Opinion
W.C. Nos. 4-410-063, 4-410-555
January 25, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which found the claimant sustained two compensable injuries low back injuries and required them to pay medical and temporary total disability benefits. The respondents contend the ALJ erred in refusing to admit the respondents' documentary evidence under § 8-43-210 C.R.S. 1999. We disagree, and therefore, affirm the order.
The claimant alleged a low back injury on July 13, 1998, arising out of and in the course of his employment as a welder/fabricator at Rocky Mountain Steel Inc. (Rocky Mountain). The claimant alleged that he reinjured his back on February 8, 1999, while pushing a heavy steel plate. The respondents denied liability and the matter was scheduled for a full contest hearing before the ALJ.
At the commencement of the hearing, the claimant's counsel objected to the admission of certain documents which were offered by the respondents to prove that the claimant falsified the workers' compensation claim in retaliation for being denied a raise. The respondents argued the documents are "regularly kept" in the files of Rocky Mountain's employees. (Tr. p. 5). Therefore, the respondents argued that the disputed documents are "records of the employer" which are admissible under § 8-43-210 without formal identification. The ALJ was not persuaded that the documents constitute "records of the employer" within the meaning of § 8-43-210, and therefore, the ALJ refused to admit the records without evidence establishing their authenticity.
Thereafter, the respondents requested a continuance to secure witnesses who could formally identify the disputed documents. The ALJ denied the request based on his determination that the respondents failed to establish "good cause" for a continuance.
Crediting the claimant's testimony, the ALJ determined the claimant sustained his burden to prove he sustained compensable low back injuries on July 13, 1998, and February 8, 1999. Furthermore, in an order dated July 27, 1999, the ALJ awarded temporary disability and medical benefits. The respondents timely appealed.
I.
On review the respondents first contend the ALJ erred in refusing to admit the disputed reports. We disagree.
The excised documents include a) handwritten, unsigned notes dated October 19, 1998, February 4-8, 11, 16 23, 1999; b) handwritten notes signed by the secretary and acting general manager of Rocky Mountain, Pamela Cannell (Cannell); c) United States Department of Labor report dated February 8, 1999, concerning the circumstances surrounding the claimant's February 8 injury; d) a letter to the respondent-insurer from the claimant's supervisor, Bruce Bennett (Bennett) and Cannell concerning the employer's request that the claimant submit to a drug test; e) claimant's statement dated February 10, 1999, concerning the cause of the February 8 injury; f) a Performance Scale report dated February 5, 1999 signed by Bennett on February 8; g) Supervisor's Accident Investigation Report dated February 8, 1999, signed by Bennett.
The Performance Scale report indicates the claimant's poor performance as Safety Steward was the reason he was denied a raise. The claimant admitted he was angry he was denied a raise. ( See Tr. pp. 34-39). Therefore, we fail to perceive how the exclusion of the Performance Scale report prejudiced the respondents. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
The United States Department of Labor report and the claimant's written statement are consistent with the claimant's testimony that the February 8 industrial injury occurred while he was moving a heavy piece of steel without requesting assistance. ( See Tr. p. 40). Consequently, even if we assume the ALJ erred in excluding these documents, the error is harmless. Section 8-43-310, C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
Similarly, the respondents did not request the imposition of a safety violation penalty. See § 8-42-112(1), C.R.S. 1999. Neither did the respondents allege the claimant was intoxicated or under the influence of drugs at the time of the injury. Therefore, we are not persuaded that evidence concerning the respondent's request that the claimant submit to a drug test is relevant.
Moreover, Cannell was available to testify concerning the contents of the documents she authored. Therefore, the exclusion of these documents was harmless.
As to the remaining documents we agree with the ALJ's determination that the documents are not "records of the employer" within the meaning of § 8-43-210. That statute provides that:
"medical and hospital records, physicians' reports, vocational reports, and records of the employer are admissible as evidence and can be filed in the record as evidence without formal identification if relevant to any issue in the case." (Emphasis added).
Section 8-43-210 is an exception to the general rule that hearsay is not admissible. See Chambers v. CF I Steel Corp., 757 P.2d 1171 (Colo.App. 1988) (rules of evidence generally apply in workers' compensation proceedings); C.R.E. 801; Harwick v. Roche Construction, W.C. No. 3-970-327 (July 24, 1992). However, the exception is limited to the types of documentary evidence explicitly enumerated in § 8-43-210.
In Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996), the court concluded that there is a distinction between "records" and "reports." The respondents in Ackerman sought the admission of a physician's letter which contained the physician's opinion about the claimant's blood/alcohol level at the time of a work-related accident. The court held that the term "report" refers to a "formal statement or account of the results of an investigation." 914 P.2d at 526. The court concluded that the physician's opinions, which were based upon the results of toxicology tests, constituted a physician's "report," and therefore, held it was unnecessary to determine whether the physician's letter constituted a "medical record."
In Braden v. Integrated Health Services, W.C. No. 4-406-349 (December 21, 1999), we concluded that the statutory language in § 8-43-210 which permits the admission of vocational and physicians' "reports," but limits employers to offering "records," reflects the General Assembly's implicit determination that physician and vocational "reports" have indicia of reliability stemming from the author's professional status, which do not apply to employer "reports" of investigation. Whereas, employer "records" constitute a statutory exception to the hearsay rule because they are presumed to be created in the regular course of business operations. See C.R.E. 803(6).
Under the respondents' construction any information reduced to writing and maintained in a file and labeled a "business record" would be admissible without formal identification. Thus, the respondent could completely defend a claim through documentary evidence. Further, where, as here, the writing concerns statements made by third parties, the admission of the writing without formal identification effectively eliminates the claimant's right to cross-examine adverse witnesses. We do not believe the General Assembly intended this result and therefore, we reject the respondents' construction.
The respondents concede that the disputed documents concern the results of the employer's investigation of the claimant's alleged work-related injuries. It follows that the ALJ did not err in finding that the excised documents are not records of the employer which are admissible without formal identification. See Kieffer v. Albertson's Inc., W.C. No. 3-993-522 (November 21, 1991); Copeland v. City of Aurora, W.C. No. 3-907-084 et. al., (April 15, 1991) (claimant's identification of self on videotape was sufficient to establish foundation for tape's admission).
Moreover, we do not believe Churchill v. Sears, Roebuck Co., 720 P.2d 171 (Colo.App. 1986), compels a contrary result. In Churchill the court held that a letter written by an employer to a vocational counselor concerning the reasons the claimant's on-the-job vocational rehabilitation training program was terminated was admissible without formal identification. In so doing, the court concluded that the letter was both a "vocational report" and a "record of the employer."
Unlike this claim, the Churchill court was not confronted with documents from a whole scale investigation of a claim. Thus, the court was not required to resolve the argument presented here. In any case, the court found that the disputed letter was also a "vocational report," and it is well established that vocational experts may rely on hearsay information as long as it is the type reasonably relied upon by such experts in forming their opinions. C.R.E. 703; Chambers v. CF I Steel Corp., 757 P.2d 1171 (Colo.App. 1988). Accordingly, the disputed document in Churchill was admissible under § 8-43-210 even if it was not a record of the employer.
II.
Next, the respondents argue the ALJ's findings of fact are insufficient to ascertain whether the ALJ erred in denying their motion for a continuance. We disagree.
Section 8-43-207(1)(j), C.R.S. 1999, and the Rules of Procedure, Part VIII(J),7 Code Colo. Reg. 1101-3, at 27, allow an ALJ to continue a hearing to a later date upon a showing of "good cause" by the party seeking the continuance. In determining whether to grant a continuance, the ALJ should consider "the circumstances of the particular case, weighing the rights of the party requesting the continuance to a fair hearing against the prejudice that may result from delay." Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993).
The ALJ is vested with wide discretion in determining whether "good cause" has been established. Accordingly, we may not disturb the ALJ's order denying the motion for continuance in the absence of a clear showing of an abuse of discretion. Cherry Creek School District #5 v. Voelker, supra; Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
We have previously concluded that to permit meaningful review of an ALJ's order denying a motion for continuance, the ALJ must make findings and conclusions which are sufficient to indicate the basis of his decision. Section 8-43-301(8), C.R.S. 1999. For this reason, we have previously held that an ALJ's discretionary authority to determine the course of the proceedings does not relieve him of the obligation to articulate the basis of an order denying a continuance. See Vallot v. Krische Construction, W.C. No. 4-246-341 (September 11, 1997) ; Archuleta v. Gold Star Sausage Company, W.C. No. 4-246-350 (September 3, 1997); Mascarenas v. Brickwall Fire Protection, W.C. No. 4-019-793 (September 9, 1994); Libenson v. Cook Lee, P.C., W.C. No. 4-190-782 (August 18, 1994).
The ALJ's July 27 order does not contain any specific findings of fact concerning the ALJ's reasoning in finding the respondents failed to establish good cause for a continuance. However, the ALJ is presumed to have considered the pertinent factors and the basis for the ALJ's ruling is apparent from the oral ruling. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977); Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Therefore, we decline to remand the matter for additional findings of fact.
In support of their motion for a continuance the respondents' attorney stated that three additional witnesses would be necessary to present a foundation for the excised documents, and that some of the disputed documents contain statements provided by the claimant to these other witnesses. ( See Tr. p. 9). However, the respondents admitted that the third-party statements were "referenced" in other writings, and thus, the ALJ could reasonably infer that the disputed documents were cumulative.
Claimant's counsel stated, that:
"I don't see why the Claimant should have to suffer a delay on account of the Respondents' miscalculation and mistake about the admissibility of these reports. On many occasions the Court makes ruling on admissibility adverse to the Claimant, and we go forward with the hearing. So I think the evidence that is sought to be admitted here is post injury, its somebody told somebody something who wrote it down, and then its somehow supposed to assume the status of evidence. And I don't think that it was an unreasonable or shocking ruling by the Court that could not have been anticipated." (Tr. p. 11).
Claimant's counsel also indicated that the claimant opposed the continuance because he had the testimony of two out of town witnesses to present.
The ALJ recognized that the disputed documents were "basically third-party references." (Tr. p. 10). Therefore, the ALJ was not persuaded that the prejudice to the claimant was outweighed by the potential probative value of the disputed documents. Under these circumstances, we cannot say the ALJ abused his discretion in denying the continuance.
III.
Finally, the respondents contend the ALJ erred in failing to allow Cannell's testimony concerning the results of the employer's investigation of the claimant's work-related injuries. Again we perceive no reversible error.
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).
Here, the respondents sought to introduce statements by the claimant's co-workers through Cannell on grounds that Cannell is the "conduit" of all information to the employer. Counsel for the claimant objected on grounds that the preferred testimony was hearsay.
The respondents' arguments notwithstanding, it is clear from the transcript that the ALJ sustained the objection on the grounds of hearsay. (Tr. p. 63). Specifically, the ALJ limited the claimant's testimony to information which was based on her personal knowledge and precluded her from testifying based on conversations with others in the company. Furthermore, the ALJ was not persuaded by the respondents' argument that Cannell could "speak for the company" because she is the "conduit through which all information of the company flows." (Tr. p. 66).
We agree with the claimant's counsel that the excluded testimony concerning the claimant's statements to co-workers is hearsay and there is no "conduit" exception to the hearsay rules. Therefore, the ALJ's order excluding Cannell's testimony was not an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ's order dated July 27, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Robert M. Socolofsky
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed January 25, 2000 to the following parties:
Robert A. Beck, 71 1700 Rd., Delta, CO 81416
Rocky Mountain Steel, Inc., P.O. Box 486, Olathe, CO 81425-0486
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
David L. Smith, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: LE