W.C. No. 4-334-221Industrial Claim Appeals Office.
March 31, 2000
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Felter (ALJ) which awarded medical benefits based on the claimant’s contraction of hepatitis C (HVC). The respondents contend the ALJ erroneously admitted hearsay evidence concerning the contents of a laboratory report indicating the presence of HVC at the respondents’ healthcare facility (Prospect Lake), where the claimant was employed. The respondents further contend the evidence is insufficient to establish that the claimant contracted HVC while employed at Prospect Lake. We set the order aside and remand for entry of a new order.
The claimant was employed as a registered nurse at Prospect Lake from June 1996 until October 1996. The claimant testified that on several occasions she came into contact with blood and other bodily fluids emitted by patients. In January 1997 the claimant was diagnosed with HVC, a blood borne virus.
The principal issue in the case concerned whether or not the claimant was exposed to and contracted HVC while employed at Prospect Lake. Over the respondents’ objection, Linda Cowley, a former director of nursing at Prospect Lake, was permitted to testify that in 1996 she observed a laboratory report which indicated that one of the patients at Prospect Lake had HVC. The ALJ ruled the testimony was admissible because Cowley was a healthcare professional and her observation of the lab report was “inherently reliable.” The ALJ also noted in the written order that Prospect Lake had access to medical records of its patients and did not disclose them based on a claim of physician-patient privilege. In response to the ALJ’s ruling, counsel for the respondents requested a continuance stating that the respondents “never received any information indicating that [the claimant] had any knowledge from any source” that there was HVC present at Prospect Lake, despite the respondents’ request for such information during discovery. (Tr. pp. 35-37, 48-52). The request for a continuance was denied.
Relying on the claimant’s testimony, a report of one of the claimant’s treating physicians, and Cowley’s testimony concerning the lab report, the ALJ found that it is “more likely than not” that the claimant was exposed to and contracted HVC during her employment with Prospect Lake. Consequently, the ALJ awarded medical benefits.
I.
On review, the respondents contend the ALJ erred in admitting Cowley’s hearsay testimony concerning the lab report she observed at Prospect Lake in 1996. The respondents assert the ALJ admitted the testimony under the “residual exception” to the hearsay rule found at C.R.E. 807. However, the respondents argue the ruling was erroneous because the claimant failed to disclose, in advance of the hearing, her intention to offer Cowley’s testimony. We agree.
§ 8-43-210, C.R.S. 1999, provides that the Colorado Rules of Evidence apply in workers’ compensation hearings. Cowley’s testimony concerning the lab report was unquestionably hearsay because the report involved “a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” C.R.E. 801 (c). Although the lab report itself would have been admissible under § 8-43-210, Cowley’s testimony concerning the content of the lab report was inadmissible unless the claimant, as the proponent of the testimony, established its admissibility under some recognized exception to the hearsay rule. C.R.E. 802 Oldsen v. People, 732 P.2d 1132, 1135 at n. 7 (Colo. 1986).
The claimant did not lay any foundation for the admission of Cowley’s testimony other than establishing that she observed a “laboratory report.” The ALJ did not identify any specific exception to the hearsay rule which would permit Cowley’s testimony concerning the contents of this report. However, in light of the ALJ’s statement that the content of the report was “inherently reliable,” we agree with the respondents that the ALJ based his ruling on the “residual exception” of C.R.E. 807.
C.R.E. 807 permits the admission of hearsay evidence, not falling within any other exception to the hearsay rule, if the evidence has circumstantial guarantees of trustworthiness; is offered to prove a material fact; is more probative on the issue than other evidence which the proponent can reasonably procure; and the interests of justice would be served by admitting the evidence. The rule goes on to provide as follows:
However, the statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
As the respondents point out, we have previously ruled that a party seeking the admission of a hearsay statement under C.R.E. 807 (or its predecessor) must establish that the party communicated its intent to offer the evidence, and the particulars of the evidence, in a timely fashion prior to hearing. Mazula v. Lakewood-Bancroft Fire Department, W.C. No. 3-918-065 (December 15, 1995); see also, Hock v. New York Life Insurance Co., 876 P.2d 1242 (Colo. 1994). Here, there is no evidence or assertion that the claimant provided notice of her intent to offer Cowley’s testimony about the content of the lab report. Consequently, we conclude the ALJ abused his discretion in admitting the testimony.
In reaching this result, we recognize the respondents refused to disclose the contents of medical records maintained at their facility, and positively asserted that the records did not contain evidence of HVC infection. However, had the respondents known of the specific nature of Cowley’s testimony, it is possible that the respondents could have obtained additional evidence, such as records maintained by outside medical testing laboratories, tending to rebut Cowley’s testimony. The critical point is that the respondents did not receive notice of Cowley’s testimony and, therefore, were not given the necessary opportunity to rebut the testimony.
We also agree with the respondents that admission of Cowley’s testimony was not harmless. It is apparent from Finding of Fact 8 and Conclusion of Law (g) that the ALJ considered Cowley’s testimony to be highly persuasive on the issue of whether HVC was present at Prospect Lake during the claimant’s employment. We cannot ascertain how the ALJ might have weighed the remaining evidence had he properly excluded Cowley’s testimony.
II.
The respondents also argue that, in the absence of Cowley’s inadmissible testimony, there is insufficient “medical evidence” to establish a causal relationship between the claimant’s employment and her contraction of HVC. We disagree and, therefore, remand for entry of a new order.
The claimant is required to prove that her HVC was “proximately caused by an injury or occupational disease arising out of and in the course of” her employment. § 8-41-301(1)(c), C.R.S. 1999. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). However, there is no requirement that the claimant produce medical
evidence of causation if circumstantial evidence supports the inference of a causal relationship between the employment and the disease. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Here, the record contains evidence which, if credited, would support the finding of the requisite causal relationship. The claimant’s testimony, and the report of Dr. Silveira dated March 20, 1998, would constitute substantial evidence in support of a finding of causation. However, we cannot determine how the ALJ would have assessed this evidence in the absence of Cowley’s testimony. Consequently, the matter must be remanded for entry of a new order concerning the issue of causation. In reaching this result, we should not be understood as expressing any opinion concerning the weight of the testimony or the inferences to be drawn therefrom.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ________________________________ Kathy E. Dean
Copies of this decision were mailed March 31, 2000
to the following parties:
Loretta J. Roe, 2528 N. Nevada Ave., Colorado Springs, CO 80907
Community Care of America, Inc., 515 Fairview Ave., Canon City, CO 81212-2863
Jason Reever, Prospect Lake, 1420 E. Fountain Blvd., Colorado Springs, CO 80910
Amy Gerelick, Gallagher Bassett Services, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Reliance National Indemnity, Harlequin Plaza South, 7600 E. Orchard Rd., #310S, Englewood, CO 80111
Anne Smith Myers, Esq., and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy