Opinion
No. 74-411
Decided April 1, 1975. Rehearing denied April 22, 1975. Certiorari granted June 16, 1975.
Having been denied his claim for benefits under Occupational Disease Disability Act, claimant sought review.
Order Set Aside
1. WORKERS' COMPENSATION — Hearsay Testimony — Admissible — Corroborative Evidence — Required. While, in a workmen's compensation proceeding before the Industrial Commission, the admission of hearsay testimony is not error per se, such testimony may not be relied upon unless corroborated by evidence generally recognized as admissible by common law.
2. Summarization of Testimony — Not A Finding — Insufficient — Determination — Conclusion Supports Order. A summarization of the testimony of a witness amounts to a recital of the evidence taken and thus is not a finding; therefore, in workmen's compensation proceedings, where order merely contains summarization of witnesses' testimony, there was no finding as to the cause of claimants condition; and hence, it was not possible to determine whether the Commission's conclusion supports its order.
Review of Order from the Industrial Commission of the State of Colorado
Michael R. Homyak, for petitioner.
John D. MacFarlane, Attorney General, Jean Dubofsky, Deputy Attorney General, Peter L. Dye, Assistant Attorney General, for respondents Industrial Commission of the State of Colorado and James M. Shaffer, Director of Department of Labor and Employment.
Zarlengo, Mott Zarlengo, Albert E. Zarlengo, Jr., for respondents American Coleman Company and Liberty Mutual Insurance Company.
Petitioner, John Korczak (claimant), seeks this review of an order of the Industrial Commission denying his claim for benefits.
The record reflects that claimant was employed by respondent American Coleman Company as a radial drill operator from September 11, 1959, through June 4, 1971. Respondent Liberty Mutual Insurance Company provides compensation insurance for American Coleman.
Claimant's duties required him to work inside a building approximately 200 feet by 300 feet in size. Forklifts were operated inside the building for the purpose of moving heavy objects to various locations. Prior to 1969, the forklifts were propelled by gasoline fueled engines. Subsequent to 1969, the fuel was converted from gasoline to propane.
According to claimant, he first complained about fumes from the forklift engines to American Coleman in 1963. Beginning in 1966 claimant was treated by his family doctor for respiratory infection and sore throat of prolonged duration. At approximately that time he began to suffer symptoms of faintness, dizziness, difficulty in breathing and sleeping, excessive sweating, as well as the respiratory irritation. According to claimant, the symptoms became more aggravated over the years until the termination of his employment in 1971. Claimant suffers from hypertension, hypertensive vascular disease, massive substernal thyroid tumor, and other physical ailments which render him unable to work.
Claimant filed a claim with the Industrial Commission on September 1, 1971, seeking an award of benefits for carbon monoxide poisoning under the Occupational Disease Disability Act. See § 8-69-109 (1) (p), C.R.S. 1973.
Three evidentiary hearings were held before a referee between July of 1972 and January of 1973. At the initial hearing, claimant testified that he was exposed to carbon monoxide from the forklifts on a continual basis and attributed all of his present disability to that condition. American Coleman presented testimony from its president to the effect that the building where claimant worked had windows and doors which could be opened for cross-ventilation. In the summertime, apparently all of the windows and doors were left open to supply ventilation. In the wintertime, the doors were usually closed and some of the windows left open.
Testimony was also presented from a "safety engineer" employed by Liberty Mutual Insurance Company. He testified that shortly after claimant was terminated at American Coleman in June of 1971 he tested the building on one occasion for carbon monoxide during working hours. The testing was conducted with an "MSA," which is a small machine designed for that purpose. The witness took readings on the MSA over a three-hour period, and the readings indicated "ten parts per million" of carbon monoxide in the air immediately after the forklift passed by the area where claimant had previously worked. At the time the witness conducted his testing, the doors and windows were open, and he noted good cross-ventilation. No tests were conducted with the doors closed as they usually were in wintertime.
According to the witness, there are "threshold limit values" established by "American Standards" and according to those standards, the carbon monoxide present in the plant at the time of testing was not in excess of the limits established thereby. At no time did the witness identify the author, source of information, or basis of "American Standards." Claimant made timely objections both as to the qualifications of the witness, the method of conducting the tests, and the admissibility of his opinion as to the safe level of carbon monoxide.
Claimant presented the testimony of his family doctor, another physician specializing in internal medicine, and a clinical psychologist relative to his present disability and its derivation from carbon monoxide poisoning. American Coleman presented the testimony of a physician who had never examined claimant and a physician specializing in internal medicine whose testimony was in conflict with that of claimant's doctors.
In his order, the referee summarized, but did not otherwise comment upon, the testimony of the clinical psychologist and the testimony of the internist called by claimant. The referee also summarized the testimony of respondents' internist. The testimony of the other physicians was not referred to in the order.
Relative to the safety engineer, the referee's order states:
"The only evidence of the existence of carbon monoxide at claimant's place of employment other than claimant's assertions was introduced by the respondent carrier and establishes that the concentrations of carbon monoxide were well under recognized safe thresholds.
"Claimant insists that the foregoing conditions were extremely hazardous. However, investigation of the conditions at claimant's place of employment by an expert indicates that no dangerous concentrations of carbon monoxide existed, at least when the expert was there."
Following the summarization of some of the medical testimony and the findings based on the testimony of the safety engineer, the order states:
"From this evidence the Referee concludes:
(1) That claimant's problems are unrelated to any work-related exposure to carbon monoxide or other noxious inhalants . . . . "
Claimant appealed the referee's order to the Industrial Commission which approved and adopted the findings and order of the referee. In this review, claimant contends, inter alia, that the Commission erred in considering the testimony of the safety engineer to establish that the level of carbon monoxide in the building was "well under recognized safe thresholds." We agree.
This conclusion of the safety engineer is based on "American Standards" which is apparently a publication prepared by someone other than the witness and not otherwise identified or verified in the record. Hence, the safety engineer's conclusion is based on hearsay. See Walsen v. Gaddis, 118 Colo. 63, 194 P.2d 306; 2 B. Jones, Evidence § 14:22 (S. Gard 6th ed.).
[1] While the admission of hearsay testimony is not error per se in a proceeding before the Commission, it may not be relied upon unless corroborated by evidence generally recognized as admissible by common law. Johnson v. Industrial Commission, 137 Colo. 591, 328 P.2d 384; Olivas v. Industrial Commission, 33 Colo. App. 78, 515 P.2d 110. No other evidence was offered to establish that the carbon monoxide levels in the building did not exceed a safe level. Hence, the Commission erred in relying upon the safety engineer's opinion to reach its conclusion on this issue.
Respondents contend that the Commission's order should be affirmed because the findings otherwise support the conclusion that claimant's disability is unrelated to exposure to carbon monoxide. This contention is without merit.
The testimony of the physicians was in sharp conflict as to whether claimant's present condition was caused by exposure to carbon monoxide.
[2] A summarization of the testimony of a witness amounts to a recital of the evidence taken and thus is not a finding. See State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716. Absent a finding as to the cause of claimant's condition, we are unable to say that the Commission's conclusion supports its order in this case. See Alvin H. Watkins, Inc. v. Hamilton, 159 Colo. 257, 411 P.2d 15.
The referee entered findings and order in this case more than one year after the final evidentiary hearing and after three requests for such action had been made in writing by counsel for the respective parties. There is no explanation in the record for this unusual delay. Claimant asserts that this delay was prejudicial and should result in reversal of the Commission's order. Since the case must be remanded for the reasons given above, we need not address that issue. However, we do not approve the delay which occurred in this case. See Hildreth v. Director of the Division of Labor, 184 Colo. 259, 520 P.2d 112.
The order of the Commission is set aside, and the cause is remanded to the Commission for further proceedings in conformity with the views herein expressed.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.