IN THE MATTER OF THE CLAIM OF RAYMOND OLIVER, Claimant, v. METROPOLITAN ASSOCIATION FOR RETARDED CITIZENS, Employer, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer, Respondents.

W.C. No. 4-319-894Industrial Claim Appeals Office.
September 22, 1998

ORDER OF REMAND

The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ), which found that the claimant failed to prove a compensable injury or occupational disease during the period of time Metropolitan Association for Retarded Citizens (employer) was insured by the Insurance Company of the State of Pennsylvania (Pennsylvania). The claimant argues the ALJ erroneously failed to admit prior consistent statements indicating that he sustained a compensable injury or disease while Pennsylvania was on the risk. We set aside the ALJ’s order and remand for further proceedings.

The central issue in this case is whether the claimant sustained an injury or occupational disease to his right upper extremity on or before September 30, 1996. That date is significant because on October 1, 1996, the employer ceased to be insured by Pennsylvania, and obtained insurance elsewhere.

At the hearing, the claimant testified that the injury to his right upper extremity resulted from operating a baling machine. According to the claimant, operation of the machine required him to drag very heavy bales of clothes. As a result, the claimant stated that he began to experience pain in his right upper extremity in “about September” of 1996. (Tr. p. 15).

On cross-examination, respondents’ counsel confronted the claimant with a medical report bearing the claimant’s signature. The medical report indicates that the date of injury or illness was October 3, 1996.

On redirect examination, claimant’s counsel attempted to question the claimant concerning a transcript of an interview between the claimant and a private investigator. (See “Rejected” Claimant’s Exhibit A). The interview purportedly occurred on December 23, 1996, and contains remarks by the claimant suggesting that he experienced upper extremity pain prior to October 1, 1996. (Claimant’s Exhibit A, pp. 21, 23).

Claimant’s counsel contended that the transcript was admissible under CRE 801(d)(1)(B) as a “prior consistent statement” offered to rebut the respondents’ introduction of the medical record and implied charge of recent fabrication concerning the date of injury. Respondents’ counsel argued that the transcript could not be authenticated without the testimony of the private investigator. The ALJ excluded the document and ruled that, even if it were admissible under CRE 801(d), “that doesn’t eliminate the problem of the authentication of this document.” The ALJ also noted that the transcript was “not even signed by the transcriber” (Tr. pp. 36-37).

Claimant’s counsel then attempted to introduce the claimant’s statements to the investigator by direct questioning of the claimant. The claimant testified that he had spoken to the investigator, and at that time he was unaware that the employer had changed workers’ compensation carriers on October 1. However, the ALJ sustained the respondents’ objection to the substance of the claimant’s statements because “there’s a problem with self-serving statements as to what did you say at a past occasion.” (Tr. p. 39). Specifically, the ALJ ruled that CRE 801(d)(1)(B) requires proof of a prior consistent statement by “extrinsic evidence.” By that, the ALJ apparently meant that proof of a prior consistent statement must be made by someone or something other than the declarant himself. (Tr. pp. 40-41).

After excluding evidence of the claimant’s prior consistent statements, the ALJ ruled that the claimant failed to prove he sustained an injury or occupational disease prior to October 1, 1996, and dismissed the claim for benefits against the respondents. In so doing, the ALJ discredited the claimant’s hearing testimony, and noted the claimant reported no injury to the employer until November 8, 1996, after he had been discharged. Further, the ALJ stated that the claimant did not seek treatment for his upper extremity injury until November 25, 1996.

On review, the claimant contends the ALJ erred in excluding Claimant’s Exhibit A, as well as the claimant’s testimony, concerning statements he made to the private investigator in December 1996. The claimant contends that this evidence was admissible under CRE 801(d)(1)(B) because it tends to rebut the respondents’ implied assertion that he fabricated testimony concerning when he experienced pain in his right upper extremity, and did so after learning that the employer changed insurers on October 1, 1996. We agree with this argument.

CRE 801(d)(1)(B) provides that a statement is not hearsay where a declarant testifies at the hearing, is subject to cross-examination concerning the statement, and the statement is: “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” The purpose of CRE 801(d)(1)(B) is to afford a witness the opportunity to confront evidence or insinuation that his hearing testimony was recently fabricated or the product of some improper motive. The Court of Appeals now holds that the proffered statement must have been made before the declarant had the opportunity to fabricate or become aware of the facts or information giving rise to the alleged improper motive People v. Segura, 923 P.2d 266 (Colo.App. 1995).

Here, we agree with the claimant that, by introducing Respondents’ Exhibit 1 (medical report indicating date of injury of October 3, 1996), the respondents implied that the claimant fabricated his testimony concerning the date of injury in order to impose liability on Pennsylvania. The insinuation of recent fabrication and improper motive is strong since the central issue in the case is the date of injury, and the fact that the respondents will escape liability if the date of injury was after October 1.

Because the respondents attacked the claimant’s hearing testimony as a recent fabrication or the result of improper motive, CRE 801(d)(1)(B) permitted the claimant to introduce evidence of prior consistent statements designed to rebut the assertion of recent fabrication and improper motive. Thus, the Claimant’s Exhibit A, as well as the claimant’s own testimony concerning the statements to the investigator, were not hearsay and should have been admitted as evidence under CRE 801(d)(1)(B). We specifically note the claimant’s unrebutted testimony that he was unaware of the change of carriers at the time he spoke to the investigator.

The ALJ’s assertions notwithstanding, there is no requirement to present “extrinsic evidence” of prior consistent statements. The rule does not preclude a declarant from testifying to his own prior consistent statements, or serving as a conduit for admission of such statements. In fact, case law indicates a declarant may testify to her own prior consistent statements. See People v. Andrews, 729 P.2d 997 (Colo.App. 1986) (Witness permitted to read excerpt from her preliminary hearing testimony which was consistent with her testimony at trial). Although evidence of prior consistent statements offered by the declarant might be viewed as less credible than testimony from other witnesses, that fact does not prohibit the declarant from testifying as a form of rehabilitation. People v. Andrews, supra.

Insofar as the ALJ’s refusal to admit Claimant’s Exhibit A was based on authenticity grounds, the ALJ’s ruling was erroneous. CRE 901(a) provides that the requirement of authenticity is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” CRE 901(b)(1) provides that authenticity may be established by the testimony of a witness with knowledge that the “matter is what it is claimed to be.” See also, People v. Esch, 786 P.2d 462 (Colo.App. 1989) (Postal inspector could testify that questionnaire was signed by a person based on the inspector’s knowledge of the person’s handwriting).

The record indicates that claimant intended to testify that Claimant’s Exhibit A contained an accurate recital of his interview with the private investigator. Because the claimant had personal knowledge of the interview, his testimony would be sufficient to establish the authenticity of the transcript under CRE 901(a), and the ALJ erred in holding otherwise. Of course, the weight to be assigned the document is a matter within the discretion of the ALJ. See People v. Esch, supra.

The respondents argue that the claimant failed to preserve this argument because no offer of proof was made concerning the transcript or the claimant’s proposed testimony. However, CRE 103(a)(2) requires an offer of proof only where the substance of the evidence is not apparent from the context within which the questions were asked. Here, the context of the questions, together with the ALJ’s inclusion of a copy of Claimant’s Exhibit A, provide a sufficient basis for indicating the content of the excluded evidence.

We also disagree with the respondents’ assertion that the ALJ’s failure to admit the evidence constitutes harmless error. CRE 103(a) provides that error may not be predicated upon a ruling excluding evidence “unless a substantial right of the party is affected.” Here, one of the critical factual issues was the date on which the claimant began to experience symptoms of the alleged industrial injury or occupational disease. The ALJ discredited the claimant’s hearing testimony on this issue partly because of the contents of Respondents’ Exhibit 1 (Finding of Fact 13). Under these circumstances, the ALJ’s refusal to allow the claimant to rebut the inference created by Respondents’ Exhibit 1 was prejudicial to the claimant’s substantial rights, and does not qualify as harmless error. We cannot say how the ALJ might have assessed the evidence had he permitted the claimant to introduce the prior consistent statements.

We have also considered the respondents’ assertion that the prior consistent statements were excluded under CRE 403 because they presented a danger of unfair prejudice to the respondents. However, our review of the records does not indicate that this was the basis of the ALJ’s exclusion of the evidence, and we decline to draw that inference. Although the ALJ discussed possible difficulties in confronting the claimant’s testimony concerning the prior statements, there is no indication that ALJ concluded that such evidence was so unfair as to warrant outright exclusion.

Insofar as the respondents have made other arguments, we find them to be without merit. The matter must be remanded to the ALJ for a further hearing at which the claimant may introduce the excluded evidence. The respondents should be afforded the opportunity to cross-examine the claimant, and present whatever evidence they may have in rebuttal.

IT IS THEREFORE ORDERED that the ALJ’s order dated November 24, 1997, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ Robert M. Socolofsky

Copies of this decision were mailed September 22, 1998 to the following parties:

Raymond Oliver, 13400 Albrook, #A0314, Denver, CO 80239

Kathy Thiede, Metropolitan Association for Retarded Citizens, 7721 W. Sixth Ave., Unit G., Lakewood, CO 80215-6077

Carol Keim, AIG Claims Services, P.O. Box 32130, Phoenix, AZ 85018

Richard A. Bovarnick, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)

Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For the Claimant)

BY: _______________________