Opinion
BOARD No. 03035292
Filed: February 20, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Simon Dixon, Esq., for the employee
Joseph Durant, Esq., for the insurer
The employee appeals from a decision denying and dismissing his claim. In that decision, a prior inconsistent written statement of a witness was relied on as substantive evidence of its contents. Said strenuously objected to statement recounted how the employee told the co-worker witness that he intended to "fake" a back injury at work. In Massachusetts it is contrary to law to use a prior inconsistent statement of a non-party witness as substantive evidence in a civil matter. As such, we vacate the decision and remand the case for a new decision consistent herewith. G.L.c. 152, § 11C.
Two years into his employment relationship, on July 27, 1992, the employee alleged he injured his back at work. (Dec. 3.) The employee was no stranger to back pain. (Dec. 4.) He had been treating with a doctor for four and a half months prior to the alleged incident. Id. An examination several days after the supposed incident revealed that the employee suffered from a developmental defect, spinal stenosis and a disc protrusion with a focal herniation on the left in his low back. His pain continued unabated. On December 4, 1992, the employee underwent an L 4-5 hemilaminectomy and excision of the herniated disc. (Dec 3-4.)
The employee's claim for temporary, total incapacity benefits was denied at conference. Aggrieved, the employee appealed. In its early investigation of the claim, the insurer had obtained a co-employee's written statement. Said document stated, in pertinent part, that the employee had told co-workers "he would soon be faking a back injury and sue the company. [The employee] said he would lift something to make believe he hurt his back." (Dec. 7; Insurer's Ex. 2.)
Marcos Pena, a co-worker and putative source of the statement, was subpoenaed by the insurer to testify at the hearing de novo. The decision discusses at length a side bar discussion had with both counsel prior to Pena's taking the stand. (Dec. 6.) There is no inkling of the sum or substance of the discussion on the record, but the parties wage no challenge of it. Apparently Pena sought permission to avoid testifying for fear of the employee's reprisal. Id. The Judge ruled Pena would testify but no information concerning his present address would be allowed.Id.
When at last Pena took the stand, he recanted the statement. (Dec. 6.) He testified that, while he had helped to produce it, he disavowed its accuracy and regretted having lied to the employer regarding the statement's contents. (Dec. 7.) Pena testified that he had never heard the employee say that he planned to hurt his back. (Tr. 21.) The written statement, insurer's exhibit 2, was admitted after lengthy and vehement objection as a prior inconsistent statement. (Dec. 6-7; Tr. 21-41.) Not unpredictably, on cross examination the first question posed by the insurer was, "Mr. Pena, you said you live with your parents. What is that address?" (Dec. 7; Tr. 44.)
In assessing witness Pena's testimony and the contents of the written statement, the judge noted the witnesses generally nervous demeanor and the "verbal explosion" the home address question elicited that "even now, seven and a half months later remain[ed] etched upon [his] mind as if it occurred just minutes ago". (Dec. 7.) The Judge proceeded to marvel at the stenographer's prowess in capturing the barrage. Id. The Judge concluded that Pena's "look of absolute dread and fear at the prospect of giving his home address to the employee was convincing evidence that he truly feared the employee. (Dec. 8.) So much so that he would do whatever was necessary to avoid his retribution. This cause[d] [him] to disregard [Pena's] testimony offered in the Courtroom and find . . . [the written] statement . . . as being more reliable." (Dec. 8.) Thereupon, the judge ruled that "the injury sustained by the employee in July, 1992 did not occur at work. . . ." The employee's claim was dismissed. (Dec. 9-10.)
The intensity of these exchanges is not apparent in the record. (Tr. 44-45.) See also Mastrangelo v. Ametek Aerospace, 7 Mass. Workers' Comp. Rep. 184, 186-188 (discussing usage of demeanor evidence in decision that is not apparent in the record).
Among the numerous grounds argued by the employee on appeal, one is dispositive.
The settled rule in this Commonwealth is the "orthodox" one that prior inconsistent statements, though admissable for the limited purpose of impeaching the credibility of a witnesses testimony at trial, are inadmissable hearsay when offered to establish the truth of the matters asserted. [Citations omitted.]
. . .
The orthodox view against probative admissibility of prior inconsistent statements is founded on the general rationale for the exclusion of hearsay, namely, that the reliability of a prior inconsistent statement "rests on the credit of the declarant, who was not (1) under oath, (2) subject to cross-examination, or (3) in the presence of the trier, when the statement was made." McCormack, Evidence § 251, at 601 (2d ed. 1972).
Commonwealth v. Daye, 393 Mass. 55, 66-67 (1984). While this orthodox rule has been modified for certain prior inconsistent statements made under oath on the criminal side, no such change has ever occurred on the civil side. See, e.g., id. at 71-74;Commonwealth v. Fort, 33 Mass. App. Ct. 181, 184-186 (1992), The civil rule stands today on the same ground as it always has occupied in the Commonwealth. See, e.g., Salonen v. Paanenen, 320 Mass. 568, 575 (1947); P.J. Liacos, Massachusetts Evidence, § 6.6.2 at 282-286 (6th ed. 1994). Therefore, when the judge adopted and relied on the out-of-court witness Pena's statement for the truth of the matter which it asserted, he erred as a matter of law. The decision based on this inadmissable hearsay evidence, must be vacated. G.L.c. 152, § 11C.
We therefore remand the case for a new decision consistent with this opinion.
So ordered. ________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: February 20, 1996