Witness statements admissible only with live testimony

The injured worker for the employer as an insulation installer. Occasionally, the claimant had to wear stilts to complete insulation jobs. On one such occasion, the claimant suffered an admitted injury after a fall, leading to a significant head injury that left claimant with no recollection of the accident.

It was the employer’s policy that employees may not wear stilts on uneven surfaces, including stairs. The claimant recalled that employer made it clear that this was the policy. At hearing, the claimant testified that he always removed his stilts before ascending or descending stairs.

While the respondents admitted liability for the claimant’s accident and commenced payment of temporary total disability (“TTD”) benefits, they nevertheless reduced those benefits by fifty percent pursuant to C.R.S. § 8-42-112(1)(b) based on their determination that the claimant’s injury resulted from a safety rule violation (i.e., wearing stilts on stairs).

During the hearing, the respondents attempted to introduce evidence into hearing to prove that claimant was on the stairs when he fell, thus proving the safety violation. One item was an accident report prepared by the employer containing statements from three co-workers. A second contained emails between the employer’s risk management personnel and the claims adjuster discussing whether the claimant violated the safety rule. The ALJ sustained claimant’s objection to exclude the items from evidence, finding that the statements were not “records of the employer” as contemplated by the Act (which would make them automatically admitted without foundation) or, alternatively, admissible as records of regularly conducted activity.

The ALJ ultimately found that the respondents failed to prove the claimant’s injury resulted from the willful violation of the safety rule. The ALJ reasoned that there was insufficient credible evidence establishing the claimant was on the stairs when he fell. The ALJ denied and dismissed the respondents’ request to reduce the claimant’s indemnity benefits by fifty percent.

The respondents appealed the ALJ’s order to the Industrial Claim Appeals Office, arguing that the evidence was admissible and that the ALJ’s conclusion regarding the violation of the safety rule was not supported by substantial evidence.

A Panel of the ICAO agreed with the ALJ that the Act does not allow employers to introduce written “reports” of witnesses as a substitute for testimony under the guise of “employer records” and upheld the exclusion of the materials.  The Panel further opined that the materials were specifically generated as part of the employer’s investigation in the specific case at hand, and did not carry the guarantees of reliability that form the underlying basis for the business records exception.

The respondents also argued the ALJ’s determination that the claimant did not violate a safety rule is not supported by substantial evidence. However, the Panel disagreed, stating that the ALJ had relied had sufficient evidence to come to a reasonable conclusion, such as the claimant’s testimony and the lack of evidence showing that claimant was even on the stairs when he fell. Therefore, the Panel affirmed the ALJ’s decision to deny the respondents request to diminish claimant’s indemnity benefits to failure to obey a safety rule.

Im v. Builder Services Group Inc., W.C. No. 5-039-943-01 (ICAO Apr. 17, 2018).

Would you like to know more? Contact Ilene Feldmeier at ifeldmeier@pollartmiller.com or 720-488-9586.


From the May 2018 Pollart Miller Newsletter