dissenting.
Because I believe that the contents of the Federal Register concerning the effectiveness of thermography were both relevant and material, I would hold that the Administrative Law Judge (ALJ) and the Industrial Claim Appeals Office (Panel) committed reversible error by not taking judicial notice of this document. Accordingly, I respectfully dissent.
As the majority correctly notes, 44 U.S.C. § 1507 (1988) provides in pertinent part that: “The contents of the Federal Register shall be judicially noticed and[,] without prejudice to any other mode of citation, may be cited by volume and page number.” •
Pursuant to CRE 402, all relevant evidence, subject to certain exceptions, is admissible, and evidence which is not relevant is not admissible. A matter to be judicially noticed must also be relevant. See Mozzetti v. City of Brisbane, 67 Cal.App.3d 565, 136 Cal.Rptr. 751 (1977). Under CRE 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Additionally, CRE 103(a) requires that error may not be predicated upon a ruling *507excluding evidence unless a substantial right of a party is affected.
Further, as noted by the majority, taking judicial notice of the “contents” of the Federal Register is not equivalent to taking judicial notice of the truth of those contents. See Gilbert v. State, 218 Cal.App.3d 234, 266 Cal.Rptr. 891 (1990); Ralston v. Hawes, 334 Mass. 51, 133 N.E.2d 589 (1956).
Here, petitioners sought to have the ALJ take judicial notice of a “final notice” published by the Health Care Financing Administration (HCFA), a division of the Department of Health and Human Services, entitled, “Medicare Program; Withdrawal of Coverage of Thermography.” 57 Fed.Reg. 54798 (November 20, 1992). This notice announced HCFA’s withdrawal of Medicare coverage of thermography for all indications based upon its conclusion that thermography is not effective in diagnosing or treating illness or injury. The notice described the legal basis for HCFA originally providing reimbursement for the use of thermography and also studies it reviewed in concluding that thermography was no longer effective.
The Federal Register notice explained that among the statutory provisions relevant to the determination of coverage is § 1862(a)(1)(A) of the Social Security Act, which prohibits payment for any expenses incurred for items or services “which are not reasonable or necessary for the diagnosis or treatment of illness or injury or to improve the functioning of malformed body member.” (emphasis added)
The notice continued:
We have interpreted the term (reasonable and necessary) to exclude from Medicare coverage those medical and other health care services that are not safe and effective, as established by acceptable clinical evidence. Generally stated, we consider effectiveness to mean that there is probability of benefit to individuals from a medical item, service, or a procedure for a given medical problem under average conditions of use: that is, in day-to-day medical practice. In day-to-day medical practice, physicians diagnose and treat clinical conditions following inquiry into an individual’s medical history, performance of a physical examination, and interpretations of a variety of diagnostic tests and procedures. Among other things, we expect that a covered diagnostic test or procedure will provide useful data to establish or rule out the presence of a given disease or injury.
57 Fed.Reg. at 54799.
Here, the issue is whether petitioners were required to pay for “thermographic studies” prescribed by an authorized treating physician. The Panel noted in its decision that the determination of this issue depended upon whether thermography constituted reasonable and necessary medical treatment. See § 8 — 42—101(1)(a), C.R.S. (1995 Cum.Supp.) (every employer shall “furnish such medical ... treatment ... as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury.” (emphasis added)).
In my view, 44 U.S.C. § 1507 required both the ALJ and the Panel to take judicial notice of the contents of the above described HCFA notice concerning its view of the utility of thermography. As long as this information was relevant and not otherwise ex-cludable, it should have been considered.
Because the standards for Medicare coverage of thermography (items or services which are reasonable and necessary) are so similar to the standards at issue here under the Workers’ Compensation Act, evidence that HCFA had concluded that thermogra-phy was not a reasonable and necessary treatment was certainly relevant.
This, of course, is not to admit the truth of the contents of the Federal Register. To do that would require one to accept at face value the statements contained in the Federal Register that thermography in fact was not a reasonable or necessary medical treatment. However, taking judicial notice of the contents of the Federal Register would still allow a factfinder to consider the weight, if any, to give to the fact that a federal agency had taken the position it did with respect to the utility of thermography and the issue of coverage under the Workers’ Compensation Act.
*508In my view, it is insufficient to conclude, as the AL J did, that the contents of the Federal Register were inadmissible because they demonstrated that the effectiveness of ther-mography was subject to reasonable dispute and, therefore, for that very reason, were not a proper subject of judicial notice under CRE 201. That analysis reflects a confusion between taking judicial notice of the contents, as opposed to the truth of the contents, of the Federal Register.
As noted, allowing judicial notice of the contents of the Federal Register would, in effect, merely constitute admission of probative evidence on the issue of whether ther-mography was a reasonable and necessary treatment. Further, 44 U.S.C. § 1507 provides a specific requirement that the contents of the Federal Register must be judicially noticed, and I perceive no basis for that federal statute to be ignored here.
I-also disagree with the majority that the ALJ’s failure to take judicial notice of the contents of the Federal Register here, if error at all, was harmless.
I agree that the ALJ properly denied petitioners’ request to allow an unendorsed expert witness to testify; thus, petitioners were not able to present any evidence concerning their view that thermography was not a reasonable and necessary medical procedure. Under these circumstances, the refusal to take judicial notice of the contents of the Federal Register adversely affected a substantial right of petitioners and therefore was not harmless error.
Accordingly, I would set aside the order of the Panel and remand for further proceedings.