Title 8 . Labor and Workforce Development

Chapter 45 . Fishermen's Fund

Section 120. Evidence

8 AAC 45.120. Evidence

(a) Witnesses at a hearing shall testify under oath or affirmation. The board will, in its discretion, examine witnesses and will allow all parties present an opportunity to do so. Except as provided in this subsection and 8 AAC 45.112, a party who wants to present a witness's testimony by deposition must file a transcript of the deposition with the board at least two working days before the hearing. If the board determines that a party is extremely indigent and cannot afford to pay the transcription fee, the board will rely upon the audio or visual recording of the deposition without a transcript. If a party fails to file a transcript of a witness's deposition at least two days before the hearing and if the board or its designee determines that neither unusual and extenuating circumstances exists nor is the party extremely indigent, the witness's deposition testimony will be excluded from the hearing, except for impeachment purposes, and will not be relied upon by the board in reaching its decision. If the board or its designee determines that unusual and extenuating circumstances exist, the board or its designee will determine whether to rely upon either the late-filed transcript or upon the audio or visual recording of the deposition without a transcript.

(b) The order in which evidence and argument is presented at the hearing will be in the discretion of the board, unless otherwise expressly provided by law. All proceedings must afford every party a reasonable opportunity for a fair hearing.

(c) Each party has the following rights at hearing:

(1) to call and examine witnesses;

(2) to introduce exhibits;

(3) to cross-examine opposing witnesses on any matter relevant to the issues even though the matter was not covered in the direct examination;

(4) to impeach any witness regardless of which party first called the witness to testify; and

(5) to rebut contrary evidence.

(d) A party who does not testify in his own behalf may be called and examined by any party as if under cross-examination.

(e) Technical rules relating to evidence and witnesses do not apply in board proceedings, except as provided in this chapter. Any relevant evidence is admissible if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but it is not sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. The rules of privilege apply to the same extent as in civil actions. Irrelevant or unduly repetitious evidence may be excluded on those grounds.

(f) Any document, including a compensation report, controversion notice, claim, application for adjustment of claim, request for a conference, affidavit of readiness for hearing, petition, answer, or a prehearing summary, that is served upon the parties, accompanied by proof of service, and that is in the board's possession 20 or more days before hearing, will, in the board's discretion, 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. The right to request cross-examination specified in this subsection does not apply to medical reports filed in accordance with 8 AAC 45.052; a cross-examination request for the author of a medical report must be made in accordance with 8 AAC 45.052.

(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

(1) under a hearsay exception of the Alaska Rules of Evidence, the document is admissible;

(2) the document is not hearsay under the Alaska Rules of Evidence; or

(3) the document is a report of an examination performed by a physician chosen by the board under AS 23.30.095 (k) or AS 23.30.110 (g).

(i) If a hearing is scheduled on less than 20 days' notice or if a document is received by the board less than 20 days before hearing, the board will rely upon that document only if the parties expressly waive the right to cross-examination or if the board determines the document is admissible under a hearsay exception of the Alaska Rules of Evidence.

(j) Subsections (f) - (i) apply only to objections based on hearsay, and do not limit the parties' right to object to the introduction of documents on other grounds.

(k) The board favors the production of medical evidence in the form of written reports, but will, in its discretion, give less weight to written reports that do not include

(1) the patient's complaints;

(2) the history of the injury;

(3) the source of all facts set out in the history and complaints;

(4) the findings on examination;

(5) the medical treatment indicated;

(6) the relationship of the impairment or injury to the employment;

(7) the medical provider's opinion concerning the employee's working ability and reasons for that opinion;

(8) the likelihood of permanent impairment; and

(9) the medical provider's opinion as to whether the impairment, if permanent, is ready for rating, the extent of impairment, and detailed factors upon which the rating is based.

( l ) Unless a genuine question is raised as to the authenticity of the original or, in the circumstances, it would be unfair to admit the duplicate in place of the original, a duplicate is admissible in accordance with this section to the same extent as an original.

(1) For purposes of this subsection, a duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, or by mechanical or electronic recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduce the original.

(2) The following duplicates are admissible to the same extent as an original:

(A) duplicates of medical reports or records of any governmental agency;

(B) a duplicate of the contents of a writing, recording, or photograph is admissible if

(i) all originals are lost or have been destroyed, unless the party in bad faith lost or destroyed them;

(ii) an original cannot be obtained by any available judicial or administrative process or procedure;

(iii) at a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at hearing; or

(iv) the writing, recording, or photograph is not closely related to a controlling issue.

(m) The board will not consider evidence or legal memoranda filed after the board closes the hearing record, unless the board, upon its motion, determines that the hearing was not completed and reopens the hearing record for additional evidence or legal memoranda. The board will give the parties written notice of reopening the hearing record, will specify what additional documents are to be filed, and the deadline for filing the documents.

History: In effect before 7/28/59; am 5/28/83, Register 86; am 12/14/86, Register 100; am 3/16/90, Register 113; am 7/20/97, Register 143; am 7/2/98, Register 146

Authority: AS 23.30.005 (h)

AS 23.30.095

AS 23.30.110 (c)

AS 23.30.135