W.C. No. 4-472-849Industrial Claim Appeals Office.
August 30, 2002
FINAL ORDER
The respondent-insurer, Centre Insurance Company, (Centre) seeks review of an order of Administrative Law Judge Felter (ALJ) which required Centre to reimburse Ace U.S.A. (Ace) for all workers’ compensation benefits paid in the claim. We affirm the order for the reimbursement of temporary disability benefits and dismiss without prejudice the appeal of the ALJ’s order for the reimbursement of medical benefits and the payment of future benefits.
The claimant suffered injuries during a motor vehicle accident in Colorado on March 26, 2000, while employed by H S Inc., which was a subcontractor of Holnam Inc. Ace issued a workers’ compensation policy which covered Holnam Inc. and certain subcontractors including H S Inc., if the subcontractor was performing work on the Holnam work site. Ace admitted liability for the claimant’s injury and provided medical and temporary disability benefits. Ace subsequently sought to withdraw the admission on grounds the claimant’s injury did not occur on the Holnam work site and, therefore, was not covered by the Ace policy.
On conflicting evidence ALJ found the claimant’s accident occurred one-quarter mile away from the Holnam job site on a public road. The ALJ also found that injuries to H S employees that occurred away from the Holnam work site were covered by Centre. Therefore, the ALJ ordered Centre to reimburse Ace for all workers’ compensation benefits previously paid on the claim. The ALJ also held Centre liable for all future benefits due on account of the claimant’s injuries.
I.
On review, Centre contends the record contains no evidence about the nature and amount of workers’ compensation benefits Ace paid to the claimant. Therefore, Centre argues the order to reimburse Ace for “all” benefits paid in the claim denied Centre due process of law.
A.
Centre’s argument raises the question of whether the ALJ’s order is final and reviewable. Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Rather, liability and the amount of benefits to be paid must both be determined before an award is considered final and appealable. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
At the conclusion of the hearing, the ALJ orally ordered Centre to reimburse Ace for “whatever it has paid” pursuant to its admission of liability. (Tr. p. 53). When the attorney for Centre pointed out that no evidence had been presented concerning what Ace paid, the ALJ added that “maybe that is an issue for another day.” (Tr. pp. 54, 55).
However, it is the ALJ’s written order which is the subject of our review. Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). The ALJ’s written order requires Centre to reimburse Ace “for all benefits paid” and “for anything” Ace has paid to or on behalf of the claimant through October 18, 2001.
Ace’s General Admission of Liability dated October 12, 2000 indicates Ace paid temporary total disability benefits commencing March 27, 2000 at the rate of $559.23 per week. (See Tr. p. 5). Under these circumstances, the ALJ implicitly ordered Centre to reimburse Ace for temporary total disability benefits paid at the rate of $559.23 per week commencing March 27, 2000. Thus, the ALJ’s order is sufficiently definite to constitute a final award for purposes of appellate review.
B.
Due process requires that where an administrative adjudication turns on issues of fact, parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Contrary to Centre’s contention, the record contains evidence about the nature and amount of temporary disability benefits Ace paid in the claim. In fact, it was Centre that included a copy of Ace’s General Admission of Liability in its hearing exhibits (Centre’s Exhibit E). Thus, we reject Centre’s contention it was denied an opportunity to confront the specific evidence concerning the benefits paid by Ace.
C.
However, we agree with Centre that there is no evidence concerning the amount of medical benefits Ace paid in the claim or the amount of future benefits due on account of the injury. Consequently, these awards are implicitly included in the issues the ALJ reserved for future determination. Under these circumstances we dismiss without prejudice Centre’s appeal of the ALJ’s order for the payment of medical benefits and future workers’ compensation benefits.
II. A.
Next, Centre contends the ALJ erred in relying on a “Certificate of Insurance” and the testimony of Paul Judkins (Judkins), to find that Centre insured H S Inc. for injuries suffered by its employees in Colorado. We disagree.
Centre was unable to produce a copy of the insurance policy between Centre and H S Inc. Judkins, who was the general manager on the Holnam construction project testified that he relied on the Certificate of Insurance issued by Centre to H S Inc. to assume there was workers’ compensation insurance coverage for H S Inc. employees injured in Colorado.
The ALJ recognized that the Certificate was not an insurance policy. (Finding of Fact 13). However, the ALJ found the Certificate was “an unrestricted statement that Centre Insurance provided workers’ compensation coverage for the employees of H S. Inc.” Further, the ALJ recognized the Certificate “may be an informational document which is subject to the terms of the policy.” However, in the absence of a copy of the policy, the ALJ found the evidence insufficient to establish that coverage was limited so as to exclude work- related injuries in Colorado that occurred away from the work-site.
It was the ALJ sole prerogative to determine the weight to be afforded the Certificate of Insurance and Judkins’ testimony. Furthermore, the ALJ’s consideration of this evidence is not inconsistent with the holdin Broderick v. Strand Nordstrom, 794 P.2d 264, 266 (Colo.App. 1990), where the court held that a certificate of insurance is “an informational document only which is subject to the terms of the policy” and does not create any type of contractual relationship for the benefit of the certificate holder. In Broderick the policy gave the insured the right to lower the amount of coverage. Consequently, the court concluded a certificate of insurance did not estop the insured from reducing the amount of coverage or the insurer from denying liability for coverage in excess of the reduced policy limits requested by the insured.
Here, unlike Broderick, no policy was produced. In fact, the ALJ was required to determine the terms of the policy. Under these circumstance Broderick did not preclude the ALJ from relying on the Certificate of Insurance or Judkins’s testimony about the Certificate to determine the terms of the policy.
B.
Centre also contends the ALJ erroneously excluded business records in the form of written investigation notes of adjuster Vicky Roden (Roden). We perceive no reversible error.
Roden was hired by Superior National Insurance Group to investigate whether Centre insured H S Inc. for work-related injuries in Colorado. She added that she made contemporaneous computer notes of her investigation results. The printed computer notes were marked as Exhibit F and offered as a business records exception to the hearsay rule. Ace’s attorney objected to the admission of Exhibit F. The ALJ sustained the objection based on his determination that the business records exception to the hearsay rule pertains to contemporaneous written entries by a individual with personal knowledge of the information contained in the entries and that was not the situation here. (Tr. p. 43).
Section 8-43-210 C.R.S. 2001, states that the rules of evidence of the district courts shall apply in all hearings under the Colorado Workers’ Compensation Act. CRE 801 defines “hearsay” evidence as a statement made outside the hearing of the court and offered for the truth of the matter asserted. See CRE 801. The admission of hearsay evidence is precluded by the CRE 802, unless the evidence falls under one of the exceptions listed in CRE 803.
Records kept in the course of a regularly conducted business activity, are an exception to the hearsay rule. CRE 803(6). There are five requirements for a hearsay document to be admissible under CRE 803(6): (1) the document must have been made at or near the time of the matters recorded in it; (2) the document must have been prepared by, or from information transmitted by, a person with knowledge of the matters recorded; (3) the person or persons who prepared the document must have done so as part of a `regularly conducted business activity; (4) it must have been the regular practice of that business activity to make such documents; and (5) the document must have been retained and kept in the course of that, or some other, regularly conducted business activity Schmutz v. Bolles, 800 P.2d 1307 (Colo. 1990). The business records exception includes records prepared by another source that are adopted and integrated into the business report sought to be introduced which, itself is prepared in the regular course of established business procedures. Teac Corp. of America v. Bauer, 678 P.2d 3 (Colo.App. 1984).
The business record exception also applies to computer records and insurance investigation reports. Beanham v Pryke 703 P.2d 644 (Colo.App. 1985) rev’d on other grounds, 744 P.2d 67 ; Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo.App. 1985) [insurance adjuster’s investigation report which was based, in part, on a conversation with the manager of an overhead door distributor was admissible under CRE 803(6) in product liability claim against overhead door manufacturer]. Accordingly, the ALJ erred insofar as he excluded Exhibit F because Roden did not have personal knowledge of all of the facts contained in the entry.
However, we conclude the ALJ’s error was harmless. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error). We have reviewed Exhibit F. There are only two computer entries which pertain to the issue of whether Centre provided coverage for injuries to H S Inc. employees in Colorado. Entry 10 dated July 28, 2000, states, “ER states that he was informed by his brother Mike, President of the Company, that there was not coverage under W.C. for the IW.”
Entry 13, which his also dated July 28, 2000 states:
“Need to discuss coverage and other issues w/supervisor/manager:
per earlier note, there is no CO coverage on this policy. Premium appears to be $35000. ER is employing 90 people in the state of CO for a 10 month period of time and this jurisdiction is not covered on the policy. . .(??)”
It is unclear whether Entry 13 reflects a determination by Roden that there was no insurance coverage or questions Roden needed to discuss with the manager. In any case, Centre did not present evidence that either Entry 10 or 13 were based upon information provided by an individual with personal knowledge of the subject matter. Consequently, the ALJ did not error in concluding Exhibit F was not an admissible as a business record exception to the hearsay rule.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 2001 is affirmed insofar as it required Centre to reimburse Ace for temporary disability benefits paid in the claim.
IT IS FURTHER ORDERED that Centre’s petition to review the ALJ’s order for the reimbursement of medical benefits and future workers’ compensation benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ David Cain
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. 2001. 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 August 30, 2002 to the following parties:
Timothy Wilson, 2160 S. Orchard Dr., #23, Bountiful, UT 84010
H S Construction a/k/a H S, Inc., 2525 Pittman Rd., Somerville, TN 38068
Holnam, 800 S. Hutton Rd., Farmington, NM 87401-2842
Centre Insurance Company, Michael Kramish, Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155
Superior National Insurance Company, P. O. Box 101630, Denver, CO 80250
Superior National Insurance Group, P. O. Box 1240, Rancho Cordova, CA 95741-1240
ACE, U.S.A., Pacific Employers Insurance, P. O. Box 2941, Greenwood Village, CO 80150
William J. Macdonald, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent Centre Insurance Company)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents Holnam and ACE, U.S.A.)
Brian Kelm, Esq., 350 So. 400 East, #122W, Salt Lake City, UT 84111
BY:A. Hurtado