dissenting.
I dissent. The Majority is only half right in its conclusion and result. I agree with the first half of the Majority’s conclusion which states: “Trial Rules 26 through 37 of the Indiana Rules of Procedure are applicable to administrative agencies. Therefore, Rule 37 (B) which provides for sanctions must also apply.” It is the last paragraph of the Majority’s Opinion that contains the erroneous half of its conclusion and result. In the last paragraph, it denies the trial court’s right under TR. 37(B) to grant attorney fees as a sanction against the offending party where bad faith has been displayed in the discovery process and resulted in delay of discovery as well as protraction of the litigation. This erroneous result and mis-application of TR. 37(B) will compound the procedural obstacles that TR. 37(B) was designed to eliminate — the elimination of unnecessary delay in the discovery process, the elimination of litigation being unnecessarily protracted, and the elimination of unnecessary court involvement in the discovery process so that judicial time can be conserved and used to decrease the backlog of pending litigation and other pressing Court business.
The Majority has premised this erroneous half of their conclusion on the very unreliable assumption that a court order must be issued and violated before there can be any sanction by the trial court. A second faulty premise drawn by the Majority is that only the Industrial Board can sanction the party who has acted in bad faith since only its order was violated by Josam. Both premises are incorrect and both project a result never intended under TR. 37(B). Both compound the very obstacles TR. 37(B) was designed to avoid. Therefore, I dissent from the Majority Opinion. I would affirm that part of the judgment which awarded attorney fees as a sanction under TR. 37(B).
The Majority’s first premise that the trial court’s use of a sanction under TR. 37(B) is dependent upon the trial court’s issuance of an order pursuant to subsection (A) and a violation of the order is unrealistic, dysfunctional, and incorrect. In State v. Kuespert (1980), Ind.App., 411 N.E.2d 435, Judge Ratliff made a very clear and concise statement as to the need for any preliminary discovery orders by the trial court. Judge Ratliff stated in Kuespert:
“We find nothing in the wording of the rule itself which makes the court’s use of the sanctions set out in subsection (B) dependent upon the court’s issuance of an order pursuant to subsection (A). Neither does the state cite any case or authority in support of its hypothesis. This court has pointed out that ‘[a] primary objective in the adoption of our present procedural rules was elimination of delay resulting in protracted litigation.’ Clark County State Bank v. Bennett, (1975) 166 Ind.App. 471, 336 N.E.2d 663, 666_” (brackets original)
411 N.E.2d at 437.
In Kuespert, Judge Ratliff further noted “that our discovery rules, and specifically T.R. 37, are closely patterned on the Federal Rules. Finley v. Finley, (1977) Ind. App., 367 N.E.2d 1126. The purpose of Fed.R.Civ.P. 37, and thus of T.R. 37, is to facilitate discovery without the necessity of the court’s involvement. . . Federal Rule 37 provides for costs and expenses to be assessed when a party must go to the trouble of obtaining a court’s intervention to compel discovery. 4A Moore's Federal Practice ¶ 37.02 (1980). We be*79lieve the same to be true of our T.R. 37. Furthermore, it is Dean Harvey’s opinion that a court order is not necessary for relief to be had pursuant to T.R. 37(B)(2) against a party who fails to comply with discovery. 3 Harvey, Indiana Practice § 37.2 (1970).” (citations and footnote omitted, brackets original)
411 N.E.2d at 437.
TR. 37(B)(2) provides:
“To avoid abuse of discovery proceedings and to secure enforcement of the discovery provisions of these rules in any enforcement or protective proceedings under the discovery provisions of these rules or upon motion and notice by a party, witness or person to any persons affected thereby:
$ % $ * * *
“(2) The court may allow expenses, including reasonable attorney’s fees, incurred by a party, witness or person, against a party, witness or person responsible for unexcused conduct that is:
******
(c) in bad faith and abusively resisting or obstructing a deposition, interrogatories, production of evidence, inspection, examination, request, question, enforcement order, subpoena, protective order or any other remedy under the discovery provisions of these rules.”
The clear and plain language of the Rule makes it quite obvious that Judge Ratliff’s conclusory assessment of Rule 37 in Kues-pert and Dean William H. Harvey’s opinion of Rule 37. relief in his book on Indiana Practice are absolutely correct. Relief under TR. 37 is not predicated upon the issuance of an order or even its subsequent violation. Involvement of the court in the discovery process by making a motion is all that is necessary to entitle a party to relief.
The second faulty premise drawn by the Majority completely ignores Rule 37 and its purpose. Its second premise is that only the Industrial Board can sanction Josam Manufacturing Company since only the Industrial Board’s order was violated. IC 22-3-4-12 does authorize the Industrial Board to impose sanctions, but the sanctions are very limited. IC 22-3 — 4-12 provides:
“That whenever the industrial board shall determine upon hearing of a claim that the employer has acted in bad faith in adjusting and settling said award, or whenever the industrial board shall determine upon hearing of a claim that the employer has not pursued the settlement of said claim with diligence, then the board shall, if compensation be awarded, fix the amount of the claimant’s attorneys fees and such attorney fees shall be paid to the attorney and shall not be charged against the award to the claimant. It is further provided that such fees as are fixed and awarded on account of a lack of diligence or because of bad faith on the part of the employer shall not be less than one hundred fifty dollars [$150],...”
The sanctions provided for under this Statute can only be invoked by a determination of the Industrial Board after the hearing has been concluded and only then “. .. if compensation be awarded, . . ” to the claimant. This means that there is no sanction available to the Board before the hearing to compel discovery when an employer has acted in bad faith. Furthermore, the employer can act in bad faith with immunity if the award is denied, since the Statute permits the attorney fee sanction only in a ease where the claimant is successful. The Industrial Board can only impose the attorney fee sanction against Josam for its acts of bad faith if compensation is awarded to Ross. The sanction provided for in this Statute is of no use in a pre-hearing discovery process nor was it ever intended to be. Its standards go to other matters.
The standards of this Statute concern “bad faith in adjusting and settling” of a claim and the failure of an employer to “pursue the settlement of said claim with diligence.” These are not discovery standards. They are not discovery standards, since they are without sanction if the claimant loses. They are not discovery standards *80because discovery is a “two-way street.” Only the employer is exposed to a sanction for acts of bad faith. Only the employer is addressed on matters solely within his control and discretion. This Statute has nothing to offer as a deterrent to bad faith discovery. It is a Statute which urges the employer to settle and adjust meritorious claims with diligence or suffer the sanction of additional attorney fees.
Even with the trial court’s order and sanction of attorney fees against Josam, a year expired from the time Ross filed his interrogatories to the time of the trial court’s judgment and sanction against Jos-am. This delay has protracted the litigation to unacceptable limits even with TR. 37(B) as a sanction. Other litigation too has been delayed by the involvement of the trial court in requiring Josam to answer Ross’s interrogatories. The Majority’s conclusion that Josam can repeat the process ad infinitum on each new discovery request without fear from the trial court or the' Board for that matter until the hearing is concluded — and not even then if Ross is unsuccessful in his claim for compensation — is unacceptable to me. I therefore dissent.