In the Matter of Claim of Schuster v. High Country Transportation

Decision Date07 October 2005
Docket NumberW.C. No. 4-431-875.
CourtConnecticut Supreme Court

The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) that denied the claimant permanent total disability (PTD) benefits and granted to the respondents an offset of the settlement proceeds from a third-party action. The claimant contends that the ALJ abused her discretion in not imposing discovery sanctions, that she erred in determining that the claimant was not permanently and totally disabled, and that she erred in permitting the respondents to offset the settlement proceeds. We affirm.

The ALJ found that the claimant sustained injuries in a compensable accident on August 26, 1999, when the truck in which she was riding was struck by another vehicle. She received medical treatment and reached maximum medical improvement (MMI) on January 15, 2004. The respondents filed a Final Admission of Liability (FAL) admitting for the 24 percent impairment rating assigned by David Silva, M.D., an authorized treating physician. The claimant obtained a Division independent medical examination (DIME), which was performed by Ellen Price, D.O. and which reported that the claimant sustained permanent impairment of 26 percent of the whole person.

The ALJ also entered factual findings concerning the claimant's education and prior experience, which included a short period at a junior college, bartending school, and training at an airline's "ticketing school." Her work experience included typing, flagging on the highway, commercial driving, and computer work for an airline. The ALJ also entered factual findings concerning the claimant's treatment, her restrictions, and the results of various diagnostic and other testing, such as functional capacity examinations.

The claimant was evaluated by two vocational rehabilitation experts, Ronald Brennan (Brennan) and Meg Turner Elder (Elder). The ALJ expressly rejected as unpersuasive the opinions of Brennan and credited those of Turner-Elder. The latter testified that there were several job positions that the claimant could perform within her commutable labor market, and she stated her opinion that the claimant retained the ability to earn wages.

The ALJ also found that the claimant filed a civil suit against the individual that allegedly caused the motor vehicle accident in which she was injured. The claimant settled that suit and received $20,000 after payment of costs, fees and other expenses, which the respondents sought to offset against their liability for workers' compensation benefits.

Based upon her factual findings, the ALJ concluded that the claimant had failed to prove that she was permanently and totally disabled, and therefore denied an award of those benefits. The ALJ also authorized the respondents to offset the entire amount of the third party settlement against workers' compensation benefits owed to the claimant.


The claimant first contends that the ALJ erred in denying her claim for an award of permanent total disability benefits. The claimant argues that the ALJ abused her discretion in refusing to impose discovery sanctions, that she erred in permitting the respondents' vocational rehabilitation expert to testify to the contents of her report, and that she erred in crediting certain testimony and in drawing inferences from it. We are unpersuaded that the ALJ erred.

A hearing was held on September 23, 2004, at the commencement of which the claimant's attorney moved for discovery sanctions on account of the failure of the respondents to provide timely answers to interrogatories. Tr.(Sept. 23, 2004) p.20. Specifically, the clamant requested that the testimony of the respondents' vocational rehabilitation expert be excluded. The basis for the motion was the late production of information from the expert concerning her opinions about the employability of the claimant. The respondents' counsel responded to the motion by stating that they had produced materials from their expert "as soon as they were prepared by Ms. Elder...." Tr.(Sept. 23, 2004) p.22. The respondents also noted that discovery sanctions were only permissible where the failure to satisfy discovery obligations was willful, and he moved in turn that the testimony of the claimant's expert be excluded for similar discovery violations. Tr.(Sept. 23, 2004) p.22-23. In response to a question from the ALJ, the claimant's attorney conceded that she had not sought an order compelling discovery responses and the ALJ denied both motions. Tr.(Sept. 23, 2004) p.24-25. In doing so the ALJ commented that she would not exclude testimony where the parties had not sought an order compelling discovery. Tr.(Sept. 23, 2004) p.25.

Section 8-43-207(1)(e), C.R.S. 2005 permits the ALJ to impose the sanctions provided in the rules of civil procedure for "willful failure to comply with permitted discovery." Exclusion of testimony is a possible sanction for failure to obey an order compelling discovery. C.R.C.P. 37(b)(2). In general, a discovery violation is "willful" if it is intentional, deliberate or manifests a flagrant disregard of discovery obligations. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo. App. 2000). The ALJ has broad discretion in determining whether a violation has occurred and, if so, what sanction is appropriate. Shafer Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003). Because the ALJ has broad discretion in resolving these matters, we may only set her order aside if that discretion is abused. An abuse of discretion is only shown where the order is beyond the bounds of reason, such as where it is contrary to the law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo. App. 2001).

Here, we perceive no abuse of discretion in the ALJ's refusal to exclude the testimony of the respondents' vocational rehabilitation expert. As we read the record, the ALJ implicitly found that if a discovery violation occurred, it was not willful. This determination is supported by the respondents' representation that they provided the information as soon as it was received. Moreover, the claimant's attorney specifically stated to the ALJ that she did not wish the hearing to be continued in order to permit the respondents to provide further information. Tr.(Sept. 23, 2004) p.17. Additionally, she was given the opportunity at the close of the hearing to present evidence to rebut the testimony of the respondents' expert, and she did present such evidence at a subsequent hearing. Under these circumstances, we are unable to conclude that the ALJ abused her discretion in refusing to impose discovery sanctions.

The claimant also argues that the ALJ's findings of fact do not support the conclusion that she is permanently and totally disabled. Specifically, the claimant contests specific factual findings entered by the ALJ, such as that the claimant is able to drive a certain distance, or sit for a certain period of time, or perform certain household chores. The thrust of the claimant's argument is that the ALJ entered broad general findings regarding issues such as the claimant's ability to perform certain tasks, but that when the evidence is examined closely those findings have no support. We disagree that the ALJ erred in this respect. Because her dispositive findings of fact are supported by the record and support the legal conclusion that the claimant is able to earn wages, her order may not be disturbed.

Section 8-40-201(16.5)(a), C.R.S. 2004, defines PTD as the claimant's inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558.

Because the issue of PTD is factual, we must uphold the ALJ's resolution if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005. This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Bymer v. Weld County School District RE-12, supra; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). The existence of other evidence, such as the opinions of the claimant's vocational expert which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. IndustrialCommission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. (Conclusions of Law at 5, ¶3); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). To the extent that a witness's testimony was inconsistent the ALJ was free to rely on those portions she found persuasive and to reject other...

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