Opinion
Record No. 2370-93-4
Decided: April 11, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Alan G. Mason, pro se.
Bradford C. Jacob (Charles F. Midkiff; Midkiff Hiner, P.C., on brief), for appellees.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Alan G. Mason (Mason) appeals a decision of the Virginia Workers' Compensation Commission (commission) denying his claim for benefits for an injury he alleges was suffered while in the employ of Danis Enterprises Corporation (employer). Mason asserts that the commission erred in excluding supporting medical evidence from the record as a sanction for his counsel's failure to cooperate with discovery. We agree and reverse the commission's decision.
Mason's claim arose out of an alleged injury to his lower back on May 17, 1991. Mason filed a letter application with the commission seeking benefits on May 18, 1992. The commission granted employer's request to depose Dr. David P. Sniezek, Mason's treating physician. By agreement of the parties' counsel, the deposition was scheduled for October 14, 1992 at Dr. Sniezek's Washington, D.C. office. Employer's counsel appeared at the designated time and tendered a check for $650 to Dr. Sniezek in payment of his deposition fee. When Mason's counsel failed to appear, Dr. Sniezek refused to proceed with the deposition because both counsel were not present. Dr. Sniezek also refused to return the deposition fee.
On October 16, 1992, employer, by letter, requested that the deputy commissioner overseeing the claim ascertain why counsel had not attended the deposition. Employer further asserted that if counsel's explanation was not adequate, the claim should be dismissed or in the alternative the deposition rescheduled with costs assessed to Mason.
On October 27, 1992, the deputy commissioner, by letter, directed that counsel explain his failure to appear at the deposition. The deputy commissioner also authorized the rescheduling of the deposition, asserting that she would "address the issue of [Dr. Sniezek's] fee prior to the rescheduled deposition." The letter also discussed efforts by Mason to communicate to the commission his displeasure with his counsel's failure to keep him adequately informed of the progress of his claim.
Mason's counsel responded to the deputy commissioner's letter on December 4, 1992. Counsel asserted that his failure to appear at the deposition should not have prohibited the deposition from going forward. He maintained that, as Dr. Sniezek was not a party and Mason had not requested to take his deposition, neither Mason nor his counsel were required to attend the deposition. He further offered to "consider" reimbursing the costs of the failed deposition. On December 22, 1992, the deputy commissioner, by letter, directed that Dr. Sniezek's deposition be rescheduled with costs to be borne by Mason's counsel.
Employer's counsel believed that the deposition had been rescheduled by Mason's counsel for December 30, 1992 and appeared at Dr. Sniezek's office on that date. At that time, employer's counsel was informed by the doctor's receptionist that the deposition had not been scheduled because Mason's counsel had not confirmed it for that day as required. The doctor's deposition was not taken on that day. Consequently, employer's counsel again requested that the claim be dismissed for failure to cooperate with discovery and that a fee of $500 plus costs be assessed in employer's favor. In a subsequent communication to the deputy commissioner, employer's counsel requested that, in the event the claim was not dismissed, the deputy commissioner strike all of Dr. Sniezek's medical records proffered by Mason.
On March 1, 1993, the deputy commissioner informed Mason's counsel by letter that unless Mason or his counsel agreed to pay Dr. Sniezek's fee by March 15, 1993, she would strike all of Dr. Sniezek's records. On March 22, 1993, the deputy commissioner indicated that no reply had been received to this order and the records were, accordingly, struck.
After receiving evidence ore tenus, the deputy commissioner ruled that, in the absence of Dr. Sniezek's medical records, there was insufficient evidence to establish the occurrence of a disability resulting from an injury by accident. Mason appealed, asserting that the deputy commissioner abused her discretion in striking Dr. Sniezek's medical records. The commission affirmed, ruling that Mason's selection of attorney and physician bound him to their actions and that Mason must suffer the consequences of their failure to serve his best interest. Mason, now acting pro se, appeals this decision.
The commission is a quasi-judicial body within the area of its jurisdiction. Accordingly, it holds the power of contempt over those in disobedience of its lawful orders. Hudock v. Industrial Commission, 1 Va. App. 474, 481, 340 S.E.2d 168, 172 (1986); see also Code Sec. 65.2-202(A). The commission's power of contempt "is a concomitant of judicial power, necessary to the proper and effective discharge of its duties." Hudock, 1 Va. App. at 481, 340 S.E.2d at 172. " 'Without the authority to cite and punish for contempt of its decrees and orders the Commission would be virtually powerless to enforce them.' " Id. at 481, 340 S.E.2d at 172-73 (quoting Segrella v. Workmen's Compensation Commission, 162 A.2d 810, 813 (R.I. 1960)).
Some states do not afford contempt power to their workers' compensation agencies. See 82 Am.Jur.2d Workers' Compensation § 521 (1992); cf. Wright v. Plaza Ford, 395 A.2d 1259 (N.J.Super.Ct. App. Div. 1959).
The decision to punish a party for disobedience of an order is a matter committed to the commission's discretion. See Hudock, 1 Va. App. at 482, 340 S.E.2d at 173; see also Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894 (1991) (whether or not to find a party in contempt is a matter left to the sound discretion of the trial court). An appellate court cannot, however, resign its jurisdiction over an administrative agency or lower court simply because a matter is committed to that agency's or court's discretion. The discretion granted to such bodies is not unbridled. Rather, it is a judicial discretion, the exercise of which implies conscientious judgment. See Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976); Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273 (1960).
The commission's express authority to punish for disobedience of its orders is limited by statute to the authority vested in courts and judges by Code Sec. 18.2-456 or Sections 19.2-339 et seq. to punish for such disobedience. Code Sec. 65.2-202(A). These provisions are silent as to the nature of the sanctions that may be imposed. Therefore, in order to determine the sanctions that the commission, as a quasi-judicial body, is authorized to impose, we look to the authority vested in the courts and judges to punish for disobedience of their orders. Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993).
Rule 4:12 governs the imposition of sanctions for "failure to make discovery." With respect to the specific matter of failure to comply with orders concerning depositions, the rule permits the court to:
take any action authorized under paragraphs (A), (B), and (C) of subdivision (b) (2) of this Rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The referenced actions are:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
These sanctions corresponded to those found in Rule 1.12 of the Virginia Workers' Compensation Commission:
In addition to the statutory authority of the Commission to levy fines, to assess attorney fees and punish contempt, the Commission may enforce its rules and the provisions of the Workers' Compensation Act upon motion of a party, or upon its own motion, after giving a party or other interested person the opportunity to be heard, by imposition of the following sanctions:
A. Rejection of a pleading including, but not limited to, all or part of a claim and grounds of defense;
B. Exclusion of evidence from the record;
C. Dismissal of a claim or application.
This extensive scheme of coercive and punitive measures gives the commission "broad discretion in determining what sanctions, if any, will be imposed upon a litigant who fails to respond timely to [orders concerning] discovery." Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990). Nonetheless, when a judicial body punishes for contempt, it "is obliged to use the least possible power adequate to the end proposed." 17 Am.Jur.2d Contempt Sec. 220 (1990). Thus, when a contemnor is subjected to Draconian punitive measures, such as the outright dismissal of a case with prejudice or the striking of evidence central to a claim or defense, the record must support the assertion that no lesser sanction could have adequately compelled compliance and preserved the dignity of the tribunal.
Under the facts of this case, as outlined below, we hold that the imposition of a sanction that precluded the claimant from realistically prosecuting the merits of his claim was not warranted.
Although it has been held that the exclusion of certain evidence which is dispositive to the case is not the equivalent of the dismissal of the case, even where the exclusion of the evidence in question leads to the dismissal of the case, where this sanction . . . would have the same effect as an order of dismissal or default, [it] should not be imposed unless the offending party demonstrates flagrant bad faith and callous disregard of its responsibilities, or unless its disobedience constitutes a willful and direct flaunting of [judicial] authority.
23 Am.Jur.2d Depositions and Discovery Sec. 383 (1983) (footnotes omitted).
The record reflects that Mason had a preexisting back condition resulting, in part, from a prior compensable industrial accident. Accordingly, medical evidence from Dr. Sniezek, Mason's treating physician, was critical to Mason's claim that he suffered a new compensable industrial accident on May 17, 1991 resulting in disability and necessary medical treatment. In fact, the deputy commissioner dismissed Mason's claim specifically "in the absence of Dr. Sniezek's records" after finding that "in his testimony [Mason] identified an incident that would qualify as a compensable accident [on May 17, 1991]."
On appeal, the commission reviewed the difficulties encountered by employer in its efforts to obtain the deposition of Dr. Sniezek. The commission affirmed the deputy commissioner's imposition of the sanction of striking the doctor's records from the evidence and, consequently, the deputy commissioner's dismissal of Mason's claim. Although the commission acknowledged that the deputy commissioner, in a letter to Mason's counsel dated February 4, 1993, had stated, "I cannot see that [Mason], himself, has played any part in the problems encountered in taking Dr. Sniezek's deposition" and had directed Mason's counsel " alone to proceed with the scheduling and confirmation of [Dr. Sniezek's] deposition," it placed the fault for the failure primarily on Dr. Sniezek and Mason rather than on Mason's counsel.
The commission reasoned that Mason had selected Dr. Sniezek as his treating physician and that "it should have been apparent at the time of [Mason's] selection that a treating physician was being selected beyond the jurisdiction of the Virginia Workers' Compensation Commission" because Dr. Sniezek's office was located in Washington, D.C. Implicit in the commission's reasoning is the conclusion that the commission had no power to sanction the doctor. Thus, the commission concluded that when Dr. Sniezek improperly "refused to go forward with the depositions, having been paid to do so [by employer], the result [of dismissing his medical records] must be born [sic] by [Mason] who selected him as the treating physician." Finally, the commission concluded:
In this case while the result may be harsh, in the final analysis it comes about because of the conduct of the physician and attorney selected by the claimant. Under these circumstances, the claimant cannot be heard to complain that his best interests have not been served by those whom he selected. Conversely, we cannot place the employer at a disadvantage because of the conduct of the claimant's physician and perhaps that of his attorney.
We find nothing in the record which supports a conclusion that Dr. Sniezek would not have given the required deposition had Mason's counsel properly confirmed the December 30, 1992 deposition date. The doctor believed counsel would do so and counsel should have done so. Moreover, the record reflects that counsel conceded that he had not made the necessary arrangements with Dr. Sniezek to schedule the depositions for that date.
On the record before us, it is clear that the failure to comply with discovery was based solely upon the failure of Mason's counsel to reschedule Dr. Sniezek's deposition. The fault cannot be charged to Mason other than on account of his selection of that counsel. Under these circumstances, and in light of the deputy commissioner's letter directing that counsel was "alone" responsible for rescheduling the deposition, the commission had within its power less extreme sanctions, which it should have imposed upon counsel as the responsible party, before imposing the most severe sanction of striking the medical records. See 17 Am.Jur.2d Contempt Sec. 220.
Under the rationale stated in Jeff Coal, Code Sec. 65.2-202(A) permits the commission to go beyond the remedies found in its Rule 1.12 when necessary and to utilize those powers given to the trial courts. Jeff Coal, 16 Va. App. at 278, 430 S.E.2d at 717. Rule 4:12 permits trial courts, and thus Code Sec. 65.2-202 permits the commission, to require the attorney representing the claimant to pay reasonable expenses, including attorney's fees, caused by his conduct in failing to comply with a discovery order. Where it is determined that a failure to make discovery is the fault of counsel, it is appropriate to sanction counsel by assessing costs directly to him. See 23 Am.Jur.2d Depositions and Discovery Sec. 370 (1983). In the alternative, the commission could have struck the medical records and dismissed Mason's claim without prejudice on May 6, 1993 so that Mason would have been able to file a new claim prior to the running of the statutory limitation on May 17, 1993. In that situation, it would have been reasonable to expect that Mason himself or with the assistance of another attorney would have made the necessary arrangements to secure Dr. Sniezek's deposition for employer.
In sum, we find under the facts of this case that it was an abuse of discretion for the commission to impose the most extreme sanction for the failure to comply with its discovery order without first attempting to compel compliance through a less severe sanction.
For these reasons, we reverse the commission's decision and remand with instructions that Mason's claim be reinstated on the hearing docket and that he be given a reasonable opportunity to comply with employer's discovery request, the cost of that compliance to be borne by Mason. The commission is further authorized to take appropriate action against Mason's former counsel after first affording him an opportunity to be heard, if it be so advised.
Reversed and remanded.