February 15, 2023
by Zachary Goldberg-Johns

No Doctor, No Problem? Rule 904 & Washington State Claims

There are many reasons, despite the best efforts of adjusters, adjudicators, and attorneys, that a workers compensation claim may take a while to resolve. Long courses of treatment, symptom improvement followed by aggravations and setbacks, intervening injuries or even disappearing claimants can all leave claims languishing without resolution. After years of claims processing, litigation, and remands you may feel you are finally in an advantageous position to close a long-suffering claim on favorable terms only to discover that a medical expert you had planned on testifying is no longer available.

In the above situation there are a number of routes one can take to introduce favorable evidence heading into Board litigation. One could move to admit evidence under ER 804 which discusses introducing evidence of a witness unavailable to testify at the hearing, one could attempt to use a testifying witness to introduce the opinion of the missing doctor, among other options. Each tool has their own positives and negatives.

However, sometimes, depending on the kind of evidence one wants to admit, the fastest and easiest way to introduce medical evidence is through ER 904. ER 904 states that certain documents (bills, reports made for the purposes of treatment, charts, records of hospitals and doctors, ect.) can be admitted without the need for authentication so long as the formalities of the rule have been complied with. These formalities include the party seeking admission serving all parties with a notice, no less than 30 days before trial. The notice must include numbered copies of the documents you wish to admit in the form of an index which must also be served to the parties.

This can be an extremely helpful rule as the evidence identified in the notice is admitted unless the opposing party takes the proactive step of contesting the documents. ER 904 states that “unless objection is served within 14 days of the date of the notice” the evidence contained therein will be considered “authentic and admissible without testimony or further identification.”

There are, however, a litany of drawback to using ER 904. First and foremost, you are restricted to admitting evidence that is referenced in ER 904(1)-(6). This includes a host of specific documents such as medical records, bills, weather, or traffic signal reports among others. ER 904(6) also includes a catch all provision that states that “a document not specifically covered by any of the foregoing provisions but relating to a material fact and having equivalent circumstantial guaranties of trustworthiness, the admission of which serve the interests of justice” may also be admitted under the rule. However this catch all provision has significant limitations.

Washington courts have determined that, concerning medical documents, ER 904 can only be used to admit documents prepared for the purpose of medical treatment and not documents prepared for forensic purposes Fox v. Mahoney, 106 Wash.App. 226, 22 P.3d 839 (2001). Further, ER 904 is not generally understood to cover documents that present conclusions or opinions. Lutz Tile, Inc. v. Krech, 136 Wash.App. 899, 151 P.3d 219 (2007). However, just because you’re unlikely to get medical evidence admitted that overtly draws a conclusion, the medical facts contained therein can often tell their own quiet convincing story.

ER 904 is a useful tool to have in your belt heading into litigation and while it is not useful in every circumstance, it may allow you to submit opinions that would otherwise be excluded. If you have any questions about ER 904, please do not hesitate to contact me at or 971-867-2731.

Posted by: Zachary Goldberg-Johns.