Opinion
W.C. Nos. 4-414-252 4-414-253
October 30, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) which determined the claimant suffered a compensable injury and required the respondents to pay workers' compensation benefits. The respondents contend the ALJ erroneously excluded an audiotape offered by the respondents to impeach the claimant's testimony. We perceive no reversible error and, therefore, affirm.
The claimant suffered admitted injuries on December 1, 1999, when she fell to the floor and landed on her back and head. The claimant alleged the accident caused a closed head injury. The claimant's employment terminated March 17, 1999. On cross-examination the respondents' offered an audiotape which allegedly contained a message left by the claimant on an answering machine. The claimant's attorney objected on the grounds of surprise. (Tr. p. 54). The respondents' counsel argued that there is no rule requiring advance disclosure of audio recordings. The ALJ excluded the audiotape on "basic fairness grounds." (Tr. p. 57).
At the conclusion of the hearing the ALJ found the claimant sustained her burden to prove she suffered a compensable closed head injury, which resulted in headaches and blurred vision. The ALJ entered specific findings of fact on January 11, 2000, which required the respondents to pay temporary disability and medical benefits.
On review, the respondents contend the ALJ implicitly excluded the audiotape as a sanction for the violation of permitted discovery under § 8-43-207(1)(e), C.R.S. 2000. Because there was no "permitted discovery," the respondents argue the ALJ erroneously determined there was a discovery violation. Furthermore, the respondents contend the ALJ failed to determine whether there was a "willful failure to comply with discovery" as required to support the imposition of sanctions under § 8-43-207(1)(e) and C.R.C.P. 37. In support, the respondents rely on our conclusions in Hernandez v. Longmont Dairy Farms, W.C. No. 4-167-102 (December 11, 1995). We reject these arguments.
In Hernandez v. Longmont Dairy Farms, supra, the claimant served the respondents with interrogatories which requested a "detailed and complete" statement of the testimony to be provided by the respondents' vocational rehabilitation expert. The respondents replied by stating that they would provide a copy of the expert's report once it was prepared. The respondents did not provide the report and at hearing offered the expert's testimony. An ALJ found the respondents' conduct manifested a "flagrant disregard" of their discovery obligations and therefore precluded the testimony of the vocational expert. We concluded that a finding of a "willful" discovery violation is a prerequisite to sanctions for the failure to comply with discovery in a workers' compensation claim. Therefore, we set aside the ALJ's order and remanded the matter for determination of whether the respondents' violation was willful.
Here, unlike Hernandez, there is no finding or assertion that the respondents' conduct violated any discovery request. In fact there is no evidence of any formal discovery request by the claimant. Consequently, the claim is factually and legally distinguishable from Hernandez.
To the contrary this claim pertains to an ALJ's evidentiary ruling in response to the respondents' offer of evidence at hearing to which the claimant objected. Section 8-43-210 C.R.S. 2000, provides that the Colorado Rules of Evidence apply to all hearings in workers' compensation claims, except that medical, hospital, physician's reports, vocational reports and records of the employer are admissible without formal identification if relevant. The respondents admit that the audiotape is not a "personal employment record." They also concede that the audiotape was not produced prior to the hearing. Consequently, we do not consider whether the audiotape is governed by the Rules of Procedure, Part VIII(I)(1), 7 Code Colo. Reg. 1101-3 at 26.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2000; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not interfere with the ALJ's evidentiary rulings in the absence of an abuse of discretion. Denver Symphony Ass'n v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974).
The standard on review of an alleged abuse of discretion is whether, under the totality of the 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). Moreover, the party alleging an abuse of discretion must show sufficient prejudice before it is reversible error. C.R.E. 103(a); Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
C.R.E. 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." See Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993). The rule represents a balancing test between probative value and prejudice. Under this rule evidence may be excluded on the grounds of "surprise"
Here it is undisputed the audiotape was not disclosed, or discussed prior to the hearing. Furthermore, the respondents' counsel did not specifically describe the relevance of the claimant's statements on the tape. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel in a pleading may not substitute for evidence which is not in the record). Under these circumstances, the ALJ's implicit determination that the potential probative value of the audiotape was outweighed by the unfair prejudice to the claimant does not exceed the bounds of reason. Consequently, we perceive no abuse of discretion in the ALJ's order excluding the evidence.
In any case, C.R.E. 103(a)(2) precludes a party from predicating a claim of error upon the exclusion of evidence unless the "substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Furthermore, the offer "must demonstrate that the evidence is admissible as well as relevant to the issues in the case." Melton v. Larrabee, 832 P.2d 1069, 1071 (Colo.App. 1992).
Here, the respondents made no adequate offer of proof concerning the content of the audiotape. To the contrary, the respondents' counsel stated that she wanted the claimant to listen to the tape and indicate whether that was her voice. (Tr. p. 54). She added that the respondents relied on the audiotape "for credibility whenever [the claimant] was fired," and for evidence concerning the claimant's "motive" in filing the workers' compensation claim. (Tr. p. 56). However, these statements do not compel the conclusion the respondents were prejudiced by the ALJ's ruling. Under these circumstances, the respondents have failed to establish reversible error. See § 8-43-310 C.R.S. 2000; Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
IT IS THEREFORE ORDERED that the ALJ's order dated January 11, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 30, 2000 to the following parties:
Diane L. Cox, 928 S. Blackhawk St., Apt. 105, Aurora, CO 80012
Leanne Griffin, ADT Security Systems, Inc., 14200 E. Exposition, Aurora, CO 80012
Dana Brendenmuhl, Crawford Co., P. O. Box 6502, Englewood, CO 80155-6502
National Union Fire Insurance, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Christopher W. Crabtree, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Craig P. Henderson, Esq. and Kathleen M. North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy