Opinion
W.C. No. 4-691-205.
May 7, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated December 6, 2007 that dismissed his claim with prejudice. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant alleged he sustained an injury on June 13, 2006. The respondents denied the claim. The respondents were given permission to engage in discovery pursuant to an October 2006 prehearing order. The respondents attempted to engage in discovery. A Prehearing Administrative Law Judge (PALJ), in a January 30, 2007 order, directed the claimant to respond to the interrogatories that had been sent to him. Notwithstanding the PALJ's order to provide discovery and numerous reminders of outstanding discovery, the claimant did not respond to the respondents' interrogatories. The claimant willfully failed to comply with discovery orders. The respondents filed a motion to dismiss the claimant's claim with prejudice, which was granted by a PALJ in an order dated April 6, 2007. The claimant filed an application for hearing requesting review of or to set aside the PALJ's order, which had dismissed his claim.
The ALJ concluded that the PALJ did not have the statutory authority to enter an order that could be construed as final except in the case of settlements. Therefore, the ALJ construed the PALJ's April 6, 2007 dismissal order as interlocutory and subject to review. The ALJ reviewed the matter and determined that dismissal of the claim was an appropriate sanction because of the claimant's repeated and willful failure for months to respond to discovery requests or comply with discovery orders.
I.
On appeal, the claimant contends that he was denied due process of law. The claimant argues that he received inadequate notice that the ALJ would first consider the PALJ's order to be interlocutory, and then go forward and enter his own order dismissing the claim. We do not agree that the ALJ denied the claimant due process of law.
At the inception of the hearing, the claimant identified the issue before the ALJ to be a review of the PALJ's order or, in the alternative, setting aside the order. The respondents at the inception of the hearing stated that if the PALJ's order was set aside they would again request dismissal of the claim for failure to comply with discovery orders. Tr. at 4-5. The claimant disagreed and stated that the only issue was a review of the PALJ's order. Tr. at 5. The ALJ in his review of the PALJ's order concluded that the dismissal of the claim was an appropriate sanction because the claimant repeatedly and willfully failed to respond to discovery requests or comply with the discovery orders. The ALJ then dismissed the claimant's claim with prejudice.
It is well established that a party has the right to procedural due process, which generally requires that the party be provided with notice and an opportunity to be heard. Avalanche Industries, Inc. v. Industrial Claim Appeals Office, 166 P.3d 147 (Colo.App. 2007), cert. granted, No. 07SC255 (Aug. 27, 2007); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Due process also requires that a party have advance notice of the issues to be adjudicated at the hearing. Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987). Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d at 1077.
In our view, the claimant's due process rights were not infringed upon by proceeding to hearing on the issue of whether his claim should be dismissed for discovery violations. The record discloses that he was not prejudiced by lack of notice that the respondents intended to seek dismissal of the claim as a sanction for willful failure to comply with discovery. The respondents listed as an issue "dismissal of claim is a proper sanction for willful failure to comply with discovery" in both their Case Information Sheet and their response to the claimant's application for hearing. The question of whether the claim should be dismissed for failure to comply with discovery requests and discovery orders had clearly been raised by the respondents.
Further, the respondents had filed a motion to dismiss claim with prejudice for discovery violations in March 2007. Exhibit J. The PALJ had entered an order in April 2007 granting the motion. Exhibit K. This is not a case where the claimant was effectively denied the opportunity to be heard on the central issue, which was the dismissal of his claim for failure to comply with discovery requests and discovery orders. We are not persuaded that the claimant was denied due process of law.
II.
The claimant also argues that the ALJ committed a procedural error because after the PALJ had dismissed his case the respondents request for dismissal of the case again was not ripe for hearing. The claimant argues that his case must be first reinstated before it could be dismissed by the ALJ. We perceive no error on the ALJ's consideration of the respondents' request for dismissal of the claim.
The present case has certain procedural similarities to those occurring in Szot v. U.S. Security Associates, Inc., W.C. No. 4-714-229 (October 02, 2007). The ALJ cited Szot in his order. In Szot, a PALJ issued an order granting the respondents' motion to dismiss with prejudice the claimant's claim for failure to comply with discovery orders. We expressed the opinion in Szot that because a PALJ's discovery orders were interlocutory; the ALJ retains jurisdiction to review the interlocutory rulings of a PALJ. See also Kennedy v. AAA Concrete, W. C. No. 4-506-797 (September 12, 2003), aff'd, Kennedy v. Industrial Claim Appeals Office, 100 P.3d 949 (Colo.App. 2004). Here, the ALJ construed the PALJ's April 6, 2007 dismissal order as interlocutory and subject to review. The ALJ reviewed the matter and determined that dismissal of the claim was appropriate. We are unpersuaded that the ALJ committed any procedural error.
III.
The claimant next contends that the discovery rules do not apply in this case because there was no hearing pending on the date that the PALJ dismissed his claim. The claimant argues that when the claimant has evidence necessary to prove the case he will provide it to the respondents, but until such time the respondents have no right to review his records. The claimant argues that the discovery rules apply only when there is a request for a hearing, but when there is no controversy there is no right to discovery.
The claimant has not cited any authority in support of these propositions and we are not aware of any. To the contrary § 8-43-207.5 (1) C.R.S. 2007 provides that the filing of an application for hearing with the Office of Administrative Courts shall not be a prerequisite to a request for a prehearing conference. Further, discovery is listed as one of the issues which can be addressed at a prehearing conference. Section 8-43-207.5 (1). We perceive no error in the ALJ's or the PALJ's reliance on the workers' compensation rules of procedure that relate to discovery.
Here, the claimant filed a claim and the respondents filed a Notice of Contest on August 7, 2006. At the hearing held over a year later on November 14, 2007 the ALJ found that the claimant had made no effort to comply with the orders entered on discovery. Instead, he merely argued that the evidence did not indicate what the claimant's state of mind was and so his actions could not be found willful. Section 8-43-207(1)(e), C.R.S. 2007, provides the ALJ may "impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery." Thus, the ALJ may impose any of the various sanctions including dismissal. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Where there is a willful violation, the ALJ ordinarily has discretion in deciding which sanction is appropriate. Consequently, we may not interfere with the ALJ's decision unless an abuse of discretion is shown. Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). We perceive no abuse of the ALJ's discretion in dismissing the claim with prejudice.
IT IS THEREFORE ORDERED that the ALJ's order issued December 6, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
BEN RENCORET-RODRIGUEZ, 2922 WESTWOOD BLVD, COLORADO SPRINGS, CO, (Claimant).
THE CHEMINS CO., INC., Attn: MS DOROTHY COULTER, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
ALEXANDER RICCI, PC, Attn: WILLIAM A ALEXANDER JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).