Opinion
W.C. No. 4-536-930.
September 17, 2003.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which assessed penalties for the respondents' violation of the Rules of Procedure, Part VIII(E)(2)(b), 7 Code Colo. Reg. 1101-3 at 27, and § 8-43-207(1)(e), C.R.S. 2002. We set aside the order, and remand for the entry of a new order.
In March 2002 the claimant suffered a compensable knee injury. The claimant was examined by several physicians including Dr. Worwag.
The ALJ found the respondents' attorney unilaterally scheduled Dr. Worwag's deposition without filing a motion to secure an order granting permission for the deposition. Therefore, the ALJ determined the respondents' violated Rule VIII(E)(2)(b) and § 8-43-207(1)(e). In so doing, the ALJ rejected the respondents' contention that Dr. Worwag's deposition was "evidentiary" and unlike "discovery" depositions was not subject to the requirements of Rule VIII(E)(2)(b) and § 8-43-207(1)(e). The ALJ then imposed a penalty of $500.
I.
On review the respondents first contend ALJ erroneously found the violation of a statute or rule. We disagree.
Section 8-43-304(1), C.R.S. 2002, allows ALJs to impose penalties up to $500 per day against any employer or insurer who violates a provision of the Workers' Compensation Act (Act), or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel. The court has held that the failure to comply with the Rules of Procedure is a failure to perform a "duty lawfully enjoined" within the meaning of § 8-43-304(1). See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996).
The imposition of penalties under § 8-43-304(1) requires a two-step analysis. The ALJ must first determine whether the disputed conduct violated a provision of the Workers' Compensation Act or a procedural rule. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If the ALJ finds a violation, the ALJ also must determine whether the violator's actions were objectively reasonable. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). The reasonableness of the violator's actions depends upon whether the actions were predicated on a rational argument based in law or fact. Jiminez v. Industrial Claim Appeals Office, ___ P.3d. ___ (Colo.App. No. 02CA2283, September 11, 2003) ; Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997).
Contrary to the respondents' contention, an "evidentiary deposition" may not be substituted for live testimony in a workers' compensation claim except upon a showing of good cause. Section 8-43-210 C.R.S. 2002. See also Rules of Procedure, Part VIII(I)(2), at 30 (an evidentiary deposition may be filed at the formal hearing). Thus, we reject the respondents' contention that the claimant's procedural rights were no different than if the respondents had subpoenaed Dr. Worwag to provide live testimony at the hearing.
Further, depositions are a form of discovery permitted by Rule of Procedure VIII(E). Rule VIII(E)(2)(b) provides that depositions of a non-party witness require a "written motion, order and written notice to all parties." Similarly, § 8-43-207(1)(e), states that an ALJ may:
"Upon written motion and for good cause shown, permit parties to engage in discovery; except that permission need not be sought if each party is represented by an attorney and the parties agree to engage in discovery."
Rule VIII(E)(4) states that "Discovery" other than "evidentiary depositions" shall be completed at least 20 days before the hearing. Because Rule VIII(E)(4) classifies "evidentiary" depositions as a form of "discovery," and § 8-43-207 does not differentiate between discovery depositions and evidentiary depositions we held in Johnson-Reynolds v. Virtual Industries Inc., W.C. No. 4-266-253 (July 23, 1999), that there is no appreciable distinction between a discovery deposition and an evidentiary deposition. Further, the alleged distinction between a "discovery deposition" and an "evidentiary deposition" makes little practical sense because upon a simple showing of good cause, a discovery deposition may be converted to an evidentiary deposition. See § 8-43-210.
The respondents' arguments concerning factual distinctions between this claim and Johnson-Reynolds do not persuade us to depart from our conclusions in Johnson-Reynolds. Therefore, we reject the respondents' contention that unlike a "discovery deposition," an "evidentiary deposition" may be taken without securing an order allowing permission to take the deposition.
Moreover, because Rule VIII(E)(4) treats all depositions whether labeled "discovery" or "evidentiary" as a form of discovery, we conclude that the Director of the Division of Workers' Compensation (Director) views all depositions as "discovery" for purposes of § 8-43-207(1)(e). Because the Director is the administrative official charged with the enforcement of the Act we defer to this plausible interpretation of the law. See Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003)
Here, it is undisputed the respondents scheduled the deposition of Dr. Worwag to substitute for Dr. Worwag's live testimony at a time when the claimant was not represented by an attorney. Thus, § 8-43-207(1)(e) did not authorize the taking of the deposition without "permission" for good cause shown. Consequently, the facts support the ALJ's determination the respondents violated Rule VIII(E)(2)(b) and § 8-43-207(1)(e).
The respondents' further arguments on this issue have been considered and do not alter our conclusions. Section 8-43-207(1)(e) expressly contemplates that a pro se litigant will obtain the benefit of review by the Director or an ALJ before evidence is taken by deposition. This statute evidences a recognition that, in the absence of an ALJ, represented parties may acquire an exceptional advantage over pro se litigants when examining or cross- examining a witness. Accordingly, we disagree with the respondents' contention that the ALJ created a right for pro se litigants that does not exist by statute.
II.
The respondents' Petition to Review also contends their interpretation of the controlling statute and rule was reasonable and predicated on a rational argument based upon law and facts.
We recognize that the respondents' Brief in Support of the Petition to Review does not explicitly argue that the actions of their attorney were objectively reasonable. However, there is no rule or statute which requires the filing of a brief and the failure to brief a particular issue does not constitute a waiver or abandonment of the issue. Jiminez v. Industrial Claim Appeals Office, supra, slip opinion p. 5.
Moreover, inherent in the respondents' contention that there was no violation is an assertion that their actions were reasonable. Consequently, we conclude the respondents' argument was preserved for review.
The ALJ's order does not contain any specific findings of fact concerning whether the claimant proved the actions of the respondents' attorney in scheduling the unilateral deposition of Dr. Worwag were objectively reasonable. Furthermore, we conclude that, based on this record, reasonable minds could reach different results on the issue of whether the violator's actions were predicated on a rational argument based in law or fact. Under these circumstances, the ALJ's findings of fact are insufficient to permit appellate review of whether the ALJ erroneously imposed a penalty for the violation of Rule VIII(E)(2)(b) and § 8-43-207(1)(e), C.R.S. 2002. Consequently, we remand the matter to the ALJ for additional findings and the entry of a new order concerning the respondents' liability for penalties.
IT IS THEREFORE ORDERED that the ALJ's order dated March 24, 2003, is set aside and the matter is remanded to the ALJ for additional findings and the entry of a new consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed September 17, 2003 to the following parties:
Mary G. Thomson, P. O. Box 1092, Meeker, CO 81641
Patty Merriam, Pioneers Hospital of Rio Blanco County, 345 Cleveland, Meeker, CO 81641
Colorado Hospital Association Trust, c/o Mary Ann Donnelson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Clyde E. Hook, Esq. and Tiffany L. Scully, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Hurtado