W.C. No. 4-784-400.Industrial Claim Appeals Office.
February 3, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated August 5, 2009, that determined the claimant suffered an accidental injury arising out of and in the course of her employment and ordered the payment of benefits. We affirm.
The ALJ made the following pertinent findings of facts. The claimant worked as a baker for the employer. On February 2, 2009 the claimant bent down to put pans of rolls into a service case. The service case had boxes of frozen rolls on top. The claimant pushed hard to get a pan to slide into the service case and a box of rolls fell onto the back of her head. The ALJ found that the mechanism of injury was quite plausible given that boxes were stacked on top of the case.
During the course of the hearing, the ALJ sustained the claimant’s objection to the introduction of a video into evidence. Tr. at 72; Exhibit B. The ALJ ruled that the respondents had failed to lay sufficient foundation for admission into evidence of the video reenactment of the incident. Tr. at 73.
The ALJ concluded that the claimant had proven by a preponderance of the evidence that she suffered an accidental injury to her neck and head on February 2, 2009, arising out of and in the course of her employment. On appeal, the respondents contend the ALJ erred in excluding the video and they request that the matter be remanded for the ALJ to review the video, reconsider the credibility of the claimant in light of the video and take additional evidence regarding the video. We are not persuaded that a remand is necessary.
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We first note that the ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ’s ruling in this instance under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993).
Photographs may be admitted into evidence to show anything about which a witness may testify. Jorgenson v. People, 174
Colo. 144, 482 P.2d 962 (1971). The test for admission of such evidence is whether the conditions it depicts are substantially similar to the conditions at issue. See People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976). In order to prove substantial similarity of conditions, a foundation must be laid by the party seeking admission of the photograph, showing it to be a true representation. See CRE 901. Otherwise, it falls into the class of unsworn testimony. Fox v. Martens, 132 Colo. 208, 286 P.2d 628 (1955). As we understand the ALJ’s evidentiary ruling, he determined that the respondents had not carried their burden of going forward with foundation evidence demonstrating that the video was an accurate reproduction of relevant conditions existing at the time of the alleged accident.
CRE 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Testimony of a witness with knowledge that a matter is what it is claimed to be conforms to the requirements of this rule. CRE 901(b)(1); see People v. Esch 786 P.2d 462 (Colo. App. 1989)
Here the assistant store manager testified that he was familiar with the claimant’s duties and the service rack and boxes in question. Tr. at 60 56-65. The manager testified that he made a video of the bakery area and it was a fair and accurate representation of how the service case and boxes looked on February 2, 2009. Tr. at 66-75.
The claimant objected to introduction of the video contending that it was not an exact re-enactment of the accident scene. Tr. at 66-67. The claimant pointed to evidence that the box used in the video was empty as opposed to the box the claimant alleged fell on her. The ALJ found this argument persuasive and excluded the video. Tr. at 75.
We view the claimant’s objections as concerning the weight to be given the video not its admissibility. See People v. Cauley 32 P.3d 602, 607 (Colo. App, 2001) (having
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shown authenticity and relevance of video animation, its admissibility as demonstrative evidence was established and any defects went to its weight). In our opinion, the testimony of the assistant store manager provided a proper foundation for admission of the exhibit under CRE 901; See Diaz v. Intertape Polymer Group. W.C. No. 4-704-673 (April 24, 2008); aff’d Diaz v. Industrial Claim Appeals Office, No. 08CA0911 (Colo. App. November 26, 2008) (not selected for publication).
However, we are not persuaded that a remand is necessary. In our opinion, the respondents have not demonstrated that the ALJ committed reversible error because they failed to make a sufficient offer of proof.
In order to preserve for review an objection to the exclusion of evidence, a proper offer of proof must be made. Melton By and Through Melton v. Larrabee 832 P.2d 1069 (Colo. App. 1992). This offer of proof must demonstrate that evidence is admissible as well as relevant to the issues in the case. Denver Decorators, Inc. v. Twin Teepee Lodge, Inc., 163 Colo. 343, 431 P.2d 8 (1967); see also American National Bank v. Quad Construction, Inc., 31 Colo. App. 373, 504 P.2d 1113 (1972).
CRE 103(a) provides as follows:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer [of proof] or was apparent from the context within which questions were asked.
We recognize that if the substance of the excluded evidence is apparent, no formal offer of proof is required. CRE 103(a)(2) see also Roberts v. C M Ready Mix Concrete Co., 767
P.2d 769 (Colo. App. 1988). Here the video is contained in the record and available for our review. Further, it is clear that the video is intended to be some type of reenactment of the accident that will contradict the claimant’s testimony. The respondents argue that the excluded video would have gone directly to the respondents’ theory that the box could not have fallen from the top of the service case as the claimant testified.
However, the respondents contend that additional evidence from witnesses is needed to demonstrate the relevance of the video in contradicting the claimant’s testimony on the mechanism of the injury. The respondents further argue that by excluding the video the respondents were unable to call witnesses to respond to questions about what the video showed. At the time of the hearing, the respondents made no offer of proof of what the testimony of those witnesses would be.
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Moreover, the relief requested by the respondents is not a remand to the ALJ for additional factual findings in light of his review of the video. Instead, the respondents request that, after the video is received in evidence, they be given an opportunity to elicit testimony from witnesses and from the claimant regarding the veracity of the claimant’s testimony that the boxes fell from the top of the service case.
The purpose of an offer of proof is to inform the trial court of what counsel expects to prove by the excluded evidence and to ensure that an appellate court will be able to evaluate the scope and effect of the ruling to determine whether the exclusion constituted reversible error. See People v. Gillis 883 P.2d 554 (Colo. App. 1994). Here the respondents argue that additional evidence is needed to show the relevance of the video to the claimant’s testimony on the mechanism of the injury. However, there was no offer of proof of what that additional testimony would be. Consequently, we are not in a position to evaluate whether the ALJ’s error in excluding the video constituted reversible error and therefore not in a position to grant the relief requested by the respondents.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 5, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Examiner Kriksciun concurs:
I believe that the ALJ’s order should be affirmed and therefore I concur in the result. Although in my opinion the order may be affirmed on the ground that no sufficient offer of proof was provided, I would affirm the ALJ’s discretionary exclusion of the video based on the lack of foundation. That was the basis on which the ALJ excluded the proffered evidence and, in my opinion, he did not abuse his discretion in doing so. It follows that I disagree with the order insofar as it affirmatively states that the evidence “provided a proper foundation for admission of the exhibit.” The video presentation purported to depict the conditions that existed at the
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time of the claimant’s injury and was therefore in the nature of a “reenactment.” Tr. at 64. In this regard, the witness who prepared the area for filming by the respondents’ attorney testified that he reviewed the claimant’s responses and supplemental responses to interrogatories “to figure out who [sic] the Claimant alleged that this injury occurred.” Tr. at 61. He further testified that he attempted to infer from the interrogatory responses how the boxes were placed on the top of the service rack case. Tr. at 61. Consistent with the purpose of the video as a recreation of the circumstances on the day of the injury, the witness testified that the video depicted the service case, the boxes, and the exhaust fan area as they were at the time of the claimant’s injury. Tr. at 63. However, he also testified that he did not “actually see anything happen” on that day and did not remember what time he observed the condition of the bakery on the day of the injury. Tr. at 64. He also testified that he did not place an empty rack in a certain position because he was unaware of the testimony of a previous witness that such a rack was present. Tr. at 66. He further stated that when he recreated the position of several boxes he used an empty box on top, because he “was not sure if the third box was full or not. . . .” Tr. at 66.
Following considerable voir dire by both attorneys regarding the video, the ALJ stated to respondents’ counsel that he was “confused as to what you’re attempting to show through this witness.” Tr. at 72. The ALJ then observed that he believed the respondents were merely attempting to show “how [the witness] saw things on February 2nd.” Tr. at 72. The respondents’ attorney stated that that was not his intent, but rather the video was intended to “re-enact” the circumstances of the injury. Tr. at 72. The ALJ then sustained the claimant’s objection to the video, ruling that the respondents had “laid insufficient foundation.” Tr. at 73.
I disagree with the statements in the order that the claimant’s objections went merely to the weight of the exhibit and that a sufficient foundation had been provided by the employer’s witness. Contrary to the statements in the order, I do not believe a sufficient foundation for admission of a video reenactment may be made merely by showing that the video “purports” to be an accurate depiction. Rather, as the ALJ here recognized, the proffered exhibit should be tested for accuracy and reliability. As one court has stated:
Motion pictures are, of course admissible in evidence and are notably effective in many instances. However, such exhibits must be premised by a foundation of accuracy and fairness. Where, as here, motion pictures purport to represent a reenactment of human conduct the court should scrutinize the foundation with great care as to detail.
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Sanchez v. Denver Rio Grande Western Railroad Company, 538 F.2d 304, 306 n. 1 (D.Colo. 1976) (applying federal rules of evidence).
Here, it is evident from a reading of the order that the ALJ considered the respondents’ showing insufficient to establish that the video was an accurate and reliable reenactment of conditions at the time of the claimant’s accident. Accordingly, I do not believe he abused his discretion by excluding the video on those grounds, which were correctly characterized by the ALJ as foundational.
Although I disagree with the reasoning of the order regarding the ALJ’s ruling, I agree that the order may also be affirmed based on the respondents’ failure to make a sufficient offer of proof. Therefore, I join in the result affirming the ALJ’s order.
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CARRIE ABSHER, COLORADO SPRINGS, CO, (Claimant).
KING SOOPERS, COLORADO SPRINGS, CO, (Employer).
SEDGWICK CMS, Attn: JUDI SCHIWAL, SALT LAKE CITY, UT, (Insurer).
McDIVITT LAW FIRM, PC, Attn: SHEILA TOBORG, ESQ./KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICE OF STEVEN J PICARDI, PC, Attn: STEVEN J PICARDI, ESQ., PARKER, CO, (For Respondents).