Opinion
W.C. No. 4-702-652.
August 27, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated April 3, 2008 that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. On September 25, 2006, the claimant was involved in a motor vehicle accident while driving his employer's truck. The claimant rear-ended another vehicle. The day following the motor vehicle accident, the claimant contended that he sustained injury as a result of a faulty exhaust system on the employer's truck, which he alleges leaked carbon monoxide into his truck cab. The claimant's testimony was not deemed credible. The ALJ found that the claimant did not sustain this burden of proof to establish that he suffered a work injury on September 25, 2006 as a result of inhaling carbon monoxide while operating a defective truck for the employer.
I.
On appeal, the claimant first argues that he presented the same evidence here as he had before a judge when he was charged with careless driving arising out of the September 25, 2006 accident. The municipal court judge, in contrast to the ALJ here, found that there was a malfunction in the truck causing carbon monoxide to come out and cause the defendant to become sleepy.
The claimant has attached to his petition to review and his brief in support a transcript from the municipal court trial. However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant's attachments to his petition to review and brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider the transcript submitted by the claimant.
Further, here the ALJ found based on the evidence presented at hearing that the claimant did not sustain his burden of proof to establish that he suffered a work injury on September 25, 2006 as a result of inhaling carbon monoxide while operating a defective truck for the employer. The record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ's factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Applying these principles here, we perceive no error in the ALJ's order.
II.
The claimant next contends that the ALJ erred in ruling that certain documents were inadmissible. These documents appear to be material safety data sheets (MSDS) and associated documents produced by the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) related to the affects of carbon monoxide on humans. We disagree.
In her order, the ALJ noted that the claimant offered into evidence documents obtained from the internet. The ALJ ruled these documents were inadmissible because they were deemed hearsay and without proper authentication. The ALJ further noted that the claimant requested the ALJ take judicial notice of information contained in documents obtained from the internet. The ALJ ruled that she would not take judicial notice because the information was not subject to judicial notice under the Colorado Rules of Evidence 201(b). The ALJ made the following findings concerning the internet materials. The internet material concerning the effect of carbon monoxide was reasonably disputed and was definitely the subject of the disputed claim. The subject was not capable of accurate and ready determination by resort to sources from the internet. The internet sources could reasonably be questioned. Therefore, the ALJ found that judicial notice was not appropriate.
The claimant has not identified by number the exhibits he believes should have been admitted. In addition without the transcript of the hearing it is difficult to determine which exhibits were not received into evidence. However, the exhibits in question appear to be Exhibits 9-13. These exhibits are an OSHA guideline for carbon monoxide, a MSDS summary sheet for diesel fuel, a health hazard data sheet relating to carbon monoxide, an OSHA pamphlet on carbon monoxide and an OSHA handout on how to protect yourself from carbon monoxide poisoning.
C.R.E. 201(b) provides that, for an adjudicative fact to be subject to judicial notice, it "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Under § 8-43-210, C.R.S. 2007 the rules of evidence are applicable in workers' compensation proceedings.
Judicial notice is to be used cautiously and only in cases in which the matters to be so noticed are of such common knowledge that they cannot reasonably be disputed. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983). In One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995), the document presented for judicial was published in the Federal Register by a federal agency pursuant announcing the withdrawal of Medicare coverage of thermography. It was held that the court is mandated to take judicial notice that a certain document exists, contains certain statements, and was duly published in the Federal Register, but not required to take judicial notice of the truth of the statements contained in the Federal Register document. The dispute in One Hour Cleaners turned on whether thermography was reasonable and necessary for the claimant's treatment. Therefore, it was held that the ALJ could not take judicial notice of the disputed fact that thermography was ineffective.
Here, it does not appear that the documents were offered to establish that OSHA published certain documents, but presumably offered for the purpose of the ALJ taking administrative notice of certain statements contained in the documents. In our opinion, the claimant asked the ALJ to rely on materials, which properly should be interpreted and testified on by experts in the appropriate field. The effect of carbon monoxide poisoning is not an adjudicative fact of which administrative notice may properly be taken. See generally, Sines v. Monfort Transportation, W. C. No. 4-274-500 (December 17, 1998). In our view, the ALJ was not obligated to accept these documents under CRE 201(b) and the ALJ did not error in refusing to take administrative notice of the internet information.
IT IS THEREFORE ORDERED that the ALJ's order dated April 3, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Copies of this order were mailed to the parties at the addresses shown below on
ZACHARY A SANDOVAL, CO, (Claimant)
RAYSOR TRUCKING, INC., Attn: MS JUDY EDDLEMAN, CO, (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ.,, CO, (Insurer)
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents)
PINNACOL ASSURANCE, Attn: LEGAL TEAM, DOCKET STAFF, DENVER, CO, (Other Party)