Morris v. General Motors Corp. , 394 Mich. 453 ( 1975 )

394 Mich. 453 (1975) 231 N.W.2d 646

MORRIS
v.
GENERAL MOTORS CORPORATION

Docket No. 56636.

Supreme Court of Michigan.

Decided July 23, 1975.

Glotta, Adelman, Dinges, Taylor, Davis & Middleton for plaintiff.

Richard R. Norris for defendant.

MEMORANDUM OPINION. Felix A. Morris sought workmen's compensation from defendant in connection with what he contended was a continuing disability involving his right knee. A referee denied the sought-for benefits and the Workmen's Compensation Appeal Board, over two dissents, affirmed the referee. The Court of Appeals, over a dissent by Judge O'HARA, affirmed the appeal board. 57 Mich. App. 534; 226 NW2d 554 (1975).

Morris now seeks leave to appeal to this Court. In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the Court of Appeals and remand to the appeal board for further proceedings consistent with our opinion in this case.

The videotape admitted into evidence by the referee over vigorous objection should not have been admitted.

The question was whether Morris could do a tire inspection job without "deep knee bending".

Morris does not contend that no one can do the job without deep knee bends. For the tape to be admissible, however, it must be relevant to the question in issue — it must go to the question whether Morris can perform the job.

To be admissible, the tape must depict an "experiment" conducted under similar conditions, which in this case would require not only that it be the same job Morris was asked to perform, but also that the person performing it be of similar height and perhaps have a similar knee problem.

The tape showed that a man 5'10" can inspect three sets of tires without doing deep knee bends. Apparently some 520 sets must be checked by one man each day. The tape does not show whether even the 5'10" man can do all 520 without deep knee bending. More to the point, Morris was not 5'10" but 6'1" in height.

We remand for a new hearing by a referee (administrative law judge) who has not viewed the now-excluded videotape.

T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, M.S. COLEMAN, J.W. FITZGERALD, and LINDEMER, JJ., concurred.

SWAINSON, J., took no part in the decision of this case.