SHAFER COMMERCIAL SEATING v. INDUST. CLAIM, 02CA2567.

• Decision Date: 31 December 2003
• Docket Number: No. 02CA2567.,02CA2567.
• Parties: SHAFER COMMERCIAL SEATING, INC. and Wausau Insurance Companies, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Jose Cortez, Respondents.
• Court: Colorado Court of Appeals

85 P.3d 619

SHAFER COMMERCIAL SEATING, INC. and Wausau Insurance Companies, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Jose Cortez, Respondents.

No. 02CA2567.

Colorado Court of Appeals, Div. III.

December 31, 2003.

Certiorari Denied March 15, 2004.

Law Office of Jonathan S. Robbins, Douglas W. Poling, Denver, Colorado, for Petitioners.

No Appearance for Respondent Industrial Claim Appeals Office.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Pepe J. Mendez & Associates, P.C., Pepe J. Mendez, Abel Alvarado, Denver, Colorado, for Respondent Jose Cortez.

Opinion by Judge NIETO.

Shafer Commercial Seating, Inc., and its insurer, Wausau Insurance Companies (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that Jose Cortez (claimant) sustained a compensable injury and awarding permanent total disability benefits. We affirm.

Claimant directed interrogatories to employer in December 2001. Employer did not respond, and claimant filed a motion to compel. A prehearing administrative law judge (PALJ) granted claimant's motion to compel discovery, ordering employer to "fully and completely respond to claimant's interrogatories without delay" no later than five days after receipt of the order. Although claimant received partial responses to the discovery by March 18, 2002, claimant sought an order for sanctions against employer and for entry of a default judgment. In the meantime, employer filed a motion on March 14, 2002, to add a coemployee as a witness to address the compensability of the claim, asserting that it had just discovered the existence of that witness. That motion was granted by the PALJ at a prehearing conference on April 2, 2002, and employer was also required to provide certain other discovery within five days of receipt of the order. The PALJ ruled that she did not have jurisdiction to decide claimant's motion for sanctions.

On April 9, 2002, the administrative law judge (ALJ) granted claimant's previously filed motion for sanctions. She ordered that employer's witnesses and affirmative defenses were struck and that employer was precluded from introducing any document that had not been exchanged at least twenty days prior to the hearing scheduled for April 25, 2002.

At the hearing, employer requested that the ALJ reconsider the order precluding the presentation of witnesses. After considering the arguments of counsel and reviewing the file, the ALJ found that employer had not completely complied with the order to compel and declined to reconsider the order for sanctions. Therefore, employer was precluded from presenting the testimony of the coworker and safety manager. Only claimant testified at the hearing.

I.

Initially, we reject employer's assertion that a de novo standard of review applies.

The decision to impose a sanction will not be overturned unless such decision was an abuse of discretion, or manifestly arbitrary, unreasonable, or unfair. Nagy v. Dist. Court, 762 P.2d 158 (Colo.1988); see also Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App.1991)

.

II.

Employer asserts that the ALJ erred in imposing discovery sanctions because she failed to find specifically that any discovery violation was willful. We disagree.

The purposes of discovery and pretrial procedural rules include the production of relevant evidence, the simplification of issues, the elimination of surprise, and the encouragement of fair and just settlements. See J.P. v. Dist. Court, 873 P.2d 745 (Colo. 1994)

.

Section 8-43-207(1)(e), C.R.S.2003, provides: "The director or administrative law judge may rule on discovery matters and impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery."

Whether to impose sanctions and the nature of the sanctions to be imposed are matters within the fact finder's discretion. The fact finder is given flexibility in choosing the appropriate sanction and should exercise informed discretion in imposing a sanction that is commensurate with the seriousness of the disobedient party's conduct. Nagy v. Dist. Court, supra.

The term "willful" has been defined under the Workers' Compensation Act to mean acting with deliberate intent. Miller v. Indus. Claim Appeals Office, 49 P.3d 334 (Colo.App.2001). Further, Dep't of Labor & Employment Rule VIII(E)(7), 7 Code Colo. Regs. 1101-3, provides that "[o]nce an order to compel has been issued and properly served upon the parties, failure to comply with the order to compel shall be presumed willful."

Finally, the ALJ is not held to a crystalline standard of findings. See Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App.2000)

. Thus, the ALJ is presumed to have considered the relevant legal principles, including the requirement of...