Wojciechowski v. General Motors Corp. , 151 Mich. App. 399 ( 1986 )

151 Mich. App. 399 (1986) 390 N.W.2d 727

WOJCIECHOWSKI
v.
GENERAL MOTORS CORPORATION

Docket No. 82940.

Michigan Court of Appeals.

Decided May 5, 1986.

Bockoff & Zamler, P.C. (by Daryl Royal), for plaintiff.

Evans & Nelson, P.C. (by John J. Hays), and Willard W. Wallace, for defendant.

Before: MacKENZIE, P.J., and CYNAR and G.T. MARTIN,^[*] JJ.

G.T. MARTIN, J.

Plaintiff applied for workers' compensation benefits, claiming occupational disability to his knees and lungs as a result of his employment with defendant, General Motors Corporation. Specifically, plaintiff alleged that the disabilities were sustained as a result of exposure to atmospheric pollutants and excessive standing, climbing and kneeling. Following proceedings before a hearing officer in March and April of 1980, plaintiff was awarded weekly workers' compensation benefits in the amount of $132. On appeal, the Workers' Compensation Appeal Board reversed the award and denied plaintiff benefits. Subsequent to this determination, cross appeals were filed by each party.

I

On appeal, both parties contest various evidentiary and procedural decisions made at the hearings below. First, plaintiff contends that the WCAB erred in holding that plaintiff's rights to cross-examination would not have been abridged had the hearing officer admitted the deposition testimony of Dr. Jay Claude Day, one of defendant's expert medical witnesses, even though Dr. Day did not have his handwritten notes at the time of the deposition. Dr. Day testified at the deposition that plaintiff's extrinsic asthma was not related to his employment and, further, that plaintiff was not disabled as a result of his pulmonary disease. However, because Dr. Day possessed only his report and some x-rays at the time of his deposition, and did not possess his handwritten notes, the hearing officer excluded his deposition testimony on the basis that the absence of the notes rendered effective cross-examination impossible. We agree with the WCAB that plaintiff's right to cross-examination would not have been abridged had the deposition testimony been admitted. Both parties' attorneys were present at Dr. Day's deposition and defendant's attorney offered to continue the deposition so that plaintiff's attorney could view Dr. Day's handwritten notes. However, plaintiff's attorney declined this offer. Further, plaintiff's attorney did not seek to present Dr. Day as a witness at trial although he could have done so. See 1979 AC, R 408.40f(a)(iv) (Rule 10f[a][iv]). Plaintiff's attorney did, however, extensively cross-examine Dr. Day at the deposition regarding his report and findings. Under these circumstances, the WCAB did not err in reversing the hearing officer's ruling which excluded Dr. Day's deposition testimony. Cooper v Chrysler Corp, 125 Mich. App. 811, 818-819; 336 NW2d 877 (1983).

Plaintiff next argues that the WCAB erred in holding that the hearing officer abused his discretion in quashing the deposition testimony of Dr. Donald Larkin, another of defendant's expert witnesses. We agree. The hearing officer had ruled that the deposition had been taken within ten days before the trial date and, therefore, was inadmissable pursuant to subsection (1)(ii) of 1979 AC, R 408.40f (Rule 10f). Contrary to the WCAB'S ruling, we find that the hearing officer did not abuse his discretion by requiring strict compliance with the rule. The mandatory nature of the rule is demonstrated by the inclusion of the word "shall" in its directives. When used in such a context, the term "shall" excludes the idea of discretion. McAvoy v H B Sherman Co, 401 Mich. 419, 446-447; 258 NW2d 414 (1977), reh den 402 Mich. 953 (1977). Accordingly, the WCAB erred in finding an abuse of discretion in the hearing officer's decision to exclude Dr. Larkin's deposition.

Defendant argues, however, that Rule 10f on its face and as applied violates defendant's constitutional guarantees of due process of law, as well as MCL 24.232(2); MSA 3.560(132), which states that "a rule ... shall not discriminate in favor of or against any person...." Defendant failed to support its argument with citations to any authority.

A party may not leave it to this Court to search for authority to sustain or reject its position. A statement of position without supporting citation is insufficient to bring an issue before this Court. [Butler v DAIIE, 121 Mich. App. 727, 737; 329 NW2d 781 (1982).]

Accordingly, we choose not to review this argument.

Plaintiff also argues that defendant's attempt to elicit the live testimony of Dr. Day and Dr. Larkin at the hearing before the hearing officer was improper under Rule 10f(iv) because defendant did not give the hearing officer and plaintiff ten days notice from the initial hearing date of his intent to produce such witnesses. The hearing officer excluded the testimony on the same basis, and, therefore, we find that no prejudice was caused to plaintiff by defendant's attempt to admit it.

Defendant argues that the hearing officer erred in admitting the depositions of Dr. Howard P. Schwartz and Dr. Joseph Howard Hunt into evidence. Both of these witnesses testified that plaintiff's health problems were related to his employment. Defendant argues that the depositions were not properly filed with the tribunal pursuant to GCR 1963, 306.6(1). Defendant's argument is unpersuasive. As was required by Rule 10f(a)(iii), the depositions were in the possession of the hearing officer prior to the hearing. Further, the stenographer certified on each deposition that the witness was duly sworn and that each deposition was a true record of the testimony given by the witness. GCR 1963, 306.6(1). Thus, we conclude that the depositions were properly filed.

Plaintiff next argues that the WCAB erred in utilizing Michigan Employment Security Commission records that had been properly excluded by the hearing officer. In its opinion, the WCAB stated:

At his retirement interview with the defendant's adjuster, Frank C. Downs, plaintiff indicated that he had no job-related injuries and the excluded MESC records presumably are in contradiction with his claim of disability in these proceedings.

Defendant, on the other hand, responds that the WCAB did not err in referring to the MESC records in such a manner and further, that the hearing officer erred in relying on MCL 421.11(b); MSA 17.511(b) to exclude evidence of the decision of the MESC hearing referee in the MESC records.

We find persuasive plaintiff's argument that the hearing officer properly refused to admit the MESC records. MCL 421.11(b); MSA 17.511(b) expressly provides that these records "shall not be used in any action or proceeding before any court or administrative tribunal" unless the MESC is a party. Nonetheless, the WCAB, in its opinion, referred to the prior exclusion of these records and then presumed that the records were in contradiction with plaintiff's claim of disability in these proceedings. Such a presumption suggests that the board may have relied upon evidence which was not before it. Thus, we find the board's action to be error.

It should be noted that defendant's reliance on Sias v General Motors Corp, 372 Mich. 542; 127 NW2d 357 (1964), in support of its position on this issue is misplaced. Sias was decided prior to the cited statute's 1965 amendment which added the prohibition against the use of MESC records and determinations in a judicial or administrative proceeding unless the MESC is a party to the action. Thus, Sias is inapplicable to the resolution of the instant issue.

Finally, defendant argues that the hearing officer erred as a matter of law in excluding the medical records of plaintiff's treating physician, Dr. Hilda M. Hensel. The hearing officer had excluded the records based on the defective nature of Dr. Hensel's certificate of authenticity and completeness. Defendant argues that Dr. Hensel's certificate of authenticity and completeness is substantially the same as that set forth in the annexed exhibit to GCR 1963, 506.7(2). However, plaintiff accurately responds that the same rule requires that the copy of the medical records sought to be admitted must be accompanied by a sworn certificate verifying that the record is a true and complete reproduction of the original. Here, Dr. Hensel did not submit such a sworn certificate. Thus, although the form of the certificate submitted by her may have been substantially the same as that shown in the exhibit annexed to GCR 1963, 506.7(2), the hearing officer did not err in refusing to accept her medical records into evidence.

II

Plaintiff's next contention is that the WCAB erred in holding that it could consider all of the evidence, regardless of whether some of it was properly excluded by the hearing officer, because the parties argued in the alternative that even if the excluded evidence were admitted their respective positions would still prevail. The board concluded in its opinion that its consideration of all the evidence in the record would not prejudice the parties because they had raised these alternative arguments. We agree that the board's consideration of all the evidence on this basis was error requiring reversal.

A party wishing to make alternative or contingent claims should not be placed in the perilous situation of either foregoing one claim or having one claim used against another as an admission. [Slocum v Ford Motor Co, 111 Mich. App. 127, 134; 314 NW2d 546 (1981), lv den 414 Mich. 886 (1982).]

Here, it was sound advocacy for plaintiff to argue that even if he were to lose on the evidentiary rulings, he should still prevail on the substantive issue. The WCAB erred in concluding that plaintiff would not be prejudiced by its consideration of inadmissible evidence, merely because plaintiff presented the alternative argument.

III

The next issue on appeal is whether, on remand, § 373 of the WDCA, MCL 418.373; MSA 17.237(373), which creates a presumption of no loss of wage earning capacity upon a claimant's receipt of nondisability retirement benefits, should be retroactively applied to this case, which arose before the statute's January 1, 1982, effective date.

Here, because the statute at issue did not state its retrospective or prospective intention in clear and express language, interpretation of the statute is required. As a matter of statutory construction, statutes are presumed to operate prospectively unless the contrary intent is clearly manifested. Franks v White Pine Copper Div, 422 Mich. 636, 670-671; 375 NW2d 715 (1985). However, an exception to this general rule is recognized where a statute is remedial or procedural in nature. Id., p 672; Hansen-Snyder Co v General Motors Corp, 371 Mich. 480, 485; 124 NW2d 286 (1963).

Thus, statutes which operate in furtherance of a remedy or mode of procedure and which neither create new rights nor destroy, enlarge or diminish existing rights are generally held to operate retrospectively unless a contrary legislative intention is manifested. [Franks, supra, p 672.]

As stated, § 373 establishes a presumption.

[T]he function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption. [Widmayer v Leonard, 422 Mich. 280, 289; 373 NW2d 538 (1985).]

As such, we find that § 373 is a rule of procedure and, accordingly, applies retrospectively to this case. On remand, the presumption will operate to the benefit of the defendant.

IV

The next issue argued on appeal is whether plaintiff has fully sustained his burden of proving that his wife was dependent upon him as of his last day of work. Without substantiation, the hearing officer found plaintiff's wife to be dependent. Because of the apparent lack of evidence in support of this finding, the parties presumed that the finding was improperly based upon the conclusive presumption of dependency contained in MCL 418.331(1); MSA 17.237(331)(1), which was struck down as unconstitutional in Day v Foote Memorial Hospital, 412 Mich. 698; 316 NW2d 712 (1982). The parties dispute whether Day should be retroactively applied to the instant case. We find this issue to be frivolous because MCL 418.331; MSA 17.237(331) only applied when the claimant was deceased. Plaintiff testified at the administrative hearing below and we find no evidence in the lower court's record that plaintiff has since become deceased. Thus, the parties' assumption that the hearing officer's unsubstantiated finding of dependency was based upon the conclusive presumption set forth in the cited statute is entirely unfounded.

V

Next, the parties argue whether the provisions of MCL 418.354; MSA 17.237(354), which allows the coordination of workers' compensation benefits with other retirement benefits, should apply to the instant case, which arose before the effective date of the provision. In Franks v White Pine Copper Div, supra, our Supreme Court held that an employer could offset those retirement benefits under the statute that became payable after the statute's effective date of March 31, 1982, notwithstanding when the injury occurred. 422 Mich. 651, 664. Thus, if plaintiff is found on remand to be disabled, defendant may only offset pension benefits that became payable to plaintiff after March 31, 1982.

VI

Finally, defendant argues that if plaintiff wins an award on remand, the award should bear interest at the rate of ten percent. Indeed, effective July 30, 1985, the Legislature amended MCL 418.801(6); MSA 17.237(801)(b) and reduced interest on compensation awards from twelve percent to ten percent. Accordingly, where an employer pays compensation on or after July 30, 1985, pursuant to an award, interest on the award shall be paid at ten percent from the date each payment was due. See Selk v Detroit Plastic Products (On Resubmission), 419 Mich. 32, 35; 348 NW2d 652 (1984).

Remanded to the Workers' Compensation Appeal Board for further proceedings consistent with this opinion. We order that, on remand, the Workers' Compensation Appeal Board reconsider the hearing officer's findings and in so doing, it may not consider evidence which we concluded the hearing officer properly excluded. We further set a time limit of sixty days for compliance with this opinion. We reserve jurisdiction solely on the issue of expeditious disposition. Either party may bring this aspect of our opinion to the Court's attention by motion.

NOTES

[*] Retired circuit judge, sitting on the Court of Appeals by assignment.