Opinion
W.C. No. 4-208-354
July 17, 1996
ORDER OF REMAND
The respondent seeks review of two orders of Administrative Law Judge Wheelock (ALJ). The first order was entered on July 29, 1994, and the second, a supplemental order, was dated September 13, 1994. The cumulative effect of these orders was to determine that the claimant suffered compensable psychological injuries resulting from a sexual assault occurring in the work place. We set the orders aside and remand for further proceedings.
Initially, we note that this matter is before us pursuant to a remand from the court of appeals in Oberle v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0934, May 2, 1996). The court's opinion contains a statement of most of the relevant facts, and we will not repeat them here.
However, it is necessary to recount certain events during the hearing before the ALJ, involving the respondent's cross-examination of the claimant. Counsel for the respondent asked the claimant whether she moved to Limon, Colorado because she was "corresponding with and having a relationship with a man in jail there." The claimant replied that the man was a "friend" and that she "didn't even see him anymore." Claimant's counsel then objected and the ALJ replied that she did not see the relevance of the question. Counsel for the respondent then stated that "one of the things in this lady's life, she has had a number of serial relationships, over the years," and counsel stated that he believed this was a source of stress. (Tr. Vol. II, p. 146). The following colloquy then occurred:
"Q. (By Mr. Morgan) In the past two years, how many boyfriends would you say you have had?
Mr. Mullens: Object, your honor. Relevance.
The Court: And what relevance does that have?
Mr. Morgan: Well, because I think a large part of her emotional upset is because she suffered three or four break-ups.
The Court: Well, hasn't everybody? I don't think that's a reasonable question." (Tr. Vol. II p. 147).
On review, the respondent contends that the ALJ improperly restricted the scope of cross-examination by prohibiting counsel from inquiring into the claimant's relationships as a potential source of stress. The respondent argues that inquiry into this area was relevant to the issue of whether the claimant suffered from stress which was "primarily" caused by the assault. We agree, and therefore, remand to permit further cross-examination of the claimant.
Compensation is payable for an "injury" arising out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. (1995 Cum. Supp.). Under § 8-41-302(1), C.R.S. (1995 Cum. Supp.), the terms " accident," "injury," and "occupational disease" are defined so as to exclude "disability or death caused by or resulting from mental or emotional stress unless it is shown by competent evidence that such mental or emotional stress is proximately caused solely by hazards to which the worker would not have been equally exposed outside the employment."
In Young v. Industrial Claim Appeals Office, 860 P.2d 591 (Colo.App. 1993), and General Cable v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994), the court of appeals interpreted this provision to mean that a claim based on emotional stress is not compensable unless the stress which caused the injury arose "primarily" in the work place. Under this rule, the claimant is not disqualified from receiving benefits merely because she has experienced stress in her personal life, or suffers from a pre-existing emotional problem. However, the existence of personal stress is certainly relevant in determining whether the stress condition is more attributable to the conditions of employment or the claimant's personal life. See Young v. Industrial Claim Appeals Office, supra.
It follows that counsel for the respondent was seeking relevant information when he inquired into the number of "boyfriends" the claimant had associated with over the past two years. See C.R.E. 401 (relevant evidence is 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"). Counsel's remarks to the ALJ suggest that he possessed information indicating that the claimant had a "series" of failed relationships. One plausible inference to be drawn from such evidence would be that the claimant suffered from a stressful personal life. Further, claimant herself admitted to having some type of past relationship with a "man in jail." (Tr. Vol. II, p. 146).
Moreover, we agree with the respondent that the ALJ abused her discretion in restricting cross-examination under these circumstances. Under C.R.E. 611(b), cross-examination "should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." However, this rule "does not limit cross-examination to the same acts and facts to which a witness has testified on direct examination; rather, it must be liberally construed to permit cross-examination on any matter germane to the direct examination, qualifying or destroying it, or tending to elucidate, modify, explain, contradict or rebut testimony given by the witness." People v. Sallis, 857 P.2d 572 (Colo.App. 1993).
In this case, the claimant testified on direct examination that she believed the sexual assault at work was the primary reason for her stress-related disability. (Tr. Vol. II, pp. 139-140). Evidence that the claimant suffered a series of failed, personal relationships prior to the assault, if credited, might undermine the credibility of the claimant's testimony on this issue. Consequently, the ALJ erred in unduly restricting cross-examination.
In reaching this result we do not mean to suggest that ALJs lack discretion to protect a claimant or any other witness from humiliation or embarrassment by reasonably limiting the scope of cross-examination. However, this record does not demonstrate that counsel for the respondent crossed the boundaries of propriety. Further, the ALJ might have evaluated the testimony of the claimant's expert differently if the respondent had been afforded an adequate cross-examination. Consequently, we cannot say the error was harmless.
Under these circumstances, the matter must be remanded to the ALJ for an additional hearing to permit respondent's counsel to cross-examine the claimant concerning the alleged relationships. The claimant should be afforded the opportunity to present rebuttal evidence if desired. In light of this disposition we need not address the respondents' additional arguments at this time.
IT IS THEREFORE ORDERED that the ALJ's orders dated July 29, 1994, and September 13, 1994, are set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1990 Cum. Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Tonja S. Oberle, 6671 Valley Park Dr., Memphis, TN 38115
J.K. Patel Hansa Patel d/b/a Limon Inn 4 Less, P.O. Box 497, Limon, CO 80828-0497
Steven U. Mullens, Esq. 90 S. Cascade Ave., Ste. 300, Colorado Springs, CO 80903 (For the Claimant)
Ralph Ogden, Esq., 1750 Gilpin St., Denver, CO 80218 (For the Claimant)
Peter E. Morgan, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209-3014 (For the Respondent)
Mary K. Maldonado, Assistant Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203
By: ________________________