Summary
In Braden v. Integrated Health Services, W.C. No. 4-406-349 (December 21, 1999), we concluded that the General Assembly intended to allow the automatic admission of physician's reports based on an implicit determination that such reports have indicia of reliability that is absent in other documentary evidence.
Summary of this case from In re Lopez, W.C. NoOpinion
W.C. No. 4-406-349
December 21, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant suffered a compensable neck injury and required them to pay workers' compensation benefits. We affirm.
The ALJ found the claimant suffered a neck injury arising out of and in the course of her employment as a certified nurse's aide for Integrated Health Services (employer). The ALJ found the claimant experienced an immediate onset of neck pain on December 20, 1998, while moving a resident from a bed to a wheelchair. On December 23, 1998, the claimant filed a written injury report listing the date of injury as December 17, 1998. However, the ALJ credited the claimant's testimony that she subsequently realized the actual injury occurred on December 20, 1998. Consequently, the ALJ ordered the respondents to pay for authorized medical treatment of the injury.
I.
On review, the respondents contend the ALJ erroneously excluded several written witness statements which were filed in accordance with Rule VIII(I)(1), 7 Code Colo. Reg. 1101-3 at 26 (submission of reports or other documentary evidence for formal hearing). The respondents argue that the ALJ's order is contrary to § 8-43-210, C.R.S. 1999, and that the ALJ deprived them of due process of law. We disagree.
Section 8-43-210 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 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.
Here, the respondents sought the admission of several handwritten statements from co-workers of the claimant which indicated, inter alia, that the claimant insisted that the injury occurred on December 17, 1998, and that the claimant complained of neck pain prior to December 20, 1998. The respondents' counsel argued that the handwritten statements were self-authenticated "records of the employer" and thus admissible under § 8-43-210. The claimant objected.
The ALJ was not persuaded that the statements constitute "records of the employer," and therefore, ruled that the documents were not admissible without formal identification. We agree with the ALJ.
Contrary to the respondents' arguments, the General Assembly expressly qualified the type of employment documents which are admissible without formal identification. The legislature limited the exception to "records" of the employer. 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."
We believe that the statutory language, 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. In our view, employer "records" constitute a statutory exception to the hearsay rule because they are presumed to be created in the regular course of business operations, and not generated for the sole purpose of defending workers' compensation claims. See Churchill v. Sears, Roebuck Co., 720 P.2d 171 (Colo.App. 1986) (letter written by the employer to vocational counselor concerning the reasons the claimant's employment was terminated was admissible without formal identification as a "vocational report" and "record of the employer"). It is apparent the General Assembly was not confident that "reports" generated by an employer concerning the results of an investigation contain the same indicia of reliability as "reports" generated by third party medical and vocational experts. Thus, in the absence of formal identification, § 8-43-210 does not allow employers to introduce written "reports" of witnesses as a substitute for testimony under the guise of "employer records."
We therefore agree with the ALJ's implicit determination that the disputed statements are not "records of the employer." Instead, the statements are akin to "reports" generated as a result of the employer's investigation of the claim for workers' compensation benefits. See Underhill v. Ready Mix Concrete Co., W.C. No. 4-217-697 (November 17, 1995) (employer videotaped reenactment of the claimant's work-related accident is not an employer record); Snider v. Holiday Inn, W.C. No. 3-785-726 (June 24, 1988). It follows that the ALJ did not err in requiring the statements to be formally identified. 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 tapes admission).
Insofar as the respondents were not prepared to offer testimony to authenticate the statements, we note that they did not request a continuance. Under these circumstances, the respondents due process rights were not compromised.
II.
The respondents also contend that the claimant's testimony is incredible as a matter of law. Therefore, they argue there is not substantial evidence in the record to support the ALJ's finding of a compensable injury. Again, we disagree.
A claimant's testimony is not incredible as a matter of law unless it is overwhelmingly rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Furthermore, inconsistent, contradictory and incomplete testimony is not uncommon in the adversary process, and the existence of such testimony does not compel an adverse credibility determination. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication).
The claimant initially alleged an injury on December 17, 1998. However, the claimant testified that she was "confused" and later realized she did not work on December 17 or December 18, and therefore, she determined the injury must have occurred on December 19 or 20. (Tr. pp. 16, 23, 24).
The record supports the claimant's statement that she did not work on December 17 or 18 and returned to work on December 19. (Tr. p. 38). Further, the respondents did not present any evidence which directly refutes the claimant's statement that she hurt her neck while lifting a patient on December 20. Under these circumstances, we cannot say the claimant's testimony was so overwhelmingly rebutted that the ALJ was compelled to discredit it.
IT IS THEREFORE ORDERED that the ALJ's order dated July 1, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Examiner Halsey specially concurs: I am not persuaded that the documents in issue could not be "employer records," as meant by § 8-43-210, C.R.S. 1999. As I read Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996), the court did not determine that a "record" could not be comprised of the results of an investigation, but declined to determine whether the "report" at issue in that case could be a "record" as well as a "report." See also Churchhill v. Sears, Roebuck Co., 720 P.2d 171 (Colo.App. 1986). Further, the Ackermann court specifically declined to limit the type of reports which were admissible without formal identification under the statute, finding no support in the statute for such a limitation.
However, as I understand § 8-43-210, it correlates to C.R.S. 803(6), which requires that the record be kept in the course of a regularly conducted business activity, and that it be the regular practice of that business activity to make the record. Although I believe that a reasonable employer could make it a regular business practice to gather and keep records of witness statements in the ordinary course of processing a workers' compensation claim, cf. Underhill v. Ready Mix Concrete Co., W.C. No. 4-217-697 (November 17, 1995); Snider v. Holiday Inn, W.C. No. 3-785-726 (June 24, 1988); the respondents did not contend that the statements here were kept in the course of regularly conducted business or that it was the employer's regular practice to obtain such statements. I would affirm the ALJ's evidentiary ruling on that basis.
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 December 21, 1999 to the following parties:
Linda L. Braden, 514 Arrowleaf Dr., Grand Junction, CO 81520
Integrated Health Services, 2825 Patterson Rd., Grand Junction, CO 81506
Integrated Health Services, Bill Spiegel, Lockton Insurance Brokers, Inc., 725 S. Figueroa St., 35th floor, Los Angeles, CA 90017
Amy Gerelick, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., #305, Englewood, CO 80111
Stephanie J. Stevenson, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For Claimant)
Kathleen M. North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy