 84

Bruce E. DUDLEY, Claimant and Appellant, v. James HUIZENGA, d/b/a Huizenga Trucking, Employer and Appellee, and Wausau Insurance Companies, Insurer and Appellee.

No. 22487.

Supreme Court of South Dakota.

Considered on Briefs February 10, 2003.

Decided July 16, 2003.

Brian L. Radke, Sioux Falls, South Dakota, Attorney for claimant and appellant.

Eric C. Schulte of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellees.

KONENKAMP, Justice.

[¶ 1.] In this workers' compensation proceeding, the claimant's attorney missed a stipulated deadline for disclosing expert witnesses. He provided the disclosure eight weeks late. The Department of Labor granted the employer's motion to strike the claimant's experts, and, since the claimant had no case without expert evidence, the Department also granted summary judgment for the employer. Because our workers' compensation laws and administrative rules are remedial in nature and should be liberally construed to achieve their purposes, we conclude that it was an abuse of discretion not to impose a lesser sanction before striking the claimant's expert witnesses. We reverse and remand for further proceedings.

Background

[¶ 2.] On October 23, 1989, Bruce E. Dudley sustained a work-related injury in the course of his employment. As he drove a semi-truck on a highway near San Antonio, Texas, someone dropped a rock from a bridge when he passed underneath. The rock broke through the windshield and struck him on the left side of his face, fracturing several teeth and cutting his face. He brought a workers' compensation claim against his employer, Huizinga Trucking, and its insurance carrier, Wausau Insurance Companies. He sought permanent partial disability benefits for loss of use of his left eye and for post-traumatic headaches, nerve damage, and other head injuries. In an amended petition dated June 26, 1991, Dudley alleged permanent and total disability under SDCL 62-4-6(23) for loss of use of both eyes.

[¶ 3.] On March 12, 1992, the Department ruled that "[Dudley] is entitled to reimbursement for all dental bills associated with treatment of [his] teeth injured on October 23, 1989, and that [he] is entitled to permanent and total disability benefits for life under the provisions of SDCL 62-4-6(23) and SDCL 62-4-7." The employer appealed. The circuit court reversed the permanent disability award and remanded the claim to the Department with orders to develop a specific test "to determine the extent of [Dudley's] `loss of use of his eyes' and the extent of [his] disability...." On remand, the Department denied Dudley's petition in an order dated November 12, 1992, ruling in part that Dudley "failed to establish permanent total disability under the new test adopted by the Department."

[¶ 4.] Between April 1996 and June 2000, no activity occurred in Dudley's file. His former attorney withdrew in April 1996, and a new attorney, Brian L. Radke, began representing him sometime thereafter. Counsel for the employer asked Radke to submit a settlement demand in April 1997, but he did not respond. The employer moved to dismiss for failure to prosecute the case. The Department sent a letter directly to Dudley asking for his response, and Radke submitted materials opposing the motion. In an order dated August 29, 2000, the Department granted the motion, ruling that "all claims which remained open following the November 12, 1992 order, including, but not limited to, [Dudley's] request for Cozine benefits and for `certain of claimant's dental treatment,' are hereby dismissed with prejudice." As to Dudley's claim for permanent and total disability, the Department ruled that "in order to reopen the issue of permanent total disability, (odd-lot doctrine) based on a change in medical condition, in accordance with SDCL 62-7-33, [Dudley] must prove said medical condition changed at some time following the November 12, 1992 order."

[¶ 5.] In January 2001, Dudley petitioned to reopen under SDCL 62-7-33, alleging that he had experienced a substantial change in his condition because of his "need to see a psychologist on a weekly basis for seven years due to this condition." The parties agreed to a joint preliminary report, and the Department entered a prehearing order requiring both sides to abide by various scheduling and discovery deadlines. Concerning expert witnesses, the order stated:

(d) Any expert reports that have not already been exchanged will be exchanged as soon as possible. Claimant will submit his reports and opinions by May 15, 2001, and Employer/Insurer by July 15, 2001.

[¶ 6.] Although Dudley produced medical records on May 14, 2001, he failed to submit any expert reports or opinions by May 15, 2001. Thus, there was no expert opinion evidence of record to show that Dudley had experienced a substantial change in his psychological condition. Dudley now contends that there was no specific provision for the exchange of a list of expert witnesses in the prehearing order. Nonetheless, Dudley did disclose his vocational expert, Rick Ostrander, by May 15, 2001, though he did not provide Ostrander's report as required by the prehearing order.

[¶ 7.] On June 5, 2001, the employer's attorney contacted Dudley's counsel to schedule an independent medical exam for June 9, 2001. The employer's counsel explained that if the date was not feasible, the employer would need an extension of time to comply with the expert disclosure deadline imposed by the Department because the next available appointment would not be until sometime in August 2001. In response, Dudley's attorney sent a letter the next day, stating that he had been unable to contact Dudley. But the letter further advised that Dudley would "strongly oppose any amendment to the scheduling order." As a result, the employer moved for summary judgment.

[¶ 8.] On July 11, 2001, Dudley filed an amended list of expert witnesses, naming Douglas Anderson, Dr. Alan Knutson, Gene Hagedorn, Dudley's chiropractor, and Ostrander. In response, the employer moved to strike the claimant's designated experts on the ground that their names were not timely submitted. Dudley requested a hearing to address the matter. Without a hearing, the Department granted both the motion to strike and the motion for summary judgment. Then the case again came to circuit court.

[¶ 9.] While Dudley appealed the Department's summary judgment of September 2001, the employer submitted a notice of review challenging the wording of the Department's order of a year earlier that dismissed Dudley's prior petition for failure to prosecute. The circuit court affirmed the summary judgment, but reversed the Department's prior order to the extent that it permitted the reopening of a permanent total disability claim based on a change in condition after the November 12, 1992 order. The court ruled that the issues did not achieve finality until the Department's August 29, 2000 order of dismissal.

[¶ 10.] Dudley now appeals on the following questions: (1) "Whether the Department of Labor erred when it determined there was a deadline for naming expert witnesses." (2) "Whether the Department of Labor erred when it imposed the sanction of not allowing Dudley to present the medical records of his treating practitioners." (3) "Whether the circuit court erred when it reversed the Department of Labor's ruling that allowed Dudley to reopen the issue of permanent total disability (odd-lot doctrine) if he proved he experienced a change in medical condition some time after the Department's November 12, 1992 order." We deem Issue 1 to be without merit and therefore decline to address it.

A. Dismissal as Sanction for Untimely Disclosure

[¶ 11.] Dudley's attorney failed to comply with a prehearing order mandating the timely disclosure of his expert witnesses and their opinions. As a sanction, the ALJ struck the witnesses and granted summary judgment. See SDCL 15-6-37(b)(2)(B). This was the most drastic action available. See SDCL 15-6-37(b)(2)(C). Discovery rules are designed "to compel the production of evidence and to promote, rather than stifle, the truth finding process." Magbuhat v. Kovarik, 382 N.W.2d 43, 45 (S.D.1986) (citing Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316 (S.D.1979)). The purpose of workers' compensation is to provide for employees who have lost their ability to earn because of an employment-related accident, casualty, or disease. Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶ 19, 653 N.W.2d 247, 252 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 8, 575 N.W.2d 225, 229).

[¶ 12.] The Department's administrative rules contain two provisions on sanctions for a party's noncompliance in discovery. The first rule, ARSD 47:03:01:16, provides:

If a party or the party's attorney fails to obey a scheduling or prehearing order, if no appearance is made on behalf of the party at a scheduling or prehearing conference, or if a party or the party's attorney fails to participate in good faith, the Division of Labor and Management, upon motion or its own initiative, may make such orders with regard thereto that it considers just.

The second rule, ARSD 47:03:01:05.02, provides:

If any party fails to comply with the provisions of this chapter, the Division of Labor and Management may impose sanctions upon such party pursuant to SDCL 15-6-37(b). However, attorney fees may be imposed only for a violation of a discovery order.¹

As with statutes, administrative rules are construed together to make them harmonious and workable. Nelson v. State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991). We review an ALJ's decision to invoke sanctions under an abuse of discretion standard. Chittenden & Eastman Co.,286 N.W.2d at 316. Under SDCL 15-6-37(b), administrative sanctions must be "just." See FRCP 37(b); see also Shelton v. American Motors Corp., 805 F.2d 1323, 1329-30 (8thCir.1986)

(citing Insurance Corp. of Ireland...