ADMINISTRATIVE DISCOVERY:
“In re the Workers’ Compensation
Claim of: The need for Efficiency v.
Information”
Joseph W. Gren, Esq.
Lee + Kinder, LLC
Content
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OAC Overview
General Services v. Work Comp
Modes and Methods of Discovery
Respondent Discovery Concerns
Claimant Discovery Concerns
OAC /DOWC Discovery Concerns
Sanctions
Office of Administrative Courts
 Organic Act, Section 24-30-1001(1),
C.R.S.
 Primary adjudicatory body for
disputes arising within 50 Colorado
govnt. administrative agencies
 Public Benefits (Medicaid, Food stamps)
 Non-Public Benefits
 Workers’ Compensation Benefits
Office of Administrative Courts
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Purpose: “The Office was created to provide an accessible, independent, and
cost-effective process to hear and resolve disputes related to government
agencies’ statutes, rules, and regulations, including those that govern eligibility
determinations for public benefits.” OAC W.C. Performance Audit, 2012 (p.13)
http://www.leg.state.co.us/OSA/coauditor1.nsf/All/0DB430186D34878087257A9
40051CB3C/$FILE/2176%20OfficeAdminCourts%20Perf%20Sept%202012.pdf
Workers’ Compensation –
 59% of OAC case load
 1800 hearings including disfigurement
The trend was 19% reduction in hearings and OAC resolution over 4
years from 2008-2012.
Why the reduction in hearing at OAC?
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Broader discovery? More settlements because of available information?
But audit assesses performance on meeting statutory timeframes for conducting hearings
Concluded that OAC did not “consistently hold” hearings according to guidelines
Next Audit in 2016.
Office of Administrative Courts
 Authority to Permit Discovery in
Proceedings
 4 Sources for Discovery Rules
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Colorado Rules of Civil Procedure
Organic Act of each Agency or Benefit
OAC Procedural Rules
Rules promulgated by each agency
administering the entitlement benefit
Office of Administrative Courts
 Rules of procedure and discovery
overlaid by C.R.C.P. 81(a)
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“These rules do not govern and practice in any special statutory
proceeding insofar as they are inconsistent or in conflict with
procedure and practice provided by applicable statute.”
 Limitation set by respective Statute
 W.C.: Limitations set by
administrative rule promulgated
consistent with Statute?
OAC – General Services
 General Services’ Procedural Rules
 Rule 9: Applies to 90 Day Docket GS
proceedings
 “To the extent practicable” C.R.C.P.
26-37 governs discovery
 Except when the rules provide for
required disclosures or when
discovery can be initiated
 No ALJ permission required
OAC – General Services
 Rule 9-B: CRCP 16 not applicable
 Rule 9-C: Permits requests for admissions
 Rule 9-D: ALJ not involved unless resolving
dispute [no permission for pro se discovery]
 Rule 9-E: Permits modification of discovery
deadlines and limitations
 Rule 13-B: ALJ can modify discovery by PHC
 Rule 13-A(2): new witnesses and exhibits can be
added 20 days before hearing if not reasonably
foreseeable at the time of mandated prehearing
statements due.
OAC – Workers’ Compensation
 Special Statutory Proceeding
 8-43-201(1), C.R.S.
 Director of DOWC and OAC has statutory
jurisdiction to hear and decide all
matters arising under W.C. Act
 OACRP Rule 2:
C.R.C.P. apply to W.C.
hearings unless they are inconsistent with
“these rules” and “provisions of the Workers’
Compensation Act.”
 OAC Rules do not Address Discovery
OAC – Workers’ Compensation
 What in Act governs discovery?
 Section 8-43-207(1)(e):
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“Upon written motion and for good cause shown, [the ALJ are empowered to] permit
parties to engage in discovery; except that permission need not be sought if each party
is represented by an attorney.”
Director or ALJ may rule on discovery matter and impose sanctions provided in C.R.C.P.
for willful failure to comply with permitted discovery.
Act presumes discovery is permitted.
 Nothing in Act expressly limits
discovery permitted by rules of civil
procedure in OAC proceedings
OAC – Workers’ Compensation
 Division of Workers’ Compensation
Rule 9-1 outlines discovery.
 Does Division rule apply in OAC?
 Section 8-43-207.5(1),(2) permits
Prehearing Judges in Division to resolve
“discovery matters” and authority for
“parties to cause depositions”
 Section 8-43-207.5(4): “Director shall
adopt rules and regulations as may be
necessary to implement…this section.”
DOWC Discovery Rules
 Rule 9-1 limits discovery.
 “One of the goals of the workers’
compensation system is to minimize litigation,
but disputes do arise and a system for
resolution is necessary. One of the underlying
premises of an administrative adjudication
system is that parties should be able to resolve
disputes in, as much as possible, a quick,
inexpensive and simple manner. Therefore,
when discovery is authorized and appropriate,
the following apply:”
DOWC – Discovery Rules
(Modes and Methods)
 Specific to an application for hearing.
Anderson v. Anderson Distributing, W.C. No. 4-722-115 (August 5, 2008).
 When Application is withdrawn, then
discovery ends and no continuing obligation
to update propounded discovery. Reji v.
Pitney Bowes, Inc., W.C. No. W.C. No. 4806-086(July 11, 2011).
 Prehearing discovery may be warranted
 All discovery must be completed 20 days
prior to hearing except for exp. hearing.
Modes and Methods
 Interrogatories (Rule 9-1(A)(1-3))
 one set of not more than 20
interrogatories and production of
documents
 Each question or POD is a single question
or request.
 Responses due 20 days from date of
mailing of the interrogatories.
 Cut off to send discovery is 40 days prior
to hearing except for expedited hearing.
Modes and Methods
 Depositions:
 Not permitted as a matter of right
 The rules provide for depositions of
parties and non-party witnesses.
 Can be evidentiary or for discovery
purposes
 Can be done prehearing or post-hearing
when good cause is shown for testimony
by deposition, section 8-43-210, C.R.S.
Modes and Methods
 Deposition of a party; Rule 9-1(B)(1):
 Requires motion and order.
 Permission will be granted only when
there is a specific showing:
 (a) That a party who has been served with
written interrogatories has failed to respond
to the interrogatories; or
 (b) That the responses to the written set of
interrogatories are insufficient; or
 (c) All parties agree to the taking of a
deposition.
Modes and Methods
 Deposition of non-party witnesses
 Rule 9-1(B)(2): Depositions of other
witnesses may be taken upon written
motion, order, and written notice to
all parties.
Modes and Methods (Misc.)
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9-1(E) Imposition of sanctions upon such party pursuant to
statute and rule. However, attorney fees may be imposed only
for violation of a discovery order.
9-1(F) Asserted privileges shall be accompanied by a privilege
log with sufficient description to allow the other parties to
assess the applicability of the privilege claims.
9-1(G) Once an order to compel has been issued and properly
served upon the parties, failure to comply with the order to
compel shall be presumed willful.
9-1(H) Upon agreement of the parties or for good cause
shown, an administrative law judge may allow additional
discovery, may limit discovery or may modify the time limits
set forth in this rule. Setting of a formal hearing on an
expedited schedule shall constitute good cause. Good cause
shall include but not be limited to an agreement of the parties
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Modes and Methods (Misc.)
 Need an order to expand discovery
 Use of interrogatories beyond 20
questions
 Preservation of discovery obligations
when multiple applications for hearing
filed on similar or the same issues
 Request for admissions
 Site evaluations (may be?)
Non-Discovery Disclosures
 W.C.R.P. 5-4(C) Releases/Information
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Medical information from health care providers who have treated the part(s) of the body or conditions(s) alleged
by the claimant to be related to the claim, during the period five years before the date of injury and thereafter
through the date of the request, will generally be considered reasonable.
Burden on Respondents to show that it is reasonably necessary to adjust claim to expand 5 year period
Informal disclosures are not considered to be discovery (attorney fee sanction does not attach).
 Mandatory Claim File Disclosure
under section 8-43-203(4), C.R.S.
Respondent Concerns
 Access to claimant’s medical history
beyond 5 year period and for other
conditions
 Access to claimant’s private financial
information
 Access to Social Security information
 Protecting Proprietary Information
 Protecting Insurance Information
Claimant Concerns
 Access to Employer’s information on
other employees’ injuries
 Access to / preservation of Expert
records
 Obtaining verification of answers
 Protecting Claimant from disclosing
embarrassing medical conditions
DOWC/OAC Concerns
 Protecting / advising pro se claimant’s
on discovery matters
 Expediting hearings v. diligence of
conducting discovery
 Issuing orders / promulgating rules
contrary to privacy laws
Discovery Sanctions
 Discovery Sanctions based upon willful conduct
 In order for a discovery violation to be
considered “willful” the ALJ must determine
that the conduct was deliberate or exhibited
“either a flagrant disregard of discovery
obligations or constitutes a substantial
deviation from reasonable care in complying
with discovery obligations.” Reed v. Industrial
Claim Appeals Office, 13 P.2d 810, 813 (Colo.
App. 2000).
Types of Sanctions
 General monetary penalties for willful violation of motion
to compel or order of PALJ.
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Must allege violation of an order to be entitled to monetary
penalties. Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001); see
Williams v. ADT Security Services, Inc. W.C. No. 4-508-408
(November 17, 2003).
Ongoing daily penalty under Crowell for each day party fails to
respond?
Reasonable attorney fees for violation of discovery order
Use of C.RC.P. 37(b)
Preclusion of witness testimony
Application for Hearing stricken
Dismissal of case
Preclusion of Testimony
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ALJ must exercise discretion when assessing sanctions, including testimonial
preclusion C.R.C.P. 37; Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo. App. 1988)
Factors ALJ may consider when precluding testimony:
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Whether there was a continuing obligation to supplement
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Whether the party requests a continuance because the party does not have
adequate notice of testimony
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Whether a party can show prejudice: (1) specify if disclosure would have
elicited additional information (2) how absence of disclosure caused a party
prejudice (3) whether party had substantial justification not to disclose
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Whether a motion to compel was requested
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Whether a party had an opportunity to cross examine the witness
No obligation to supplement witness testimony or provide expert testimony when
discovery was propounded in connection with past application for hearing.
Preclusion of Testimony
 No obligation to produce information, including
market surveys and information gained
through contact with employers if: (1) the
information is not reduced to writing; and (2)
the requesting party propounds a POD rather
interrogatory asking for detailed summary of
expert testimony. Hoffman v. United Airlines,
W.C. No. 4-991-882 (September 23, 2002);
see also Oversole v. JDK Enterprises, W.C. No.
4-351-273 (July 13, 1999).
Dismissal
 Dismissal Without Prejudice
 PALJ may strike application for hearing of a party for
failure to comply with interlocutory discovery orders.
Section 8-43-207.5(2), C.R.S.
 Dismissal With prejudice
 OAC ALJ can dismiss claims with prejudice for willful
discovery violations
 ALJ has discretion to dismiss claim under C.R.C.P.
37(b)(2)(C) as the most “severe” form of sanction
 Dismissal by motion must be supported by evidence
 Gonzales v. University of Colorado Health, W.C. Nos.
4-865-972 & 4-851-350 (June 12, 2014)