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Gohl v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

July 20, 2000

RANDY GOHL, Petitioner,
v.
STATE COMPENSATION INSURANCE FUND/ LIBERTY NORTHWEST, Respondents/Insurers for DIVERSIFIED TRANSFER & STORAGE, Employer.

          Submitted: July 11, 2000

          ORDER PERMITTING FILING OF PETITIONER'S DEPOSITION

          MIKE MCCARTER JUDGE

         Summary of case: Petitioner objects to the filing of his deposition, arguing it should not be considered by the Court since he will testify and because it contains an unauthenticated telephone conversation.

         Held: The objection is overruled. While the Workers' Compensation Court is bound by the Montana Rules of Evidence, § 39-71-2903, MCA, the deposition of a party opponent is admissible under Mont.R.Evid. 801(d)(2), regardless of whether the party testifies or is available to testify. Moreover, Rule 802 Mont.R.Evid. provides that a court may adopt rules permitting additional exceptions to the general rule that hearsay is inadmissible. The Workers' Compensation Court has adopted such a rule in ARM 24.5.322, which authorizes the admission of any deposition taken in a workers' compensation proceeding. Objections to inadmissible evidence in deposition must be made at the time of the deposition and briefed in the parties' proposed findings. Rule 24.5.322(5).

         Topics:

Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.322(5). Objections to inadmissible evidence in deposition must be made at the time of the deposition and briefed in the parties' proposed findings or they are deemed waived.
Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.322(9). Claimant's deposition was admissible at trial over his objection where Mont.R.Evid. 801(d)(2) allows admission of the deposition of a party opponent regardless of whether the party testifies or is available to testify and Rule 802 Mont.R.Evid. allows a court to adopt rules permitting additional exceptions to the hearsay rule, which the Workers' Compensation Court has accomplished through ARM 24.5.322, authorizing the admission of any deposition taken in a workers' compensation proceeding.
Discovery: Depositions: Objections. Under ARM 24.5.322(5), objections to inadmissible evidence in deposition must be made at the time of the deposition and briefed in the parties' proposed findings or they are deemed waived.
Evidence: Depositions. Claimant's deposition was admissible at trial over his objection where Mont.R.Evid. 801(d)(2) allows admission of the deposition of a party opponent regardless of whether the party testifies or is available to testify and Rule 802 Mont.R.Evid. provides that a court may adopt rules permitting additional exceptions to the hearsay rule, which the Workers' Compensation Court has accomplished through ARM 24.5.322, authorizing the admission of any deposition taken in a workers' compensation proceeding.

         ¶1 Petitioner objects to the filing of his deposition. The objection is overruled.

         ¶2 Section 39-71-2903, MCA, requires the Workers' Compensation Court to follow the Montana Rules of Evidence. The section provides in relevant part, "The workers' compensation judge is bound by common law and statutory rules of evidence."

         ¶3 Deposition testimony constitutes out-of-court statements. Those statements are ordinarily considered hearsay if offered for the truth of matters asserted. Hearsay is inadmissible unless within one of the hearsay exceptions. Rule 802 Mont.R.Evid., states, "Hearsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state." Rule 804 Mont.R.Evid. contains a specific exception allowing the admission of a deposition where a witness is unavailable, but the exception is inapplicable here since the claimant is available and plans to testify. However, Rule 801(d)(2), Mont.R.Evid., provides that out-of-court statements of a party are not hearsay, thus no exception need be found. The rule provides:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if: . . . .
(2) Admission by Party-Opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that ...

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