Opinion
W.C. No. 4-739-048.
April 2, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated September 24, 2008, that denied and dismissed the claimant claim for workers' compensation benefits. We affirm.
The claimant alleged that she was involved in a work-related motor vehicle accident on October 21, 2006 while she was driving to attend a meeting for her employer in Georgetown, Colorado. The claimant testified that her car was hit by a snowplow. The claimant testified that her car mirror on the driver's side was hit by the snowplow and she subsequently learned that she must have hit a construction barrier during the accident, causing damage to the passenger side of her car. The respondents contended that the claimant was not involved in a motor vehicle accident on October 21, 2006 while driving to work, and if there was an accident, it occurred at some different date or time when the claimant was not working. Both parties presented opinions from accident reconstruction experts. The expert for the respondents opined that the description of the accident provided by the claimant was inconsistent with the damage to her car and the ALJ found this opinion to be credible and persuasive.
The ALJ also found that the claimant's testimony regarding how the accident occurred was not credible. Crediting the testimony of the respondents' expert, the ALJ concluded that the claimant was not involved in an accident with the snowplow while driving to work on October 21, 2006. The ALJ therefore denied and dismissed the claim. The claimant appealed the order and argues that the ALJ made improper evidentiary rulings that affected her decision on the merits and therefore the order must be set aside. We disagree that the ALJ committed any reversible error.
I.
The claimant first contends that the ALJ erred in allowing the respondents to present evidence concerning the existence and pursuit of a potential third-party claim arising from the alleged automobile accident. The claimant objected to evidence presented through a risk analyst for Jefferson County and a claims adjuster who works on behalf of the Colorado Department of Transportation (CDOT). The risk analyst for Jefferson County testified that no snowplow drivers reported an incident on the day in question. The claims adjuster for CDOT testified that there was no active claim proceeding against CDOT by the claimant. The claimant argues that both the claims adjuster and the risk analyst were not qualified as an expert and that they both testified to matters that were beyond their personal knowledge in violation of CRE 602.
CRE 602 provides that:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
The Colorado Supreme Court has determined that the personal-knowledge requirement under CRE 602 may be inferred from sources other than the witness, and from the total circumstances surrounding the matter that is the subject of the witness's testimony. Burlington Northern R. Co. v. Hood 802 P.2d 458 (Colo. 1990). Thus, as long as there is evidence before the ALJ such that she could reasonably find that the witness had personal knowledge of the event to which the witness is about to testify, the witness should be permitted to testify. Burlington Northern R. Co. v. Hood supra. The questions of credibility and weight are, of course, left for the ALJ to resolve.
Here the claims adjuster testified that he handled a potential claim against CDOT filed by the claimant. Tr. (8/11/2008) at 78-79. The claims adjuster testified that no claim or lawsuit had been pursued. Tr. (8/11/2008) at 79-80. The risk analyst for Jefferson County testified that she received and then handled a notice of claim from the claimant's attorney involving allegations of a snowplow incident. Tr. (8/11/2008) at 72-73. The risk analyst investigated the claim and pulled records to see if any county snowplows were out snowplowing in the area and if they had any records of any reported incidents or accidents in the area. Tr. (8/11/2008) at 73. The risk analyst found no evidence that any of Jefferson County snowplows were in the area and none had been involved in an accident on the day in question. Tr. (8/11/2008) at 75. On cross-examination the risk analyst confirmed that her investigation revealed that no snowplow driver from Jefferson County had reported an incident on the day in question. Tr. (8/11/2008) at 76.
We are not persuaded by the claimant's contention that the ALJ erroneously admitted into evidence testimony that was not based on the witnesses' personal knowledge in violation of CRE 602. The Colorado Rules of Evidence apply to workers' compensation claims. Section 8-43-210 C.R.S. 2008. However, evidentiary determinations are within the ALJ's discretion. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). Lopez v. American Lumber Construction, W. C. No. 4-434-488 (October 29, 2003). 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).
In our opinion, the testimony of the claims adjuster could reasonably be viewed as based on his direct personal knowledge regarding whether a claim or lawsuit had been pursued against his client. Further, the testimony of the risk analyst can be viewed as establishing that after her investigation of the claim she would have personal information about whether any Jefferson County snowplows were in the area and whether any had been reported as being involved in an accident. Therefore, the ALJ did not abuse her discretion in allowing this testimony.
The claimant's reliance on Graham v. Lombardi, 784 P.2d 813 (Colo.App. 1989), aff d, 794 P.2d 610 (Colo. 1990) does not persuade us otherwise. In Graham the court held that a police officer who had no first-hand knowledge of arrestee's prior altercations with police was not qualified to give a lay opinion as to arrestee's character for violence. In contrast to Graham, here there was no attempt to introduce the opinions of the claims adjuster or risk analyst. Rather the evidence here was merely a factual description of whether claims had been pursued or whether any snowplows had been reported as being involved in an accident at the relevant time. In our view, Graham has no application here and we perceive no error in the ALJ's allowance into evidence the testimony of the claims adjuster and the risk analyst.
II.
The claimant next argues that the ALJ improperly admitted fault based evidence on the status of potential third-party cases. The claimant argues that in general "fault" is not relevant to the issue of compensability under the Workers' Compensation Act (Act). The claimant argues that the status of a claim by the claimant's own auto insurance company for damages to the claimant's car against a potential third party has no bearing on the compensability issue before the ALJ. The claimant argues that there are a number of valid reasons why a decision not to pursue a claim for damages to the claimant's car which would have nothing to do with whether or not the accident took place as testified to by the claimant. The claimant argues that the status of any third-party claim against Jefferson County or CDOT is similarly irrelevant.
We do not dispute the general no fault nature of the Act. However, we do not view the ALJ's evidentiary ruling as introducing fault considerations into the Act. As noted by the claimant the respondents' primary defense to compensability was that the accident did not occur as alleged by the claimant. The issue is not the liability of the respondents under the Act regardless of the claimant's fault under civil law doctrines. Rather the issue as we see it was whether the ALJ could consider evidence regarding pursuit of third party tort-feasors as reflecting on whether the accident occurred as described by the claimant.
Pursuant to CRE 402, all relevant evidence, subject to certain exceptions, is admissible, and evidence which is not relevant is not admissible. Under CRE 401, relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Section 8-43-210, C.R.S. 2008 (rules of evidence for district courts applicable to workers' compensation hearings). We cannot say as a matter of law that evidence showing that neither the claimant nor her auto insurance company pursued claims against third parties who would be liable for damage to the claimant's car or personal injury to the claimant if the claimant's description of her alleged accident was credible is irrelevant. In our view, evidence from the claims adjuster and the risk analyst can be seen as having a tendency to establish whether the claimed accident occurred more or less probable than it would be without the evidence. Therefore, in our view the evidence was relevant. CRE 401.
In our view, the ALJ did not abuse her discretion in considering evidence, that no snowplow drivers reported an incident on the day in question and evidence that there was no active claim proceeding against possible liable third parties by the claimant or the claimant's auto carrier. The ALJ did not abuse her discretion in considering such evidence pertinent to the credibility of the claimant's testimony that she suffered a work-related injury by being struck by a snowplow.
IT IS THEREFORE ORDERED that the ALJ's order dated September 24, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant CAROLINE HARRISON, PINE, CO, (Claimant).
WEIGHT WATCHERS INTERNATIONAL, NEW YORK, NY, (Employer).
TRAVELERS INDEMNITY COMPANY, Attn: DIANE GUTIERREZ, C/O: ST PAUL TRAVELERS, DENVER, CO, (Insurer).
THE ELLIOTT LAW OFFICES, Attn: MARK D ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
WEIGHT WATCHERS INTERNATIONAL, JERICHO, NY, (Other Party).