Opinion
W.C. No. 4-324-902
November 3, 2003
ORDER OF REMAND
The claimant seeks review of a supplemental order of Administrative Law Judge Klein (ALJ) which dismissed claims for temporary disability benefits, permanent total disability benefits, and penalties based on the claimant's failure to provide discovery. The claimant argues, inter alia, that the ALJ improperly disposed of the motion for dismissal without conducting a hearing. We set the order aside and remand for a hearing.
In November 2002 claimant filed an application for hearing seeking temporary total and temporary partial disability benefits, permanent total disability benefits, and penalties for failure to pay temporary disability benefits. On November 12, 2002 the respondents submitted interrogatories to the claimant. Insofar as pertinent these interrogatories requested the claimant to describe the evidence she would rely on to support her claims for temporary and permanent total disability benefits and penalties. The claimant submitted responses on December 11, 2002.
On February 18, 2003, a prehearing administrative law judge (PALJ) conducted a prehearing conference concerning the sufficiency of the claimant's responses to the interrogatories. The PALJ entered an order directing the claimant to provide "specific, detailed answers to interrogatories 2 through 5 and 12 through 14, and vacating a hearing scheduled for March 4, 2003. Apparently the claimant failed to comply with the order and a second prehearing conference was conducted on April 23, 2003. On April 24 the PALJ entered an order directing the claimant to comply with the February 18 discovery order within 15 days, vacating a hearing set for April 30, 2003, and striking the claimant's application for hearing.
By May 12, 2003, the claimant had not complied with the April 24 order to provide more complete answers to the interrogatories. Consequently, the respondents filed a Motion to Dismiss the claims for temporary disability benefits, permanent total disability benefits and penalties. The motion to dismiss was predicated on § 8-43-207(1)(e), C.R.S. 2003, and C.R.C.P. 37. The claimant did not respond to this motion and on May 28, 2003, the ALJ entered an order dismissing the claims. On July 25, 2003, the ALJ entered a supplemental order containing specific findings of fact and conclusions of law. The ALJ ruled that the claimant's conduct demonstrated a willful failure to comply with permitted discovery as shown by failure to comply with the orders of the PALJ. The ALJ also stated the claimant "ignored" the respondents' Motion to Dismiss.
On review, the claimant argues, inter alia, that the ALJ erred in dismissing the claims for relief without conducting a hearing concerning the respondents' Motion to Dismiss. The claimant reasons that dismissal of entire claims for relief is "substantive" and not subject to adjudication based on a written motion. Under the present circumstances, we agree.
As a general rule, hearings are required to determine "any controversy concerning any issue arising" under the Act. Section 8-43-207(1), C.R.S. 2003. This provision reflects the due process requirement that where an administrative adjudication turns on issues of fact the parties are entitled to a hearing at which they may present evidence in support of their positions, confront adverse evidence, and make arguments concerning their respective positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
The statute also grants an ALJ authority to "dispose of procedural requests upon written motion or on written briefs or oral arguments as determined appropriate." Section 8-43-207(1)(g), C.R.S. 2003. Consistent with this provision, Rule of Procedure VIII (D)(1), 7 Code Colo. Reg. 1101-3 at 24, concerning the filing of motions in workers' compensation cases, provides that a "motion for entry of a procedural order may be submitted with a separate, properly captioned, proposed order." (Emphasis added).
We have previously interpreted Rule VIII (D)(1) to mean that an ALJ is not to dispose of written motions requesting substantive relief without conducting a hearing. For example, in Wright v. U.S. Home Corp., W.C. No. 4-312-835 (September 14, 1998), we held that a motion to dismiss based on collateral estoppel could not be deemed confessed under Rule VIII (D)(2) by failure of the claimant to file a timely response. We stated that "a dismissal with prejudice based on statutory employer law and collateral estoppel constitutes a substantive ruling" which is not amenable to disposition without a hearing, and that the claimant's "failure to file a timely written response to the respondents' Motion to Dismiss Claim does not constitute a waiver of the claimant's right to a hearing." Similarly, in Sholund v. Argenbright Security, W.C. No. 4-415-403 (August 5, 2002), we held that a motion to close the claim for failure to prosecute could not be deemed confessed by the claimant's failure timely to respond to the motion. We stated that the motion to close "was substantive and not procedural since it sought to foreclose the claimant's entitlement to further benefits," and that in the circumstances "Rule VIII (D) is not applicable." See also, Burks v. Rainbo Bread, W.C. No. 4-121-222 (June 22, 1993).
Applying these principles here, we hold the ALJ erred in granting the respondents' motion to dismiss the claim without affording the claimant a hearing. It is true that dismissal of one or more claims for relief is a proper sanction for willful failure to make discovery. Section 8-43-207(1)(e), C.R.S. 2003; C.R.C.P. 37(b)(2)(C). However, when such relief is requested the moving party is seeking substantive relief exceeding the "procedural" scope of written motions practice authorized by § 8-43-207(1)(g) and Rule VIII (D)(1).
We do not consider the right to a hearing on a motion to dismiss claims for relief to be an idle procedural requirement. Even if the claimant's failure to respond to the discovery orders of the PALJ may be presumed "willful" under Rule VIII (E)(7), 7 Code Colo. Reg. 1101-3 at 27, the claimant might be able to present evidence to rebut this presumption. In any event, determination of the appropriate sanction is discretionary with the ALJ. Scheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Consequently, the claimant is entitled to present mitigating evidence which might reduce the sanctions to a lower level. See Lewis v. J.C. Penney Co., Inc., 841 P.2d 385 (Colo.App. 1992) (dismissal is the "the severest form of sanction" which should be entered only in "extreme cases").
As in Wright v. U.S. Home Corp., supra, the claimant's failure to respond to the respondents' motion to dismiss does not constitute a waiver of the right to a hearing. The rule permits an inference that a party has "confessed" a motion only if the motion requests "procedural" relief. Because the respondents' motion requested substantive relief, the claimant was not required to assume that failure to respond would result in dismissal of the claims without benefit of a hearing.
It is true, as the respondents argue, that some cases may be adjudicated without a hearing where the record demonstrates there are no disputed questions of fact and the issue is purely one of law. Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969); Holliday v. Industrial Claim Appeals Office, 997 P.2d 1212 (Colo.App. 1999), rev'd on other grounds, Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001). However, in this case the claimant's failure to respond to the motion to dismiss cannot be construed as an admission that there are no disputed issues of material fact, or that dismissal of the claims for relief is the appropriate sanction considering the entirety of the circumstances. Rather, the appropriate course was for the respondents or the ALJ to set the matter for a hearing to resolve the motion. In this regard, we note the respondents' Motion to Dismiss does not contain a certification that respondents' counsel conferred with or attempted to confer with claimant's counsel concerning whether or not the motion was "contested, uncontested, or stipulated." Rule of Procedure VIII (D)(3).
In light of our holding we need not reach the claimant's other arguments. Further, because we have determined the claimant's appeal was meritorious, we deny the respondents' request for the imposition of attorney fees.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated July 25, 2003, is set aside and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on November 3, 2003 by A. Hurtado.
Marilyn Hildebrandt Nash, 4620 W. 109th Pl., Westminster, CO 80030
Metro Temps, c/o Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209
Matt Chase, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)