Gonzales v. University of Colorado Health, W.C Nos. 4-865-972 & 4-851-350 (ICAO, June 12, 2014).
The Industrial Claim Appeal Office ruled that a workers compensation claim can be dismissed with prejudice if the claimant does not comply with an order compelling discovery. In the Gonzales case, claimant’s counsel appears to have simply ignored a prehearing administrative law judge’s order, issued on October 24, 2013, compelling the claimant to provide discovery responses and signed authorizations within 10 days. After the releases and responses were not forthcoming, respondents filed a motion to dismiss with prejudice, which was granted by an ALJ on January 17, 2014. In the order, the administrative law judge found that the claimant had ignored the procedural rules requiring the return of signed releases and that the claimant failed to answer interrogatories. He further found that the Respondents were highly prejudiced by the claimant’s failure to comply.
The claimant argued on appeal that her due process rights had been violated, contending that the Workers Compensation Act precludes such a dismissal without a hearing. The ICAO disagreed and stated that the Workers Compensation Rules of Procedure provides in Rule 9-1(E) that the failure to comply with the provisions on discovery can result in a party being subject to sanctions pursuant to statute and rule. Regarding statutes, §8-43-20791)(e) C.R.S. allows an ALJ to impose the sanctions provided in the Colorado Rules of Civil Procedure for “willful failure to comply with permitted discovery,” in a workers compensation matter. These sanctions, outlined in Rule 37 C.R.C.P, include dismissal of an action with prejudice. Rule 9-1(G), W.C.R.P. provides that the failure to comply with an order to compel shall be presumed willful. Thus, a hearing to determine the willfulness of the claimant’s failure to comply was not needed.
Although the record was not sited in the opinion, the ALJ found with support from the record that claimant had no intention of complying with discovery requests or providing releases that had been with claimant’s counsel for over six months. A hearing in the underlying case had been set for February 6, 2014, which was only a few weeks after the dismissal order was issued. The ALJ ruled that the respondents had been highly prejudiced in that they were not able to identify potential witnesses or obtain other evidence necessary to defend against the claims which would be asserted at the fast-approaching hearing.
The ICAO also ruled that the ALJ’s acceptance of a proposed order from the respondents was not an abdication of his quasi-judicial discretionary authority. It stated that this was routinely done and that in this case the ALJ did make changes in the proposed order prior to it being issued. But regardless of this, the issuing of such a proposed order indicates that the ALJ examined the proposed order and agreed that it correctly stated the facts as the ALJ saw them.
The claimant’s actions or lack thereof in complying with discovery requests and a motion to compel may be seen as extreme compared to other discovery issues. Thus, the dismissal with prejudice, which is the harshest sanction, was granted in this case, but may not be applied in other less blatant violations. Still, workers compensation practitioners should be aware that the full panoply of sanctions for discovery violations found in the Colorado Rules of Civil Procedure are available for use by an ALJ in a workers compensation matter including dismissal of a claim with prejudice or the establishment of facts in favor of the moving party.