Opinion
W.C. No. 4-434-488.
October 29, 2003.
FINAL ORDER
The claimants seek review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed their claim for workers' compensation benefits for the decedent's death during a recreational activity. We affirm.
Sections 8-41-301(1)(b) and (c), C.R.S. 2002, condition the recovery of workers' compensation death benefits on a determination that the decedent's death was proximately caused by an injury which arose out of and in the course of the "employee's employment." Section 8-40-201(8), C.R.S. 2002, defines the term "employment" to exclude "the employee's participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program." Similarly, the term "employee" excludes any person "while participating in recreational activity, who at such time is relieved of and is not performing any duties of employment." Section 8-40-301(1), C.R.S. 2002.
The determination of whether an activity was "recreational," and whether the claimant's participation was "voluntary," are questions of fact for resolution by the ALJ. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000); Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Because these issues are factual in nature, we must uphold the ALJ's findings if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
On conflicting evidence, the ALJ found that Jay Nelson (Nelson), a manager of American Lumber Construction (American), established an annual weekend camping trip for employees. The logistics of the camping trip were explained to employees during a work break, and employees were encouraged to attend. The trip was promoted as an opportunity for employees to socialize and get to know each other. Nelson and American's owner donated food. Other employees provided recreational equipment including a canoe. Employees were asked to pay $5 each toward the cost of the renting the campsite.
The decedent drove to the campsite on Friday night with other three other employees. On Saturday the decedent drowned during a canoe trip. The claimants thereafter applied for workers' compensation death benefits.
The ALJ determined Nelson promoted the camping trip but did not cajole or threaten employees to attend and American did not sponsor or financially support the trip. The ALJ also found that few employees attended the camping trip, that Nelson was the only manager to attend, and there was no negative consequence for an employee's failure to participate in the camping trip. Based on these findings, the ALJ determined the decedent's participation was voluntary and that a reasonable employee under similar circumstances would have understood the camping trip to be a voluntary recreational activity. Consequently, the ALJ determined the claimants failed to prove the decedent's death arose out of the employment.
On appeal the claimants assert general allegations of error under § 8-43-301(8). The claimants also contend the ALJ erroneously excluded testimony from the decedent's widow concerning whether the decedent thought his attendance at the camping trip was voluntary. We perceive no reversible error.
Initially, we note that the claimants' Designation of Record includes the "entire file maintained by the" Division of Workers' Compensation. The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file, and our review is limited to the evidentiary record before the ALJ. There is no evidence in the record which tends to suggest the claimants requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but have restricted our review to the record made at the hearing.
Under § 8-43-301(8) we are precluded from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law. Here, the ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). The findings are also supported by substantial, albeit conflicting evidence in the record. Consequently, they are binding on review. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Furthermore, the findings support the conclusion the claimants failed to sustain their burden to prove entitlement to death benefits. See §§ 8-41-301(1)(c) and 8-42-115, C.R.S. 2002.
We are not persuaded by the claimants' contention that the ALJ erroneously excluded testimony by the alleged widow of the decedent. The Colorado Rules of Evidence (CRE) apply to workers' compensation claims. Section 8-43-210 C.R.S. 2002. However, evidentiary determinations are within the ALJ's discretion. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). Consequently, we may not interfere with the ALJ's ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard for an abuse of discretion is whether the ruling is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
On direct examination, the claimants sought to introduce evidence that the decedent had a conversation with his spouse concerning whether he was attending the camping trip voluntarily. (Tr. March 11, 2003, p. 18). The respondents objected on grounds the proffered testimony was inadmissible hearsay.
CRE 801 defines "hearsay" as a statement made by a person outside the hearing and offered to prove the truth of a matter asserted in the statement. Hearsay is generally inadmissible as evidence, but the rules provide several exceptions. Insofar as pertinent here, CRE 803(3) provides that the following testimony is not excluded by the hearsay rule:
A statement of the declarant's state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Relying on CRE 803(3) and Stephen Equipment Company v. Baca, 703 P.2d 1332 (1985), the claimants argued the disputed testimony is an exception to the hearsay rule. The respondents argued the proffered testimony did not reflect the decedent's state of mind and did not reflect evidence of an intent, plan or motive. Rather, they argued the disputed testimony was being offered to prove the truth of whether the decedent believed participation in the camping trip was voluntary. The ALJ agreed with the respondents and precluded the proffered testimony. (Tr. March 11, 2003, pp. 12, 22).
The claimants contend Stephen Equipment is factually indistinguishable from the circumstances presented here. Therefore, the claimants argue the ALJ's exclusion of the widow's testimony was an abuse of discretion. We disagree.
We note the respondents' contention that there is no basis for our review of this issue because the claimants failed to make an offer of proof concerning the excluded testimony as required by CRE 103(a)(2). However, CRE 103(a)(2) also provides that an offer of proof is not required if the substance of the excluded evidence is "apparent from the context within which questions were asked." Here it is obvious the claimants sought evidence that the decedent told his spouse he was required to attend the camping trip. Therefore, we shall address the claimants' substantive argument.
In Stephen Equipment Company v. Baca, supra, the decedent suffered a fatal heart attack while attempting to load a 150-pound tool chest into his truck. The issue was whether the physical exertion which precipitated the heart attack was causally related to the employment. The decedent's widow and a co-worker testified that the decedent intended to take the tool chest to work for use by his co-workers. The court held that in the absence of evidence indicating an ulterior purpose for the decedent's statement, the testimony concerning the decedent's "then existing intention" was an exception to the hearsay rule under CRE 803(3).
Here, unlike Stephen Equipment, there is no dispute the decedent had an intention, plan or design to participate in the camping trip by riding to the campsite with his co-workers. Further, the ALJ reasonably inferred that the alleged widow of the decedent was actually being asked whether the decedent believed he was required to attend the camping trip. Under these circumstances, we cannot say the ALJ abused his discretion in ruling that the proffered testimony concerned a statement of the decedent's belief concerning a past event which is excluded by CRE 803(3). See People v. Carlson, 712 P.2d 1018 (Colo. 1986).
Finally, we reject the claimants' contention that exclusion of the proffered testimony deprived them of any opportunity to establish that the decedent's attendance at the camping trip was not voluntary. Raul Lopez, a co-worker who attended the camping trip, testified that the trip was mandatory. ( See Tr. January 23, 2003, p. 63).
IT IS THEREFORE ORDERED that the ALJ's order dated April 29, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 29, 2003 to the following parties:
Maricela Mendez Tostado, 4308 Raritan St., Denver, CO 80211
American Lumber Construction, 5920 Lamar St., Arvada, CO 80003
ACE Fire Underwriters Insurance Co., P.O. Box 911, Portland, OR 97207-0911
Robert M. Maes, Esq., 1610 Gaylord St., Denver, CO 80206 (For Claimant)
Richard A. Bovarnick, Esq. and Gary L. Fleming, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Hurtado