W.C. No. 3-918-065Industrial Claim Appeals Office.
December 15, 1995
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which requires them to provide medical benefits. We set aside the order, and remand for entry of a new order.
On September 19, 1988, the claimant cut his hand while attending to a motorcycle accident victim during the course of his employment as a fire fighter. The claimant’s hands also came in contact with the victim’s blood. The claimant testified that the victim was taken to a hospital and thereafter, the “hospital” informed him that the victim was an “IV drug abuser” and had “elevated liver functions.” The claimant’s co-worker, John Foellmer, also testified that he was informed by “paramedics” at the hospital that the victim “had many IV tracks on both arms.” Based upon the hospital report and their concern about the possible contraction of an infectious disease, the claimant and Mr. Foellmer filed claims for workers’ compensation benefits. The claim involving the claimant was closed in 1991. However, the claimant was subsequently diagnosed with Hepatitis C (HCV), and filed a petition to reopen his claim based upon a change of condition.
Crediting the claimant’s testimony, the ALJ determined that the claimant contracted HCV from the September 1988 incident. Consequently, the ALJ ordered the respondents to provide reasonable medical treatment necessary to cure or relieve the effects of the HCV.
On review, the respondents contend, inter alia, that the ALJ erroneously admitted hearsay evidence concerning the condition of the motorcycle accident victim. We agree.
Section 8-43-210, C.R.S. (1995 Cum. Supp.), provides that the rules of evidence of the district courts shall apply in all hearings under the Colorado Workers’ Compensation Act. The admission of hearsay evidence is precluded by the C.R.E. 802, except as specifically provided by those rules, civil or criminal procedural rules, or by statute. “Hearsay” is a statement which was made outside the hearing and which is offered in evidence to prove the truth of a matter asserted in the statement. C.R.E. 801.
The claimant concedes that the testimony concerning the information obtained from the hospital is hearsay. The claimant also agrees that the testimony was not admissible unless it qualifies as a hearsay exception under C.R.E. 803 (24), (1995 Cum. Supp.), which provides that the following evidence is not excluded by the hearsay rule:
“A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be served by admission of the statement into evidence. However, a 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.” (Emphasis added).
The respondents contend that the disputed testimony does not possess the requisite trustworthiness, but also contend that the claimant failed to make his intent to use the disputed testimony known to the respondents prior to the hearing. The claimant argues that the respondents waived the advance notice argument by failing to raise it before the ALJ. We disagree with the claimant’s position, and conclude that the ALJ erred in admitting the disputed testimony.
At the hearing, the respondents timely objected to the admission of the disputed testimony on the ground it was hearsay. Tr.p p. 13, 28. As a result, the burden shifted to the claimant to establish that the disputed testimony is admissible under an exception to the hearsay rule. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980); U.S. Fidelity and Guaranty Co. v. Young Life Campaign, Inc., 42 Colo. App. 298, 600 P.2d 79
(1979). Accordingly, to overcome the respondents’ hearsay objection, the claimant bore the burden to establish that all the requirements for admissibility under C.R.E. 803 (24) had been satisfied. This would include showing that the claimant gave the respondents advance notice of his intent to use the hearsay evidence. See Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994).
However, the claimant did not assert or discuss whether he made his intent to offer the hearsay statements known to the respondents in advance of the hearing. Tr. pp. 13-16. Similarly, the record does not contain evidence that the claimant provided the respondents with the “particulars” of the hearsay evidence, “including the name and address of the declarant,” as required by the rule. In fact, neither the claimant nor Mr. Foellmer identified the name of the individual at the hospital who provided the information concerning the condition of the motorcycle accident victim. Tr. pp. 16, 28-29.
Under these circumstances, the claimant failed to establish the admissibility of this hearsay evidence under C.R.E. 803 (24). Therefore, the ALJ abused her discretion in overruling the respondents’ objection to the admission of the disputed testimony. Compare Oldsen v. People, 732 P.2d 1132 (Colo. 1986). As a result of our conclusion we need not consider the respondents’ remaining arguments concerning the admissibility of this evidence.
Further, we cannot say that the ALJ’s error in admitting the testimony was harmless, because the ALJ credited the evidence that the accident victim was an intravenous drug abuser in drawing the inference that the claimant contracted the HCV from his contact with the accident victim. Finding of Facts 2, 3, 8. Moreover, we cannot ascertain how the ALJ would have assessed the sufficiency of the evidence concerning the cause of the claimant’s HCV in the absence of the hearsay evidence. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988). Therefore, it is necessary to remand the matter for reconsideration of the evidence and issuance of a new order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
For purposes of our remand, we also note the respondents’ contention that the ALJ failed to state the statutory grounds relied upon to reopen the claim. See § 8-43-303(1), C.R.S. (1995 Cum. Supp.). Admittedly, the ALJ’s findings do not expressly state whether the claim was reopened based upon a finding of error, mistake, or change in condition. Further, we note that on appeal the claimant contends that the ALJ reopened the claim based upon a mistake of fact, although the claimant’s petition to reopen alleged a change of condition. Under these circumstances, we agree that the ALJ’s findings in this regard are insufficient to permit appellate review.
Therefore, on remand the ALJ shall reconsider the evidence in the record without regard to the hearsay evidence presented by the claimant and Mr. Foellmer concerning the reported condition of the motorcycle accident victim, and make a new determination of the respondents’ liability for the claimant’s condition.
In view of our remand we do not address the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 1995, is set aside, and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed December 15, 1995 to the following parties:
Peter F. Mazula, 11648 Aqueduct Drive, Littleton, CO 80127
Lakewood Fire Protection District, 1545 Robb St., Lakewood, CO 80215
Colorado Compensation Insurance Authority, Attn: D. Thomas, Esq., (Interagency Mail)
Alan Epstein, Esq., and Barbara Schuman Heckler, Esq., 1200 — 17th St., Ste. 1700, Denver, CO 80202
(For the Respondents)
Richard J. Gleason, Esq., 9th Flr. Penn Center, 1301 Pennsylvania St., Denver, CO 80203
(For the Claimant)
BY: _______________________