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Admissibility of Evidence (P01)

The Texas Rules of Evidence do not strictly apply in administrative workers' compensation proceedings. Section 410.165(a). Given this, whether or not evidence will be admitted or excluded during a CCH is determined under Division rules, and is generally within the HO's discretion. Section 142.2(8); APD 042176.

Division rules require parties seeking to introduce information into evidence to exchange that evidence no later than 15 days after the BRC, and thereafter as the evidence becomes available. Section 142.13(c). Documents that are actually exchanged or made available to all parties at the BRC need not be reexchanged within 15 days of the BRC. APD 941048. Evidence not timely exchanged pursuant to Section 142.13(c) will be admitted only if the HO finds good cause exists for failing to timely exchange the information. In determining whether a party has good cause for exchanging evidence after the 15-day period, the HO must apply a two-prong test. First, the HO must consider whether the party exercised due diligence in obtaining the evidence. APD 042996. Second, the HO must determine whether, after obtaining the evidence, the party promptly provided the evidence to the other party. APD 001090. Whether good cause exists is a question of fact for the HO to decide. Section 142.13; APD 000291.

Admission of Commission Records

Generally, a HO will not take official notice of the entire claims file, however, the relevant and essential portions of the Division's records contained in the claims file are admissible and can be offered as exhibits by any party. APD 010282. Additionally, the HO may, on his or her own initiative, take official notice of a relevant document in the Division's claims file, even when no party has offered the document into evidence, in order to fulfill the HO's duty to fully develop the record. Sections 410.163(b) and 142.2(10); APD 941171.

On September 3, 2003, a CCH was held to determine compensability and IC wavier. At the CCH, the IC sought to admit a confirmation e-mail from Commission acknowledging that the IC had timely filed a "cert-21." The IW objected on the grounds that the e-mail had not been timely exchanged. The HO sustained the IW's objection and the document was not admitted. The HO determined that the IC waived the right to contest compensability. The AP reversed and rendered a decision that the IC did not waive the right to contest compensability. While the rules of exchange should be enforced, the HO should have taken official notice of the Commission's acknowledgement of receipt of the "cert-21" offered as an exhibit because it was, in effect, a Commission record. APD 032619-s.

Other Items Given Consideration

Although not entered as evidence, HOs and the AP may consider provisions of the Texas Worker's Compensation Act, Division rules, court cases and APDs in rendering a decision. APD 020426.

Standard of Review/Abuse of Discretion

To obtain a reversal of a HO's decision based on the admission or exclusion of evidence, the appellant must first show that the evidentiary ruling was an abuse of discretion. In determining whether there has been an abuse of discretion, the AP looks to see if the HO acted without reference to any guiding rules or principles. Morrow v. HEB, Inc., 714 S.W. 2d 297 (Tex. 1986); APD 951076.

If the AP determines that the HO abused his/her discretion in admitting or excluding evidence, the AP then looks to see if reversible error occurred. The error is reversible if it was reasonably calculated to cause, and probably did cause, the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W. 2d 732 (Tex. Civ. App.-San Antonio 1981, no writ); APD 041596.

Admission of Evidence was an Abuse of Discretion But No Reversible Error Found. 

The HO admitted a document into evidence over the carrier's objection that portions of the document had not been timely exchanged. The AP found that the HO had abused his discretion in admitting the document because it was not timely exchanged and there was no showing of good cause. Because the evidence in the document was cumulative, and the remaining evidence was sufficient to support the HO's determinations, the AP found that the erroneous admission of the complained of document probably did not cause the rendition of an improper judgment. Therefore, the erroneous admission of the document was not reversible error. APD 010739.

Admission of Evidence was an Abuse of Discretion and Reversible Error Found. 

In resolving the disputed issue, the HO relied on documents offered into evidence by the IW which were intended to prove the date the IC received first written notice of the claimed injury. The IC objected to the admission of the documents because they were not timely exchanged within 15 days of the BRC, and there was no good cause for the failure to timely exchange the documents. The HO admitted the documents because he determined that they were either listed in the BRC report or discussed at the BRC. Neither listing documents in the BRC report nor discussing them at the BRC constitutes good cause for failing to timely exchange documents. The HO's reliance on the erroneously admitted documents to prove the date on which the IC received first written notice of the claimed injury probably did cause the rendition of an improper decision. The AP reversed and remanded the case for further consideration excluding the records in question. APD 992764.

The HO found that the IW injured his back moving a drill weighing 60 pounds while working on (Date of Injury). At the CCH IC asserted that the IW did not injure his back at work, but injured it working part-time for another employer or somewhere else. To support his claim the IW offered as evidence a statement from his father that the IW had not worked part-time as a bricklayer since 1997; a statement from the manager of the shoe store where the IW had worked part-time indicating that the IW did no heavy lifting and that he was not injured at his part-time job; a statement from a co-worker that IW did not do "hard work" at his part-time job; and testimony from two witnesses to bolster his claim. The IC objected to the admission and consideration of this evidence because the IW did not provide the documents and names of the witnesses to the IC within 15 days after the BRC. The HO overruled the objection and admitted the evidence for good cause because there was "no harm, no foul" and because IW hired a new attorney after the BRC. The HO's ruling was improper and an abuse of discretion because "no harm, no foul" is not a proper legal standard, and hiring a new attorney was not good cause for not exchanging evidence within the required 15-day time period. Because the resolution of the case largely turned on the IW's credibility, and because all of the erroneously admitted evidence went to bolster the IW's credibility, the HO's error in admitting the evidence was reasonably calculated to cause and probably did cause the rendition of an improper decision. Therefore, the HO's error did constitute reversible error. APD 001090.

In resolving the disputed issue of disability the HO made two separate requests for additional records. The second request made by the HO occurred 16 days after the record had closed and was made directly to the ombudsman for “whatever records of [a specific doctor] she was able to get.” Section 410.163(b) provides that a HO "shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made." HOs are also specifically authorized to “request additional evidence” from the parties pursuant to Rule 142.2(10). These important responsibilities must be exercised in light of and balanced with the fundamental requirement that both sides receive a fair and objective hearing. The HO is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the HO has a responsibility to develop facts necessary for an informed decision, this must be done in a manner and procedure that is outcome neutral and protects the procedural and substantive rights of the parties. The HO relied upon the documentation he requested and obtained from the ombudsman after the CCH to determine the disability issue. In order to maintain a neutral forum, a HO’s decision to reopen the record should typically be to clarify other evidence offered by a party or, at least, other evidence should point to the missing evidence as key to a well-informed resolution of the dispute. Based on the timing, manner, and repeated nature of the contacts, the HO’s request for additional records after the CCH constituted an abuse of discretion. Because that documentation was erroneously admitted by the HO and cannot be used to support his disability determination, a new decision was rendered that the IW did not have disability for the period in dispute. APD 160787; APD 160618.

Exclusion of Evidence was an Abuse of Discretion and No Reversible Error Found. 

The IC called Mr. K as a witness. On direct examination, Mr. K testified regarding the circumstances under which the injury was reported. During cross-examination, Mr. K objected on two occasions asserting the questions were irrelevant. The HO told Mr. K to answer the questions or his testimony would be stricken in its entirety. Mr. K engaged the HO regarding her tone of voice, and the HO dismissed Mr. K and excluded his testimony over the IC's objection. The HO should have considered the testimony given by Mr. K prior to being dismissed and decided the weight and credibility to give it based upon his reluctance to answer questions on cross-examination. The HO abused her discretion in excluding Mr. K's testimony in its entirety. Because the substance of Mr. K's testimony was somewhat reiterated by another IC witness, the HO's error was not reasonably calculated to cause and probably did not cause the rendition of an improper decision. Therefore, the HO's error did not constitute reversible error. APD 022830.

Exclusion of Evidence was an Abuse of Discretion and Reversible Error Found. 

The IW offered medical records from a doctor, who was not on the approved doctor's list, to establish that she could only work part-time. The IC objected on the grounds that the offered records were from a doctor that was not on the approved doctor's list, and the HO sustained the objection and excluded the records. Section 180.20(A)(2) provides that doctors who provide any function in the Texas workers' compensation system must be on the approved doctor's list. However, Section 410.165(b) provides that the HO shall "accept the written reports signed by a health care provider." Reports from doctors not on the approved doctor's list may not be excluded from evidence based on Section 180.20(A)(2). It was an abuse of discretion for the HO to exclude reports from the IW's medical provider on that basis. The AP found reversible error because the HO had inquired several times about evidence addressing the IW's work abilities, and the exclusion of the evidence that specifically addressed these inquiries was reasonably calculated to cause an improper judgment. APD 051172-s.

Must Object at the CCH or Error is Waived. 

Generally, if the admission or exclusion of evidence is not objected to at the CCH, any argument that there was error is waived and the AP will not reverse the HO's decision based upon an evidentiary objection on appeal. See Dicker v. Security Insurance Co., 474 SW2d 334 (Tex. Civ. App.-Waco 1971).

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