EVIDENCE
Admissibility of expert opinion - See also EXPERT TESTIMONY
Attorney as witness
Where the testimony of the worker's attorney was critical to the questions in dispute, the attorney was precluded, under RPC 3.7, from acting as both witness and advocate. The attorney's testimony was stricken and the matter remanded to the hearing process. ....Kenneth Barber, 87 0334 (1988)
Collateral source rule
To be admissible, evidence of receipt of benefits from a collateral source (e.g., employer retirement or social security disability benefits) must be coupled with expert evidence tying the receipt of those benefits to a lack of motivation to return to work or some other relevant issue. ....Adelbert Farr, 88 0699 (1989) [Affirmed on other grounds, sub nom, Weyerhaeuser v. Farr, 70 Wn.App. 759 (1993) Holding on collateral source rule overruled by Johnson v. Weyerhaeuser, 134 Wn. 2d 795 (1998)]
Since motivation to work is a factor in the permanent total disability determination, evidence of receipt of social security benefits is relevant and admissible to show the worker's financial motivation not to work. ....Lawrence Musick, 48,173 (1978) [concurrence and dissent] [Holding on collateral source rule overruled by Johnson v. Weyerhaeuser, 134 Wn. 2d 795 (1998)]
Documents
In the event a party timely objects to a document offered under ER 904, the document shall be rejected if it is inadmissible under other rules of evidence. ....Melvin Cork, Jr., 95 1341 (1996)
Effect of failure to allow inspection of records (RCW 51.48.040)
Where an employer failed to provide records to Department on Fifth Amendment grounds, it is precluded from presenting evidence at the Board that the assessment was incorrect. Citing Annest v. Annest, 49 Wn.2d 62 (1956). ....Cheri's Pet Grooming, 89 5939 (1991)
Exhibits containing hearsay
The failure of a party offering a business record to remove objectionable hearsay renders the entire exhibit inadmissible. ....Peter White, 58,734 (1982) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 82-2-05992-7.]
Judicial notice
The Board must rely on the opinions of medical witnesses in the record as the basis for findings addressing mental health diagnoses and may not rely on taking judicial notice of the DSM. ….Rafaela Martinez, 07 25143 (2009) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 09-2-32099-3KNT]
Judicial notice of AMA guides
The Board can take judicial notice of the AMA guides when making a determination regarding permanent partial disability. ....Bertha Ramirez, 03 14933 (2004) [dissent] ][Editor's Note: The Board's decision was appealed to superior court under King County by Department Cause No.04-2-25966-5SEA, employer Cause No. 04-2-24884-1Sea, Consolidated under Cause No. 04-2-25966-5SEA]
Learned treatise
Although an expert witness could testify about his conclusions based on a NIOSH report, he could not read the text of the report into the record as that would subvert the purposes of the hearsay rule, as well as the learned treatise exception. Citing ER 703. ....Nancy Proszek, 92 6049 (1995) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 95-2-0188-8.]
Physician-patient privilege
There is no physician-patient privilege with respect to workers' compensation claims. RCW 51.04.050. ....Adelbert Farr, 88 0699 (1989) [Affirmed, Weyerhaeuser v. Farr, 70 Wn.App. 759 (1993) Holding on collateral source rule overruled by Johnson v. Weyerhaeuser, 134 Wn. 2d 795 (1998)]
Psychologist-patient privilege
Although the privilege exemption of RCW 51.04.050 applies only to communications made to physicians and not to those made to psychologists, statements made by a worker to a psychologist in the course of treatment under an industrial insurance claim are not privileged, as the worker had no reasonable expectation that such communications would be kept confidential. ....Emmett Smith, 70,253 (1987) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 87-2-01158-3.]
Rebuttal testimony
WAC 263-12-115(2)(c) does not entitle a party to present rebuttal testimony as a matter of right. The rule only concerns the order in which rebuttal testimony is presented, if allowed. Rebuttal evidence is not simply a reiteration of a party's evidence in chief, but must consist of evidence offered in reply to new matters. A party may not withhold substantial evidence merely to present the evidence cumulatively at the end of the other party's case. The determination of whether to allow or restrict rebuttal is within the discretion of the Industrial Appeals Judge and can only be made following a disclosure of the evidence sought to be presented. ....Maria Chavez, 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]
Statements by interpreter
Statements interpreting statements of the worker made during medical examinations were relied upon by the doctors for the purpose of diagnosis or treatment and are admissible under ER 803(a)(4). If the worker questions the accuracy of the interpretation, the burden is on the worker to present evidence to that effect. Such evidence, however, would only bear on the weight to be given the doctors' opinions, and not on their admissibility. ....Maria Chavez, 87 0640 (1988) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 88-2-02121-9.]