Let’s review a neat little trick pulled by a Texas workers’ compensation insurance company this week.  Luckily, it was sniffed out and snuffed out before any harm could be done.

Another attorney in my office was handling this case.  One of the good things about an office like ours, with four Texas workers’ compensation attorneys, is that we get to discuss situations as they come up and use the collective knowledge of the group to plan our attacks and defenses.

Following a Benefit Review Conference, each side has 15 days to make an “exchange.”  An exchange is when you provide the opposing party a copy of all of the documents that you intend to use at the Contested Case Hearing.  Rule 142.13, which governs these exchanges, also requires that each side list all witnesses with knowledge of relevant facts.  Not just the witnesses intended to be called to testify, but anyone that knows something that might be relevant to the case.

The insurance company exchanged the name of a witness that didn’t seem to matter and that our client did not know.  In fact, our client did not even recognize the name, had never heard of them.  Later, after the 15 day deadline had passed, the carrier exchanged the name again, but corrected the name...you know, made it a whole different name.  Still later, the carrier filed a motion to have this person testify by phone because they were from West Texas and it was not economically feasible to have them show up in Denton to testify.  The motion indicated that this person had performed an investigation and talked to co-workers at the time of our client’s accident and would testify about the findings of this investigation.

This raised a red flag.  Especially since the only other names of witnesses exchanged by the carrier were a supervisor and an HR rep.  No co-workers names had been exchanged as people with knowledge of relevant facts.  The question was what we could do about that.

At the hearing, the insurance company’s attorney called this investigator to testify.  Our attorney objected to the testimony because the witness’s name had not been exchanged within 15 days of the BRC, a different name had been exchanged, a whole different non-existent person’s name.  The judge overruled the objection and allowed the witness to testify anyway.  This is a typical and expected ruling.

As the testimony began, the carrier’s attorney asked the investigator to share who he talked to and what information he obtained from his investigation.  At this point our attorney objected again, this time objecting to the particular testimony about to be offered as hearsay derived from sources whose names had not been exchanged at all.  Testimony from witnesses whose names have not been exchanged should not be allowed.  This time, the judge ruled that the investigator could not testify about anything he heard or learned from a person whose name was not exchanged.  There was no other reason for the person to testify, so he was excused.  His only purpose had been to deliver hearsay evidence against our client.

Hearsay evidence is admissible at the Division of Workers’ Compensation.  It could be potentially damaging.  The reason is that the witness can say anything, even make stuff up and the source of the information is not there to be cross-examined.  It is unreliable.  Now if all 5 of the co-workers interviewed by the investigator had come to the hearing and testified and they all had something to say that was bad for our client and the testimony was consistent, then it would probably be considered very likely to be the truth.  But if all 5 showed up and under cross-examination the stories were different and inconsistent, then all of their testimony would most likely have no bearing on the case at all.  The point is that having them show up to be questioned by both sides is fair.  The hearsay route is not fair and is easily manipulated.

Consider this scenario:  what if all five witnesses told the investigator that they saw our client fall off of a ladder; then, four of them tell the investigator that our client said he was hurt real bad and might need an ambulance; then, the fifth man tells the investigator that he never heard the man say he was hurt because he had run to the phone when the man fell to call 911 and was not around to hear what he had to say immediately after the fall.  Then what if the investigator came to the CCH and testified that his investigation showed that somebody saw our client fall off the ladder but another witness said he never heard the man say he was hurt.  The judge could believe that an accident happened but no injury occurred because our client didn’t complain about being hurt.  This is wholly contrary to the stories told by the five witnesses to the investigator, but technically the truth because one of the five witnesses didn’t hear our client say he was hurt because he had run off to call 911!

That is the problem with hearsay.  The judge never gets to hear directly from the source of the information, but only hears it through the lens of the person re-telling the story.  The reason that the exchange requirement exists is so that each party has the ability to either contact potential witnesses and find out what the story is, or subpoena them to testify.  If the co-workers’ names had been exchanged, then our office could have subpoenaed them to attend the hearing and give testimony.  If those names had been exchanged, then the hearsay evidence probably would have been allowed because we would have been given notice that these co-workers existed and would have failed to subpoena them.  But that was not the case.  The names were not exchanged and the carrier attempted to get potentially manipulated and unchecked hearsay evidence into the record.

The genius move here was our attorney objecting to the investigator’s testimony at the very beginning.  The judge overruled that objection when it might should have been sustained.  The judge even commented later on the record that he had already allowed the carrier to call the witness to testify even though his name had not been exchanged but a non-existent person’s name had been exchanged in his place.  The judge conceded that he had already allowed the carrier some leeway.  Our attorney gave the judge the chance to grant the carrier this leeway by allowing the investigator to testify over her objection.  That move increased the odds that the judge would not allow the carrier even more leeway to use the investigator as a conduit of unchecked hearsay evidence.  To do so would have seemed really unfair at that point.  Even if the first objection had not been made, I don’t think it would have mattered.  A good judge would not allow the hearsay evidence under these circumstances and the judge in this case is a very good judge.

We don’t yet know the outcome of this case.  The case could go either way based on the other evidence entered into the record, but our client will not lose due to a carrier trick or manipulated evidence.  Our client got a fair hearing.  The chips will fall where they may.