Trial of workers’ compensation cases in Florida requires a familiarity with the Florida Evidence Code. Trials in other jurisdictions may not be so dependent on state evidence rules, but a recent Mississippi case suggests that knowing the code is beneficial in any event.
The Florida First District Court of Appeal has consistently concluded that the Florida Code applies to trial or workers’ compensation matters. See, Martin Marietta Corp. v. Roop, 566 So.2d 40 (Fla. 1st DCA 1990); Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983). Of course, to try a case you also need familiarity with the workers’ compensation statute, medicine, the facts of the case and more. It is not easy to try a workers’ comp case. But my focus here is on some common documentary evidence objections.
A variety of documentary objections are common in workers’ compensation trials. Workers’ compensation claims generally involve a fair volume of paperwork. Employers keep records of payroll and benefits; doctors keep records of diagnostic testing, examinations and conclusions; adjusters keep records of authorizations, calculations, and conversations. There are a wide variety of other documentary evidence in addition to these specific examples.
When a document is submitted in trial, there are various evidentiary objections that may be raised. The most common is “hearsay” in my experience but some may also object to “authentication,” and less frequently, there is the “best evidence” objection regarding documents.
A critical point with these three is that each is an independent grounds for exclusion of the document being proposed. Stated differently, if three objections are raised, the party seeking to admit the document has to overcome all three objections. Failing to address one of the three may result in the admission and consideration of the document(s). The court in Dollar v. State , 685 So.2d 901 (Fla. 5th DCA 1996) explains this.
The Evidence Code defines "hearsay" as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fla. Stat. §90.801(1)(c). There is a “hearsay rule,” which states hearsay is generally not admissible as evidence. Fla. Stat. §90.802.
Then, there are exceptions to the “hearsay rule," situations in which hearsay statements or documents are nonetheless admissible into evidence. Some of those hearsay exceptions are dependent upon the party who wants to admit the hearsay demonstrating that the witness uttering the out-of-court statement is “unavailable.” See, Fla. Stat. §90.804. Other exceptions to the Hearsay Rule are set forth in Fla. Stat. §90.803 and are not dependent on the person being unavailable.
A common error seen in trial is the sequential nature of considering the hearsay objection. The first question needs to be whether this is or is not hearsay. If the statement is not hearsay, there is no need to examine whether the declarant is available or not, whether there is an exception or not, and whether you can satisfy the requirements of any such exception. Question one, is the evidence submitted to prove the truth of what it says? It is common for this initial step to be skipped in the analysis. Even experienced litigators have a tendency to skip directly to the exceptions, without considering whether the statement is actually hearsay.
If the document is submitted to prove the truth of the statements that it contains, then it is hearsay. When that conclusions is reached, then logic leads to the consideration of the various hearsay exceptions found in the Code. A book would be required to address all of the exceptions, but the most commonly raised in workers’ compensation proceedings regarding documents is the “business records” exception. The “business records” exception is stated in Fla. Stat. §90.803(6). It is a good example of the “exception” analysis that should follow if the statement or document is in fact hearsay.
From the language in Fla. Stat. §90.803(6), the reader learns that this exception can lead to the admission of hearsay if the party seeking to use it shows that the document(s) was/were: “1) made at or near the time of the event recorded, 2) by, or from information transmitted by, a person with knowledge, 3) kept in the course of a regularly conducted business activity, and 4) it was the regular practice of that business to make such a record."
This can be shown through the testimony of someone familiar with the document. If it is a medical record, then the doctor or her/his staff could provide this testimony about the medical record. If this were instead a set of payroll records, then the employer's bookkeeper or controller of payroll manager might provide the testimony. This is an example, but each exception to the hearsay rule similarly contain a series of things that must be shown to allow the use of the particular exception.
Authentication is often confused with hearsay. Some lawyers do not appreciate that authentication is not only a different objection, but that overcoming an authentication objection requires a different demonstration or argument than what is required for a hearsay objection. In short, there is no “one argument fits all” response for an objection that raises both authenticity and hearsay.
Authentication relates to the genuineness of a document. Testimony would have to be presented upon which a judge could rely in determining that these documents are what they purport to be, that is, that they are authentic. Generally, this will require that there be some evidence placed in the record that the document is real. Again, this may come from the person that created the record or from the person who is responsible for maintaining the record. This may come in the form of a live witness at trial, a witness in a deposition, or a witness signing an affidavit, essentially saying that this document is real.
The “best evidence” of what is stated in a document, is that document itself. The Evidence Code requires the original of such a document Fla. Stat. §90.952, but then in the next section of the Code, Fla. Stat. §90.952, provides a presumption that copies are generally acceptable unless there are “genuine doubts raised as to the authenticity of the original” or it is “unfair under the circumstances to admit the duplicate into evidence.” When dealing with documents, the “best evidence” rule should be kept in mind. This rule may prevent a witness from reading aloud from a document in their testimony.
Dealing with documents can be complex. Trying a workers’ compensation case without documents, on payroll, on employment dates, on accident reporting, on medical care, on post-injury work or work search, may be very difficult. Familiarity with the objections to documents and appropriate foundation evidence (the evidence that shows the document is real, that it is the original or an accurate copy, that it is a business record, etc.) to overcome them are critical to preparation for trial of a workers’ compensation case.
Much of this post is shamelessly plaigerized from a final order I wrote in 2010. The case is Gregory George v. Greetings from Key West and The Hartford, OJCC Case No. 10012665DWL. Clicking on the link will take you to that order on the OJCC website. I am surprised in my lectures around the state by people who do not know that all of the OJCC trial orders are posted on the internet, and that you can search them.
If you visit www.fljcc.org, you will see a search box at the top of the page which is labeled “Search JCC Final Orders.” In that box, you may insert a judge’s name, an issue (such as “temporary total”) a statute section, an evidence code citation, a procedural rule, a name, or any combination of these. The Google function will then search the whole population of JCC trial orders for your terms.
Finally, remember that workers' compensation is governed by state law. So results may be different in other states. The Mississippi Supreme Court recently reversed the determination of the Administrative Law Judge in Pulliam v. Hudspeth, NO. 2013-WC-00409-COA, based upon the admission of unauthenticated documents. The dissent in Pulliam reminds that in Mississippi, unlike Florida, "the Commission is not bound by the formal rules of evidence that govern proceedings in courts of law."
The trial in Mississippi is not governed by their evidence code. The dissent in Pulliam argued that the lack of authenticity should not have been reversible error therefore. However, the majority reversed the trial court decision nonetheless. Even if the evidence code is not controlling, authentication may be a critical issues, and perhaps hearsay and best evidence too? Pulliam is interesting reading. It reminds us of some evidentiary lessons. It reminded me, and led me to write this to remind you.