Colorado Employer and Carrier Need Not Disclose if They Made Gifts to State Comp Judges

A Colorado workers’ compensation insurer and an employer’s counsel need not respond to a discovery request made by a workers’ compensation claimant that they disclose whether any of them had given any gifts “of monetary value” to anyone working for the various offices administering and adjudicating the state’s workers compensation law, held a state appellate court [see Kilpatrick v. Industrial Claim Appeals Office, 2015 COA 30, 2015 Colo. App. LEXIS 348 (Mar. 12, 2015)]. The employer had declined to provide the information on the grounds that the request was overly burdensome and harassing. The claimant moved to compel, arguing that district court judges were required to disclose their financial contributions, while workers’ compensation prehearing administrative law judges (PALJs), administrative law judges (ALJs) and members of the Industrial Claim Appeals Office were not. The claimant responded that because he could not obtain the financial information “automatically” through public financial disclosure, his discovery request was the “only way to obtain this information.” The state appellate court, affirming the Industrial Claim Appeals Office, disagreed.

Background

Claimant sustained an admitted, compensable injury to his left wrist in June 2011 and underwent surgery a few weeks later. He continued to complain of pain and sought additional surgery, but his authorized treating physician and several other physicians indicated such additional surgery would not help based, at least in part, to claimant’s “somewhat fragile psychological state.” One physician felt the claimant’s condition could improve, however, with the surgery.

As part of the ensuing litigation, claimant served employer with an interrogatory inquiring whether anyone working for or associated with its insurer or employer’s counsel had given any gifts to anyone working for the prehearing unit of the Division of Workers’ Compensation (PALJs), the Office of Administrative Courts (ALJs), or the Industrial Claim Appeals Office (Panel). The employer objected and claimant’s discovery order request was denied.

Claimant’s Discovery Request Overly Broad

On appeal, the court observed that the PALJ in the case held a hearing at which the parties articulated reasons for and against production. The PALJ heard and weighed those factors before denying claimant’s discovery request. Claimant had not demonstrated that his case hinged on information these requested financial records might reveal. To the contrary, the disclosure of the financial records of hundreds of the insurer’s employees has no direct bearing on the case. Indeed, claimant made no offer of proof to the PALJ, the ALJ, or to the appellate court that the interrogatory was reasonably calculated to lead to the discovery of admissible evidence. The court added that claimant had not offered to narrow his request to the PALJ and ALJ in his case. While such evidence could be relevant if there were a basis to believe that an ALJ in this case accepted potentially inappropriate gifts, the claimant had made no such showing and had not demonstrated any basis for believing that such gifts were made.

Equal Protection Argument Fails

Claimant also argued that workers’ compensation litigants were treated inequitably as compared to litigants in district court because workers’ compensation litigants do not have access to PALJs‘, ALJs’, and Panel members’ financial disclosures. According to claimant, Colo. Rev. Stat. § 24–6–202(1), (2), required district court judges to make detailed financial disclosures, but no comparable disclosure mandate applied to PALJs, ALJs and Panel members. This disparity, argued claimant, violated his Fourteenth Amendment guarantee of equal protection under the law.

The appellate court was unconvinced. It noted that an executive order issued in 2001 and discussed in Youngs v. Industrial Claim Appeals Office, 2012 COA 85M, 297 P.3d 964, imposed a duty on all administrative law judges to adhere to the Colorado Code of Judicial Conduct (“CJC”). The CJC applied broadly to “to all full-time judges.” It defined such judges as “anyone who is authorized to perform judicial functions, including an officer such as a magistrate, referee, or member of the administrative law judiciary.” Contrary to the assumption underlying claimant’s position, therefore, workers’ compensation claimants should have access to the same financial disclosure information as was available to civil litigants in courts of record. In short, claimant’s right to equal protection was not abridged.

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