Berger v. General Motors Corp.

Danhof, C.J.

(dissenting). I respectfully dissent. I do not believe that it can be concluded that the wcab did not find the written hearsay statements of Dr. House unworthy of belief. By concluding that the plaintiff had not fulfilled his burden of proof, the wcab implicitly concluded that it was not convinced by Dr. House’s statements.

In addition, the wcab is not required to accept hearsay statements, such as were presented in the instant case, even if they are unrebutted.¹ While the majority correctly notes that this Court has held that hearsay statements may be considered by the wcab when no objection is raised, Holford v General Motors Corp, 116 Mich App 488; 323 NW2d 454 (1982), such a rule does not concern the weight which the wcab must give such evidence. Even if the evidence is facially uncontroverted, the wcab should still be able to question its validity, as the facts of the instant case strongly demonstrate. The expert opinion evidence upon which the majority relies in the instant case is nothing more than hastily scribbled responses to questions on three identical claim forms for sickness and accident benefits. The physician’s office completed these forms on different occasions one or two days after treatment was rendered to plaintiff. It is not clear that Dr. House signed these forms himself or what part he played in their completion. One of the three forms was "signed” with a rubber stamp of Dr. House’s signature. Someone else’s initials in parentheses followed the "signature.” It is possible that these forms were routinely completed by clerical personnel.

Moreover, it has been held that the wcab is not "obliged to accept or extend verity to any expert opinion,” Fergus v Chrysler Corp (After Remand), 67 Mich App 106, 112; 240 NW2d 286 (1976), lv den 406 Mich 870 (1979), citing Koschay v Barnett Pontiac, Inc, 386 Mich 223; 191 NW2d 334 (1971). Such a rule applies with even more force when the expert opinion is hearsay.

In my opinion, evidence in the record casts a questionable light on plaintiff’s assertion that the numbness in his hands was caused by the "rail pin-up job.” Plaintiff only worked on that job for three to four weeks. There were no objective symptoms. During the same period of time, plaintiff also suffered from a condition which was variously described as an emotional disorder, depression, and anxiety.² Defendant also complained of chest and stomach problems and testified that on one occasion he almost fainted. The record also suggests that plaintiff possibly suffered from diabetes and hypoglycemia. An unsigned memo in defendant’s medical file stated: "per foreman — every time employee is unhappy w/job or foreman he is asking to spend time at Medical.” Finally, the file indicates a long list of a variety of other medical complaints over the course of several years. Under these circumstances and because there was no medical testimony which had been taken under oath or which had been tested by cross-examination on the issue of causation, the wcab should not be compelled as a matter of law to accept plaintiff’s claim that his injury was causally related to his tenure on the "rail pin-up” job.

The cases upon which the majority relies stand generally for the proposition that the wcab may not draw inferences contrary to undisputed evidence. There is a difference between drawing an inference that is totally contrary to all of the evidence on point and rejecting a plaintiff’s theory in situations where the proffered proof is weak (but uncontroverted). White v Revere Copper & Brass, Inc, 383 Mich 457, 462; 175 NW2d 774 (1970). The authority to reject a plaintiff’s weakly supported theory of a case is inherent in the wcab’s role as factfinder. Kido v Chrysler Corp, 1 Mich App 431, 433; 136 NW2d 773 (1965).

I would affirm the decision of the wcab.

1 There is also a question whether the expert opinion evidence was in fact "unrebutted.” Frequently, logical inferences drawn from non-expert testimony or evidence may call expert testimony into question. It could be concluded from the facts discussed infra that the issue of causation was in fact controverted.

2 That illness was the subject of another appeal to the wcab. In that appeal, the wcab concluded that plaintiff had failed to show there was a causal or aggravational relationship between the nervous condition and his employment.