Around the Horn: Admissibility of Hearsay in Workers’ Compensation Cases

By Thomas A. Robinson
Co-Author, Larson’s Workers’ Compensation Law
Originally published February 18, 2020, on
Copyright 2020.  Thomas A. Robinson.  All rights reserved.  Reprinted with permission.


It is axiomatic that the procedural law of workers’ compensation takes its lead and tone from the beneficent nature of the legislation. Except in those few jurisdictions utilizing court administration of workers’ compensation, most elements of procedure are summary and informal. The general goal is to avoid cumbersome procedures and technicalities, and to reach a correct decision by the shortest and quickest possible route [see Larson’s Workers’ Compensation Law, § 124.01, et seq.]. On the other hand, commissions and boards are genuinely concerned in enforcing rules of fair play. Awards and denials, after all, should not be based merely on speculation and conjecture.

As to one particularly prickly evidentiary issue — the admissibility of hearsay evidence — most decisions during the past half century have fallen into one of two categories: (1) the older rule, sometimes referred to as “the residuum rule,” pursuant to which hearsay evidence is admissible, but alone cannot support an award (i.e., there must be a residuum of evidence that is admissible under common law) and (2) the “modern” rule, represented by a majority of the current jurisdictions, under which hearsay evidence is both admissible and capable alone of supporting an award [Dr. Larson originally placed the decisions into four categories, but fully 95 percent can be adequately explained with just two — see Larson’s Workers’ Compensation Law, § 127.02.].

The Residuum Rule

The leading case associated with the residuum rule was Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916). There, a widow was awarded death benefits on a finding that a large “cake” of ice fell on the deceased ice-wagon driver while he was making a delivery to the cellar of a saloon. The finding was based solely on the testimony of the deceased’s wife, a neighbor, and several physicians, to each of whom the deceased had related the story of the accident in the saloon cellar.

That testimony was contradicted, however, by a helper on the ice wagon and two cooks in the saloon. They testified that they were present at the time and place of the alleged accident and did not see any cake of ice fall. The appellate judges divided into three groups, with four judges voting to reverse the award on the strength of the residuum rule; one, concurring specially, rejecting the residuum rule and indicating that he favored a rule permitting a finding to rest on hearsay alone — but on the precise facts here he would reverse because the hearsay in the current case was contradicted by eye-witness testimony — and two judges rejecting the residuum theory altogether. On the use of the residuum rule itself, therefore, the vote was four to three.

In its deeply divided decision, the majority of the Court of Appeals of New York stressed that there must be in the record “some evidence of a sound, competent and recognizedly probative character to sustain the findings and award made, else the findings and award must in fairness be set aside by (the) court” [Syllabus, p. 1].

The residuum rule continued in force in New York for several decades, but not without judicial protest. For example, inAltschuller v. Bressler, 289 N.Y. 463, 46 N.E.2d 886 (1943), the New York high court noted that the rule had been criticized by many scholars “as the product of judicial reluctance to depart from long accepted but technical common law rules and concepts, and the dissenting opinion [by Judge Cuthbert W. Pound] has received correspondingly warm approval” [289 N.Y. at 468]. The court added, however, that the high court had not seen fit to change its mind and the Legislature had not come forward with any statutory modification.

By the 1980s, however, the pace of change in other areas of New York administrative law had overtaken the Carroll decision, such that the Empire State moved itself into the second, “modern” category of states that allow hearsay evidence in administrative hearings [see the following non-workers’ compensation decisions: Matter of Danielle G. v. Schauseil, 292 A.D.2d 853, 738 N.Y.S.2d 913 (2002); Matter of Rivera v. New York State Racing & Wagering Bd., 201 A.D.2d 922, 607 N.Y.S.2d 772 (1994); Matter of Leon’s Collision Shop v. Adduci, 167 A.D.2d 986, 562 N.Y.S.2d 316 (1990)

Other States Following Residuum Rule

A number of states, including Pennsylvania, follow the residuum rule. For example, in Gallick v. Workmen’s Comp. App. Bd., 108 Pa. Commw. 617, 530 A.2d 945 (1987, the court stressed that hearsay evidence, to which a proper objection is made, is not competent to support a finding of the Board. Similarly, in Calcara v. Workers’ Comp. App. Bd., 706 A.2d 1286 (Pa. Commw. Ct. 1998), the claimant’s primary evidence was a medical report from the claimant’s chiropractor. The only corroboration was the claimant’s own lay testimony. The court affirmed the Board’s reversal of the award, holding that “where the causal connection between the claimant’s injury and employment is not obvious, and can only be explained by an expert, unobjected to hearsay evidence relating to that causal connection must be corroborated by competent medical evidence” [706 A.2d at 1289, emphasis in original].

Mississippi also requires at least a residuum of otherwise admissible evidence. See, e.g., Brock v. Hankins Lumber Co., 786 So. 2d 1064 (Miss. Ct. App. 2000), in which the court said, “Hearsay evidence is admissible, but ‘substantial evidence necessary to support the Commission’s decision cannot be solely from hearsay’” [786 So. 2d at 1069].

Similar decisions have come from other states, including:

  • Alaska [see Board of Nat’l Missions of Presbyterian Church v. Alaska Indus. Bd., 116 F. Supp. 625 (1953)
  • Florida [Covell v. Burgess, 115 So.2d 177 (Fla. 1st DCA 1959); Krysiak v. City of Kissimmee, 2020 Fla. App. LEXIS 1775 (Feb. 13, 2020)]
  • Illinois [see Union Elec. Coal Co. v. Commerce Comm’n, 93 Ill. 2d 415, 67 Ill. Dec. 76, 444 N.E.2d 115 (1982)
  • Kentucky [see Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973)]
  • Michigan [see Hawley v. General Motors Corp., Ternstedt Div., 67 Mich. App. 114, 240 N.W.2d 290 (1976)] , and
  • Utah [see Hackford v. Industrial Comm’n, 11 Utah 2d 312, 358 P.2d 899 (1961)].

The Modern Rule

As noted above, New York abandoned the residuum rule and follows the modern rule as to hearsay. A case decided just a few weeks ago is illustrative [Matter of Calabrese v. Fortini Inc., 2020 N.Y. App. LEXIS 207 (Jan. 9, 2020); for a full discussion of the case, click here]. The facts were straightforward. The claimant suffered a work-related injury to his back and was awarded workers’ compensation benefits. After the hearing, the employer contended the claimant had violated N.Y. Worker’s Comp. law § 114-a, based upon alleged misrepresentations that he made regarding his search for employment. In an amended decision, the Workers’ Compensation Law Judge found that claimant had provided false reports and testimony regarding his search for employment and imposed both the mandatory penalty and the discretionary penalty of disqualifying claimant from receiving future benefits for his claim. The Board affirmed.

Claimant had reported and testified that he had filed numerous job applications either in person, by email, or via paper application provided to him by the prospective employers. The employer’s investigator contacted a number of the employers to which claimant was reported to have submitted an application. According to the investigator’s report and testimony, in which the investigator identified whom he spoke to and when, the prospective employers informed him that there was no application on file from claimant, the contact name listed by claimant did not work for the prospective employer, the position applied for did not exist and/or the prospective employer did not provide or accept applications in the form that claimant purportedly used in submitting the application.

On appeal, the court acknowledged that the investigator’s evidence was hearsay, but it said the “evidence” nevertheless was “sufficiently reliable and provided substantial evidence supporting the Board’s finding that claimant made false misrepresentations in order to obtain benefits” [Opinion, p. 3]. Accordingly, the court would not disturb the Board’s findings of disqualification.

In addition to New York, the modern rule is now followed by a majority of states. While an exhaustive listing is well beyond the scope of this blog article, practitioners should begin their review with the following:

  • California: Hearsay is permitted in workers’ compensation hearings [see Cal. Labor Code §§ 5708, 5709; McAllister v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 408, 413, fn. 2, 71 Cal. Rptr. 697, 445 P.2d 313); Mote v. Workers’ Comp. Appeals Bd., 56 Cal. App. 4th 902, 65 Cal. Rptr. 2d 806, 62 Cal. Comp. Cases 891 (1997), and for a more recent decision, see American Chem-Tech v. Workers’ Comp. Appeals Bd. (Delatorre), 2003 Cal. App. Unpub. LEXIS 6849.
  • Kansas: In Love v. Kerwin, 187 Kan. 760, 359 P.2d 881 (1961), a mechanic was killed while repairing the alleged employer’s truck. Hearsay evidence that the mechanic was an independent garageman and that the alleged employer was merely his best customer was admitted over the objection by the widow. Noting that the employer had not objected to the widow’s hearsay evidence to the contrary, and that by the time of the trial, the mechanic, the alleged employer, and the examiner who had originally investigated the claim were all dead, the court held the hearsay evidence was all admissible, with or without objections.
  • Louisiana: In Chaisson v. Cajun Bag & Supply Co., 708 So. 2d 375 (La. 1998), the court held an interesting dilemma. A worker sustained an injury while on duty and was instructed by her physician to stay home for two weeks. Because she never returned to her physician, she was never released to work. At trial, the employer’s human resources director testified about a conversation, to which the worker was not a party, between the worker’s physician and another individual who had served as the employer’s former human resources director, in which the physician allegedly released the worker to return to work. The court stressed that although hearsay evidence was admissible in workers’ compensation proceedings, double hearsay was not. See also Leson Chevrolet, Inc. v. Triche, 742 So. 2d 1047 (La. Ct. App. 1999), in which the court said that a worker’s compensation judge is not bound by technical rules of evidence, such as the hearsay rule.
  • Massachusetts: In Stanton’s Case, 331 Mass. 378, 119 N.E.2d 388 (1954), the only witness at the hearing was a family physician, who related the deceased’s story that while on duty as an inspector of motor vehicles, he had chased the driver of a vehicle and experienced a pain in his chest, which developed during an argument with the driver. An award for death benefits, due to the coronary condition, was affirmed.
  • Minnesota: In Harrison v. Schafer Constr. Co., 309 Minn. 557, 244 N.W.2d 152 (1976), the deceased worker suffered a cerebral hemorrhage and died. The only evidence supporting a work connection was hearsay. The court said its admission was allowed, given the nature of the workers’ compensation referee as a “professional trier of fact.”
  • New Jersey: InGreenfarb v. Arre, 62 N.J. Super. 420, 163 A.2d 173 (1960), the 60-year-old employee had a history of heart problems, died from an apparent heart attack. The only evidence connecting the heart attack to the employment was testimony of the workers’ physician that the worker had lifted a 300-pound weight during the course of his employment and immediately felt pain. On appeal, the court reinstated the award.
  • Virginia: In Rios v. Ryan, Inc., 35 Va. App. 40, 542 S.E.2d 790 (2001), a laborer and truck driver sought workers’ compensation disability benefits after he was injured in an accident. The carrier’s investigator determined that the laborer had supplied fraudulent social security and resident alien numbers to the employer at the time he was hired. The employer contended the laborer was not an “employee” within the workers compensation act. The laborer sought review of a denial of the claim. The appellate court held that a document provided by the Immigration and Naturalization Service at the deputy commissioner’s request was reliable, relevant, and properly admitted. The laborer had failed to show that he was an employee. This decision is no longer good law with regard to the immigration issue, but the hearsay admission still stands.

Reasons for Relaxing the Common Law Hearsay Rule

One must acknowledge that even in civil law trials having nothing to do with workplace injuries, courts allow the admission of hearsay on a number of grounds, such as:

  • Res Gestae utterances, although generally the longer the interval between the incident and the statement, the more difficult it is to have that hearsay statement admitted.
  • Statements made to physicians and other health care professions, particularly with regard to treatment following an injury are routinely allowed. The same is true within the workers’ compensation setting.
  • Medical reports are generally allowed under the business records exception to hearsay. This rule is even more relaxed in most states when administering workers’ compensation laws.

The most common reason given by courts for the relaxation of hearsay rules springs from the nature of most hearings — they are before a special judge, referee, or commissioner, whose job it is to administer the claim fairly according to law. With the exception of a few states where a jury can actually be impaneled to resolve the workers’ compensation dispute, the worry that an unskilled fact-finder might not be able to separate the wheat from the chaff simply does not exist and the state’s interest to have the matter resolved fairly, but also quickly, comes to the front.

Presumptions Available in Workers’ Compensation Law

Practitioners should also remember that in many “hearsay cases,” special presumptions may also be at work. For example, while the presumption of compensability afforded by N.Y. Workers’ Comp. § 21 cannot be used to establish the actual accident itself, it can be used with the loosened rule on hearsay to allow for compensation in close cases once the Board finds the existence of the work-related accident. Moreover, many states employ a special presumption of compensability for unwitnessed accidents and deaths [see Larson, § 7.04; xbr3#]. In these cases, one often doesn’t even need hearsay evidence to establish the claim.

Special Statutes Abolishing Common Law Evidentiary Rules

Finally, in slightly more than one-half of the states, the common law rules regarding the admission of evidence do not apply to workers’ compensation proceedings [see Larson, § 127.03]. That does not mean that all rules have been thrown out the window in those states. Still, if one is seeking to get hearsay evidence before the administrative board or commission charged with the responsibility of finding the facts, the fact that your state does not apply rigid rules that might be applicable in a jury trial can be quite helpful.