Opinion
W.C. No. 4-474-989.
March 10, 2008.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated September 18, 2007, that denied her request for permanent total disability benefits. We set aside the order and remand this matter for additional findings and the entry of a new order.
The ALJ credited testimony and reports submitted by the respondents in support of his determination that the claimant failed to establish that she was entitled to permanent total disability benefits. In support of her appeal, the claimant asserts that the ALJ erred in excluding the direct testimony of two witnesses. We conclude that the ALJ must determine whether the claimant's conduct constituted a "willful failure to comply with permitted discovery" pursuant to § 8-43-207(1)(e), C.R.S. 2007, and enter a corresponding order on the merits of this case.
The record reflects the following transactions during the course of the hearing. The parties introduced various documents into evidence without objection. Tr. at 4, 78, 153. Included in the claimant's documents were two functional capacity evaluations prepared by Gail Gerig, and an employability assessment report, with two addenda, prepared by Lynn Elms. Exhibits 1 — 2b. The claimant's counsel called Ms. Gehrig as a witness. Tr. at 53. The respondents' counsel objected. In support of her objection, respondents' counsel stated that the claimant had failed to disclose the witness or a summary of her testimony in response to their interrogatories. Tr. at 53-54. The ALJ sought to determine whether the witness's testimony would be merely cumulative; however, counsel for the claimant indicated that Ms. Gehrig was expected to testify to matters "in addition to her report." Tr. at 55-56. The respondents' counsel indicated that the respondents "had no idea they were going to be here to testify." Tr. at 54. The ALJ sustained the respondents' objection, but allowed the claimant to call the witnesses for rebuttal. Tr. at 57. The claimant's counsel later advised the ALJ that Ms. Gehrig and Dr. Elms were not indicated in the claimant's response to the respondents' interrogatories. Tr. at 119. However, counsel for the claimant maintained that the respondents were not prejudiced in light of previous filings and exchanged reports that identified Ms. Gehrig and Dr. Elms as expert witnesses. Tr. at 54-57, 119-120. The ALJ issued his written order denying the claimant permanent total disability benefits and cited evidence from the respondents' experts in support of his decision.
The claimant's specific argument on appeal is that the ALJ erred by excluding testimony from her experts in support of her case in chief. The claimant characterizes the ALJ's decision to exclude their testimony as a discovery sanction. Claimant's Brief at 6-7. The respondents do not contend otherwise, and our review of the record supports the claimant's characterization of the ALJ's ruling. In support of her argument, the claimant asserts that the respondents effectively had notice that she intended to call the experts at hearing in light of previously filed documents that identified them as witnesses. The claimant refers to her unopposed motion for an extended hearing that identified her experts as witnesses. Tr. at 119. We note that the record includes an "Unopposed Motion to Reconsider Order for a Full Day Hearing" that reflects the claimant's averments regarding the listing of her experts as witnesses. In any event, we are not persuaded that the claimant's previous listings of witnesses required the ALJ to allow the experts at issue to testify in the claimant's case-in-chief.
According to the relevant procedural rule, witnesses may not testify in a party's case in chief unless they are endorsed as witnesses for hearing on the application or response, added by written notice prior to hearing or by stipulation, or by obtaining an order. See Office of Administrative Courts' Rule of Procedure 13, 1 Code Colo. Reg. 104-3 at 7. Thus, a party's failure to initially disclose potential witnesses may bar them from providing direct testimony at hearing. However, parties may propound interrogatories to identify the witnesses actually expected to be called at hearing, together with a summary of their expected testimony. See Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619, 622 (Colo.App. 2003) (upholding exclusion of testimony of witnesses not sufficiently or timely identified and summarized in discovery). We therefore find the claimant's assertion that the respondents were not prejudiced by her failure to identify the experts and summarize their anticipated testimony pursuant to discovery requests to be inapposite to the circumstances in this case.
The claimant further asserts that the ALJ should not have excluded direct testimony from the claimant's experts due to the respondents' failure to seek sanctions prior to hearing. However, the respondents' counsel indicated that the respondents "had no idea" that the claimant's experts would be called to testify. Tr. at 54. It would therefore be unreasonable to expect them to seek a motion to compel or to strike testimony when, according to the claimant's response to interrogatories, the respondents did not anticipate the testimony at issue.
The parties recognize that the ALJ has broad discretion in conducting hearings and making evidentiary rulings. They further acknowledge that we may not disturb the ALJ's evidentiary rulings unless the ALJ abuses his discretion. In order to constitute an abuse of discretion, the ALJ's ruling must, under the totality of the circumstances, exceed the bounds of reason. See, e.g., Cox v. ADT Security Systems, Inc., W.C. Nos. 4-414-252 4-414-253 (October 30, 2000) (affirming exclusion of previously undisclosed evidence). We conclude that the claimant's arguments that are based on the respondents' conduct do not demonstrate any abuse of discretion by the ALJ in excluding the claimant's experts' testimony from her case in chief. However, we further conclude that the ALJ failed to make sufficient findings to support the exclusion of their direct testimony under the circumstances.
The ALJ sustained the respondents' objection to having the claimant's expert witnesses testify in support of her case in chief because the claimant failed to include information about them that the respondents sought in discovery. Tr.at 53-54, 120. It therefore appears that the ALJ imposed a sanction pursuant to § 8-43-207(1)(e), C.R.S. 2007, which authorizes the ALJ to "rule on discovery matters and impose the sanctions provided in the rules of procedure in the district courts." However, the discovery sanctions are only available if there is a "willful failure to comply with permitted discovery." For the purposes of this statute, a party failing to comply with discovery requests acts willfully if she acts with deliberate intent. Deliberate intent may sometimes be established by the facts of a case without a specific finding by the ALJ that the offending party acted willfully. Shafer v. Industrial Claim Appeals Office, 85 P.3d at 621-22.
In this case, it is apparent that the ALJ determined that the claimant sought to have her experts testify beyond the precise scope of their written reports and excluded such testimony based on the claimant's failure to make corresponding disclosures in response to the respondents' interrogatories. Tr. at 54, 56-58. The ALJ allowed the claimant's experts to provide rebuttal testimony. Tr. at 57. See Estate of Ericksen v. Foxworth Galbraith Lumber Co., W.C. No. 4-497-321 (July 7, 2004) (upholding ALJ's decision to allow party's rebuttal witness notwithstanding party's discovery violation). However, it does not appear from the record that the ALJ made a determination that the claimant made a willful discovery violation. See Hernandez v. Longmont Dairy Farms, Inc. W.C. No. 4-167-102 (December 11, 1995) (matter remanded to ALJ for determination of whether party engaged in willful discovery violation).
This matter must therefore be remanded to the ALJ for additional findings. The ALJ shall determine whether the claimant's conduct constitutes a willful failure to comply with permitted discovery pursuant to § 8-43-207(1)(e). If the ALJ determines that the claimant willfully violated the respondents' discovery requests, he may reinstate his order. In the event that the ALJ determines that the claimant did not willfully fail to comply with discovery, he shall allow the claimant to present testimony from the excluded experts in support of her case in chief subject, of course, to cross-examination. The ALJ will then consider such testimony in determining the issue of permanent total disability.
IT IS THEREFORE ORDERED that the ALJ's order issued September 18, 2007, is set aside, and the matter is remanded for further proceedings and the issuance of a new order consistent with the views expressed in this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
PAULINE STRENCH, ABERDEEN, WA, (Claimant)
WILD WEST CASINO, Attn: FRONT RANGE GAMING, CRIPPLE CREEK, CO, (Employer)
WESTERN GUARANTY FUND, Attn: CLAUDIA RENEGAR, DENVER, CO, (Insurer)
MCDIVITT LAW FIRM, PC, Attn: SHEILA TOBORG, ESQ., COLORADO SPRINGS, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: HOLLY M BARRETT, ESQ., DENVER, CO, (For Respondents)