Failure to Present Live Testimony of Physician In Workers Comp Claim
Section 8-43-210, C.R.S. 1999, is specific in providing:
Notwithstanding section 24-4-105, C.R.S. [the Administrative Procedure Act], the Colorado rules of evidence and requirements of proof for civil non-injury cases in the district courts shall apply in all hearings; except that medical and hospital records, physicians' reports, vocational reports, and records of the employer are admissible as evidence and can be filed in the record without formal identification if relevant to any issue in the case.
Under this statute, procedural due process requires that any opposing party must be given the opportunity to cross-examine the author of any report thus admitted. See Puncec v. City and County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970) (referee improperly relied upon hospital records without providing opportunity for inspection and cross-examination).
The very real purpose of requiring proper verification of the claim is met once an appropriate expert report is received.
And, in all cases in which the employer chooses to examine that expert, an opportunity for such examination must be provided, even if that expert is not initially called as a witness in the claimant's case. See Puncec v. City and County of Denver, supra.