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Shafer Commercial Seating, Inc. v. ICAO, 02CA2567 (December 31, 2003): Claimant filed an application for hearing on the issues of compensability and permanent total disability (PTD) benefits in December 2001. Claimant also directed interrogatories to employer. Employer did not respond to claimant's discovery requests, and claimant filed a motion to compel. A prehearing administrative law judge (PALJ) granted claimant's motion, and ordered employer to "fully and completely respond" to claimant's interrogatories within five days. Claimant timely received only partial responses to the interrogatories, so she moved for sanctions and entry of default judgment against employer. In the meantime, employer filed a motion to add a co-employee as a witness to address the compensability of the claim. The PALJ granted the motion to add the witness but ruled that she did not have jurisdiction to
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decide claimant's motion for sanctions.
Ultimately, an administrative law judge (ALJ) held that employer had not completely complied with the order to compel, granted claimant's motion for sanctions, ordered that employer's witnesses and affirmative defenses be struck, and precluded employer from introducing into evidence any document that had not been exchanged with claimant at least twenty days before the hearing. Only claimant testified at the hearing. The ALJ determined that claimant sustained a compensable injury and award-ed PTD benefits.
The court of appeals affirmed. The court held that an ALJ's decision to impose sanctions will not be overturned unless there was an abuse of discretion, or if the decision was manifestly arbitrary, unreasonable or unfair. The court rejected employer's argument that the ALJ erred by failing to specifically find that employer's
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discovery violation was willful. Under Workers' Compensation Rule of Procedure VIII(E)(7), once an order to compel has been properly served, failure to comply with the order is presumed willful. Because the record supported the ALJ's finding that employer had not fully complied with the order compelling discovery, the violation was willful and the sanction of witness preclusion was appropriate under C.R.S. § 8-43-207(1)(e).
The court also was not persuaded by employer's argument that it had substantially complied with the order to compel because it supplied the requested information only two or three days after the deadline. The court indicated that employer's late "compliance" may explain why the ALJ decided not to impose a more severe sanction such as a default judgment.
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Low wage claim, high attorney fees
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