Opinion
W.C. No. 4-723-603.
August 28, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ Mottram) dated March 31, 2009, that denied the respondents' request for an offset for a safety rule violation. We affirm.
On May 11, 2007, the claimant sustained an admitted industrial injury when he fell while attempting to change ropes on a dragline. In an order dated May 19, 2008 ALJ Cannici denied the claimant's claim for temporary total disability benefits because the claimant was responsible for the termination of his employment. In his order, ALJ Cannici also found that the claimant was not wearing a safety harness at the time of his fall, which was a violation of a safety rule adopted by the employer. The matter was later heard before ALJ Mottram on the issue of whether the claimant's injury was caused by the claimant's "willful" safety rule violation pursuant to § 8-42-112(1)(b), C.R.S. 2009. ALJ Mottram found that although the claimant violated a reasonable safety rule it was not willful for the purposes of the Colorado Workers' Compensation Act. ALJ Mottram denied the offset for violation of a safety rule. The respondents bring this appeal.
I.
The respondents first contend that the previous ruling of ALJ Cannici on the issue of safety rule violation precluded ALJ Mottram from ruling on the same issue. We are not persuaded that ALJ Mottram violated the doctrine of issue preclusion.
Issue preclusion and claim preclusion apply to administrative proceedings, including workers' compensation claims. Feeley v. Industrial Claim Appeals Office 195 P.3d 1154 (Colo. App. 2008). In Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001) the court determined that issue preclusion bars relitigation of an issue if:
(1) the issue sought to be precluded is identical to an issue actually determined in the prior proceeding;
(2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding;
(3) there is a final judgment on the merits in the prior proceeding; and
(4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
Here there appears to be no dispute that the parties are the same here as in the prior proceeding and that there was a full and fair opportunity to litigate the issue of safety rule violation. Therefore, the only remaining disputed elements of issue preclusion are whether the identical issue of safety rule violation was determined in the prior proceeding and whether there was a final judgment on the merits. In our opinion, neither of the two disputed issues preclusion elements are present here.
In the May 19, 2008 order ALJ Cannici, found that the claimant suffered an admitted industrial injury on May 11, 2007, while not wearing a safety harness that was mandated by the employer. ALJ Cannici further found that the claimant's failure to wear a safety harness constituted a safety rule violation. However, ALJ Cannici denied the claimant's claim for temporary total disability benefits on the ground that the claimant was responsible for the termination of his employment. ALJ Cannici determined that the claimant was discharged for his dishonesty during the safety inspection and for failing to fulfill his commitment to the employer's safety procedures and policies. ALJ Cannici found that the reason for his discharge was not the claimant's safety rule violation in connection with his industrial injury. Rather, it was because he was "untruthful" during the safety inspection and thereby failed to demonstrate his compliance with the employer's efforts to insure a safe workplace. The claimant appealed ALJ Cannici's order and sought from us a declaration or advisory opinion that the issue of safety rule violation was not finally decided by the order. Because the order with regard to that issue was not final we dismissed the petition to review without prejudice.
Section 8-42-112(1)(b), C.R.S. 2009, permits a fifty percent reduction in compensation when an injury "results from the employee's willful failure to obey any reasonable safety rule adopted by the employer for the safety of the employee." In order to impose the reduction of compensation it is not enough for the employer to demonstrate that the claimant failed to obey safety rule. Johnson v. Denver Tramway Corp. 115 Colo. 214, 171 P.2d 410 (1946). It is also necessary to show that there was a "willful" violation of the rule. City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990).
We agree with ALJ Mottram that ALJ Cannici did not determine in connection the claimant's violation of the employer's safety rule whether the actions of the claimant were willful. Further, ALJ Cannici specifically noted in his order that all issues not resolved in the order were reserved for future determination. In our view, the issue before ALJ Mottram was not identical to the issue actually decided by ALJ Cannici. The issue before ALJ Mottram was whether to impose a fifty percent reduction in compensation when an injury results from the employee's willful failure to obey any reasonable safety rule adopted by the employer for the safety of the employee. In contrast, the issue actually decided by ALJ Cannici was entitlement to temporary disability benefits, which was resolved against the claimant based on his responsibility for his termination from employment. Consequently, ALJ Cannici did not determine whether to impose a reduction in temporary disability benefits based on a willful violation of a safety rule. Therefore, not all of the necessary elements for issue preclusion to apply are present. There was not a final judgment on the identical issue of imposition of reduction of benefits for willful violation of a safety rule. Consequently, we perceive no error in ALJ Mottram's refusal to grant the respondents' motion for summary judgment based on issue preclusion.
II.
The respondents also contend that ALJ Mottram erred in denying their request that the claimant be deemed to have had admitted to a safety rule violation by virtue of his failure to timely respond to the respondents' requests for admissions. Under C.R.C.P. 36, a party may serve upon any other party a written request for the admission of the truth of a certain matter. The rule also provides that the matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the requesting party a written answer or objection. Here the claimant did not respond to the written request for admissions sent by the respondents.
We initially note hat § 8-43-207(1)(e), C.R.S. 2009, provides that an ALJ may rule on discovery matters and impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery. Whether to impose sanctions and the nature of the sanctions to be imposed are matters within the fact finder's discretion. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office 85 P.3d 619 (Colo. App. 2003). The fact finder is given flexibility in choosing the appropriate sanction and should exercise informed discretion in imposing a sanction that is commensurate with the seriousness of the disobedient party's conduct. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office supra. In our view, the present case is in the nature of a discovery dispute and therefore we review the matter under the standard of an abuse of discretion. The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The Office of Administrative Courts' Rule of Procedure (OACRP) 2(B), 1 Code Colo. Reg. 104-3 (2009), provides that the Colorado Rules of Civil Procedure apply to Workers' Compensation hearing unless they are inconsistent with these rules and the provisions of the Workers' Compensation Act (Act). We acknowledge that some of the Colorado Rules of Civil Procedure have been found to be applicable to workers' compensation cases. See generally Speier v. Industrial Claim Appeals Office, 181 P.3d 1173 (Colo. App. 2008); Powderhorn Coal Co. v. Weaver 835 P.2d 616 (Colo. App. 1992); see also Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (C.R.C.P. 26 used in workers' compensation cases).
We recognize that no Workers' Compensation Rule of Procedure or provision of the Act expressly prohibits the incorporation of C.R.C.P. 36. However, there are specific rules of procedure governing discovery and prehearing disclosure in workers' compensation cases. These include Workers' Compensation Rule of Procedure 9-1, 7 Code Colo. Reg. 1101-3 (2009). As noted by the ALJ, Rule 9-1 allows for interrogatories and depositions but does not specifically provide for admissions. While Rule 9-1(H) provides that upon agreement of the parties or for good cause shown, an administrative law judge may allow additional discovery, here there was no order or agreement reached regarding a request for admissions.
C.R.C.P. 36 must be read in conjunction with the case management features of C.R.C.P. 16 and C.R.C.P. 26, which involve required disclosures. C.R.C.P. 36 requires that requests for admissions are subject to the limitations contained in the Case Management Order, which involves required disclosures. While case management orders are not routinely entered in workers' compensation proceedings, there are required discovery disclosures. Section 8-43-210, C.R.S. 2009 provides that medical records, vocational reports and expert witness reports must be exchanged with all other parties at least twenty days prior to the hearing date. Further, OACRP 20 provides for a Case Information Sheet to be filed before the hearing by the parties. The information sheet must identify the issues remaining for hearing, the names of the lay and expert witnesses to testify at the hearing, whether each witness shall testify in person or by telephone, and the area of expertise of any expert witness. However, we cannot say that the ALJ was compelled to find that discovery disclosure provisions involved in workers' compensation cases are equivalent to the case management features of C.R.C.P. 16 and C.R.C.P. 26 and that no inconsistencies exist.
In our view the rules of procedure governing discovery in workers' compensation claims and the duties of pretrial disclosure in civil cases are inconsistent, so that the ALJ's refusal under the circumstances of this case to import to the workers' compensation system the requirements of C.R.C.P. 36 does not constitute an abuse of discretion. See Longhenry v. Cables End, Inc., W. C. No. 4-508-221 (March 11, 2003) (civil rules concerning duties of pretrial disclosure in civil cases, and the management of civil lawsuits are not always applicable in workers' compensation cases). Therefore, we perceive no reason to interfere with the ALJ's denial of the request that the claimant be deemed to have had admitted a safety rule violation such that his benefits pursuant to § 8-42-112(1)(b) must be reduced.
III.
The respondents finally contend that ALJ Mottram's ruling regarding the safety rule violation is not supported by substantial evidence in the record. We disagree.
Under § 8-42-112(1)(b) it is the respondents' burden to prove every element justifying a reduction in compensation for willful failure to obey a reasonable safety rule. Triplett v. Evergreen Builders Inc., W. C. No. 4-576-463 (May 11, 2004). The question of whether the respondents met their burden to prove a willful safety rule violation is generally one of fact for determination by the ALJ. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995). Because the issue is factual in nature we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here the ALJ made the following findings of fact with record support. The claimant worked as a foreman mechanic/fill-in lead for the employer. Tr. at 18-19; Exhibit O at 280. The claimant was scheduled to be off work on the date of the injury but the employer contacted the claimant to come to work. Tr. at 46-47; Exhibit O at 28-281. The claimant was aware that he would be required to work on the drag line but he generally took care of the rope on the bucket end. Tr. at 47; Exhibit O at 284 304. The claimant believed he would be working in the bucket, which would not require a safety harness. Tr. at 51 55-56. The claimant was not advised of what specific safety equipment he would need to perform his job. Tr. at 48. The claimant did not have his safety harness with him, as he did not believe that he would need it on the day in question. Tr. at 51. The dragline became tangled and the claimant went up some stairs to get it dislodged. Tr. at 51. The claimant went on top of a "drum" to attempt to free the drag line and fell. Tr. at 53-54; Exhibit O at 282. The claimant did not have his safety harness on to tie himself off and as a result fell. Tr. at 58. At the time in question, the claimant did not consider whether he was in danger nor was the claimant contemplating the safety rule. Tr. at 52. The claimant's only focus was getting the rope back into a clamp. Tr. at 52-54. In an e-mail to his supervisor, the claimant noted that in the future he would not get in a hurry or let other issues distract him from his safety. Exhibit M at 56. The ALJ determined that the claimant's usual work on the drag line did not require his use of fall protection, and his failure to utilize his fall protection on the day in question was a result of his negligence, not a deliberate act. Tr. at 53-54. The ALJ concluded that the claimant's injury was a result of carelessness, negligence, and forgetfulness, but was not the result of a willful violation of the employer's reasonable safety rule. In our view, the ALJ's determination regarding the failure to demonstrate the requirement willfulness is supported by substantial evidence in the record.
Finally, the ALJ's determination is fully consistent with the legal standard applicable to a finding of willfulness. In this regard, we note that the term "willful" connotes deliberate intent, but mere carelessness, negligence, forgetfulness, remissness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968). Thus, the ALJ's factual findings are supported by substantial evidence in the record, and they support, in turn, the conclusion that the claimant's actions were not willful. Accordingly, we are unpersuaded to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 31, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
STEVE WILKINSON, CRAIG, CO, (Claimant).
COLOWYO COAL COMPANY, MEEKER, CO, (Employer).
AIG RISK MANAGEMENT SERVICES, Attn: PAM MOON, C/O: SEDGWICK CLAIMS MANAGEMENT SVC INC, GREENWOOD VILLAGE, CO, (Insurer).
LAW OFFICE OF OTOOLE SBARBARO, PC, Attn: NEIL D OTOOLE, ESQ, DENVER, CO, (For Claimant).
HALL EVANS, LLC, Attn: DOUGLAS KOTAREK, ESQ/MEGAN COULTER, ESQ., DENVER, CO, (For Respondents).