Frazier v. H.C. Price/Ciri Construction JV , 794 P.2d 103 ( 1990 )

OPINION

COMPTON, Justice.

Richard Frazier, an injured worker, gave notice of his intention to introduce into evidence before the Alaska Workers’ Compensation Board (Board) a written medical report prepared at the request and expense of his employer. After the employer asserted a right to cross-examine the authors of the report, the Board held that Frazier should bear the costs of the cross-examination. We reverse.

I. FACTS AND PROCEEDINGS

Richard Frazier was injured on the job when he inhaled smoke from burning polyurethane foam. His employer, H.C. Price/CIRI Construction Joint Venture (Price/CIRI), controverted his claim for compensation. Frazier filed an application for benefits and requested a hearing.

Price/CIRI requested that Frazier attend an examination at the Occupational Health Clinic of San Francisco General Hospital. After examining Frazier, the doctors at the clinic found him to be suffering from severe physical and psychological injuries from his exposure to cyanide compounds contained in the smoke inhaled during the incident. Written medical reports were submitted by them to all parties.

Frazier notified Price/CIRI that he intended to introduce in evidence the written medical reports of that examination. The next day, Price/CIRI requested that it be permitted to cross-examine the authors of the medical reports. Frazier objected to paying Price/CIRI’s costs.

The Board held that under its regulations, Price/CIRI had the right to cross-examine the authors of the written medical reports at Frazier’s expense. Thereafter, two clinic physicians were deposed in San Francisco. Frazier bore the costs of the depositions, including the fees of the physicians and the court reporter.

Following an unfavorable ruling by the superior court, Frazier filed a petition for review in this court, Appellate Rule 402, arguing that the Board erred in forcing him to bear the costs of the depositions.

We granted the petition for review, and requested supplemental briefing on several questions. Initially the Board filed a notice of non-participation, but following our second request for supplemental briefing it requested permission to participate, which we granted.

II. DISCUSSION

THE BOARD ERRED IN REQUIRING FRAZIER TO BEAR THE COST OF THE CROSS-EXAMINATION.

At the outset we note that rules and regulations applied in Board proceedings are not equally applicable in civil proceedings. Frazier was entitled to obtain a copy of employer generated written medical reports pursuant to the Worker’s Compensation Act, AS 23.30.095(h). Alaska Rules of Civil Procedure 26 and 35(b), which are not applicable to Board proceedings, AS 23.30.-135,¹ essentially serve to exclude from discovery reports such as the one at issue here.

In Commercial Union Companies v. Smallwood, 550 P.2d 1261 (Alaska 1976), we held that when a party introduces a written medical report in evidence before the Board, he must provide his opponent with an opportunity to cross-examine the author of the report. Id. at 1266. Further, since the right of cross-examination should not carry a price tag, the party introducing the report must bear the cost of providing the opportunity for cross-examination. Id.²

The present regulations of the Board reflect this holding. Specifically, 8 Alaska Administrative Code (AAC) 45.120 (Oct. 1988) provides in part:

(f) Any document, including a compensation report, controversion notice, claim application for adjustment of claim, statement of readiness to proceed, petition, answer, or a pre-hearing summary, which is served upon the parties, accompanied by proof of service, and which is in the board’s possession 20 or more days before hearing, may be relied upon by the board in reaching a decision unless a written request for an opportunity to cross-examine the document’s author is filed with the board and served upon all parties at least 10 days before the hearing.

(g) A request for cross-examination filed under (f) of this section must (1) specifically identify the document by date and author, and generally describe the type of document; and (2) state a specific reason why cross-examination is being requested.

(h) If a request is filed in accordance with (f) of this section, an opportunity for cross-examination will be provided unless the request is withdrawn or the board determines that, under a hearsay exception of the Alaska Rules of Evidence, the document is admissible.

(Emphasis added).

Relying upon these sections, the Board held that Price/CIRI must be provided with an opportunity to cross-examine the clinic physicians at Frazier’s expense.

Alaska Rule of Evidence 801(d)(2)(C) provides that a “statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a person authorized by him to make a statement concerning the subject.”

Though no decision of this court has expressly considered the application of this rule, other jurisdictions have considered the application of identical rules in analogous circumstances.

In Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir.1983) cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983), the chairman of the board of a defendant pulp company asked an employee of a shareholder of the defendant’s parent company to prepare a report on the defendant’s operation. The court held that the report, which described the price structure for the purchase of logs, was admissible against the defendant under Federal Rule of Evidence 801(d)(2)(C). Id. at 1306-07.

In Collins v. Wayne Corp., 621 F.2d 777 (5th Cir.1980), two days after the accident giving rise to the cause of action, a defendant bus manufacturer hired an accident reconstruction expert to prepare a report. The court held that the report and the experts’ deposition testimony were admissible against the defendant under Federal Rule of Evidence 801(d)(2)(C). Id. at 782.

In Russell v. State ex. rel. Grimes, 672 P.2d 323 (Okla.App.1983), the defendant insurance agent appealed the admission at an agency hearing of the contents of a bankruptcy court’s judgment. The court held that because the defendant, by instituting the bankruptcy proceedings, had requested that the bankruptcy court determine his rights, the judgment was admissible under 12 O.S.1981 § 2801(4)(b)(3) (identical to Alaska Rule of Evidence 801(d)(2)(C)). Id. at 325. See also General Elec. Co. v. Hopkins, 411 So.2d 292, 294 (Fla.App.1982) (Under the circumstances of the case, and in the absence of a specific and timely objection, claimant’s testimony as to company physician’s position is competent substantial evidence); Argonaut Southwest Ins. Co. v. Morris, 420 S.W.2d 760, 763 (Tex.Civ.App.1967) (Doctors to whom employer sent employee considered agents of employer. As a result, their statements concerning employee’s physical condition are admissible as statements against interest.)

The reason for admitting such reports is obvious: the party that authorized the report has in effect vouched for the competence and credibility of the report’s author; his need to impeach the credibility and competence of the author through cross-examination is therefore less urgent.

Alaska R.Evid. 801(d)(2)(C) applies in this case. Price/CIRI requested that Frazier submit to examination by clinic physicians of its choice. Thus it vouched for the credibility and competence of the physicians.

The regulations of the Board provide that “an opportunity for cross-examination [of a medical report’s author] will be provided unless the request [for an opportunity for cross-examination] is withdrawn or the board determines that, under a hearsay exception of the Alaska Rules of Evidence, the document is admissible.” 8 AAC 45.-120(h).

Arguably Alaska R.Evid. 801(d)(2)(C) is not, strictly speaking, a hearsay “exception.” It is instead one aspect of the definition of “hearsay.”³ Nonetheless, the regulation clearly did not intend to require an opportunity for cross-examination in cases like this: cross-examination was to be required only when the written medical report was hearsay.

III. CONCLUSION

We REMAND this case to the Superior Court with directions that it order the Board to vacate its order of May 6, 1988, and order Price/CIRI to reimburse Frazier for expenses incurred in providing Price/CIRI with an opportunity to depose the clinic physicians.

1 . AS 23.30.135(a) provides in part:

(a) In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties.

2 . Although the Board endorses our application of Alaska Rules of Evidence 801(d)(2)(C) to these written medical reports, it further invites us to re-examine Smallwood "with a potential goal of restoring the principles of informality ... to Board proceedings.” On the other hand, Frazier expressly endorses "this court’s doctrine of twelve years ago [Smallwood ] that the right to cross-examine is absolute and applicable to workers compensation litigation.” (Citation omitted).

Since the controversy before us can be decided without a re-examination of Smallwood, and since the ramifications of any change in Small-wood have not been fully identified by the parties, we decline to accept the Board’s invitation. For the same reasons, we express no view on the position taken by our concurring colleagues.

3 . The official commentary to the Alaska Rules of Evidence states that "there is no good reason to treat ... the admissions covered by subsection [801(d)(2)(C) ] as non-hearsay. In fact, if these rules were written on a clean slate without reference to the Federal Rules, the admissions would be treated as exceptions to the hearsay rule and placed under Rule 803.” Alaska R.Evid. 801(d)(2) commentary.