Berger v. General Motors Corp.
Berger v. General Motors Corp.
Dissenting Opinion
(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.
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.
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.
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.
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.
Opinion of the Court
This is a workers’ compensation appeal. The hearing officer awarded plaintiff compensation benefits for the closed periods April 23, 1983, to May 1, 1983, and June 19, 1983, to July 17, 1983. The Workers’ Compensation Appeal Board reversed. This Court originally denied plaintiff’s application for leave to appeal on July 25, 1985. The Supreme Court remanded the case on March 5, 1986, for consideration as on leave granted. Berger v General Motors Corp, 424 Mich 893 (1986). We reverse.
Plaintiff filed two appeals to the wcab, which were considered jointly. Only the second appeal is at issue.
Plaintiff filed his second petition for a hearing on May 13, 1983, alleging that on April 22, 1983, plaintiff developed a disabling condition caused by the constant repetitive use of his hands in gripping rails at his work. A hearing was held on January 24, 1984.
Plaintiff testified that "on and off” for ten years he installed stabilizer bars in trucks. When production requirements declined, however, plaintiff was assigned to various other jobs. Eventually he was placed in frame assembly. Plaintiff’s job was to pick up and drop rails on a hook with the assistance of another employee. Two rails were used for each frame. Each rail weighed 125 to 150 pounds and was approximately eight feet long. After the rails were dropped on the hook, plaintiff riveted metal parts to the rails in four places. Plaintiff had difficulty keeping up with the production line speed of fifty-two per hour. He com
After a week and a half, plaintiff "started having trouble” with his hands. He would wake up in the middle of every night and "have to pound against the wall to get feeling in them.” He went to first aid at work two or three times and his hands were treated by being placed in a whirlpool. He was told after the third visit to file a claim for workers’ compensation benefits. Plaintiff received a medical evaluation from his family physician, Dr. House, who recommended that plaintiff not return to the rail pin-up job. Plaintiff also received a medical evaluation from the plant physician, Dr. Benkirk, who recommended that plaintiff be restricted to jobs requiring limited gripping for two weeks. Plaintiff ultimately went on sick leave from April 23, 1983, to May 2, 1983, because his hands were bothering him. While on sick leave, Dr. House treated plaintiff with some unspecified medication.
When plaintiff returned to work, he was assigned to a "prop shaft job,” which required installing and tightening two bolts on a shaft with an air gun. After six to seven weeks, plaintiff again started waking up in the middle of the night with a numbness in his hands. He also developed a stomach problem and came close to passing out on the assembly line. He took sick leave from June 19, 1983, to July 17, 1983. Plaintiff eventually returned to the stabilizer job and had not gone on sick leave up to the time of the hearing. He
Numerous documents were admitted by both parties with no objections. Included were Dr. House’s medical evaluations. These were introduced by defendant and consisted of responses on claim forms for accident and sickness benefits. In the April 25, 1983, evaluation, Dr. House stated "yes” in response to the question "In your opinion, is the patient’s disability caused by his work for General Motors or any other employer?” As explanation, Dr. House noted that the problem was from vibrations and gripping. In the section requesting diagnosis, Dr. House described a decrease in nerve sensation and "numbness in hands from use of vibrating tool grips.” On the June 22, 1983, evaluation, Dr. House again answered yes to the question regarding the cause of plaintiff’s disability and explained that the problem was from vibrations. He repeated his earlier diagnosis. On July 6, 1983, Dr. House also diagnosed acute anxiety reactions and hypoglycemia in a supplementary report on plaintiff’s claim for sickness and accident benefits.
The hearing officer awarded plaintiff benefits for both closed periods. The wcab reversed in a two-to-one decision. The majority indicated that, in the absence of medical depositions, all it had to evaluate was plaintiff’s testimony:
We do not doubt that plaintiff at one time had a problem with numbness in his hands but the testimony that he gave at trial does not convince us that it was related to his work. Just because its occurrence [sic] was contiguous with his job of*176 picking up the rails does not show by a preponderance of the evidence that it was caused by this work. Moreover, the numbness was still present off and on during the time he was returned to the prop shaft job. There were no objective findings by the medical personnel at the plant and the treatment by Dr. House, whatever it was, was minimal to say the least. We believe the closed awards granted by the Administrative Law Judge were incorrect based on our review of his record and we hereby reverse. All benefits are denied.
Dissenting member Phelps would have affirmed on the basis of Dr. House’s statements in the evaluation, admitted into the record without limitation.
A claimant must prove his or her entitlement to workers’ compensation benefits by a preponderance of the evidence. Aquilina v General Motors Corp, 403 Mich 206, 211; 267 NW2d 923 (1978). The standard of appellate review of wcab decisions, however, is provided for by Const 1963, art 6, § 28. See Aquilina, supra, p 213, n 4. Fact-findings made by the wcab are conclusive in the absence of fraud if there is any competent evidence in the record to support them. Schaefer v Williamston Community Schools (After Remand), 150 Mich App 186, 190; 387 NW2d 856 (1986).
Where the wcab rejects undisputed controlling testimony in making its findings, this Court must reject those findings and apply the law to the evidence presented in the record. Cornish v Jackson & Tindle, Inc, 285 Mich 566, 569; 281 NW 329 (1938); Gacesa v Consumers Power Co, 220 Mich 338, 341; 190 NW 279 (1922). The wcab cannot draw inferences contrary to undisputed evidence. White v Revere Copper & Brass, Inc, 383 Mich 457, 462-463; 175 NW2d 774 (1970).
The evidence presented at the hearing consisted of plaintiffs testimony and the parties’ exhibits,
This is thus not a case such as Kido v Chrysler Corp, 1 Mich App 431; 136 NW2d 773 (1965), where the plaintiffs evidence was unrebutted but also unsupported. We recognize 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, 111-113; 240 NW2d 286 (1976), lv den 406 Mich 870 (1979). Had the wcab said that Dr. House’s evidence was not believable, our result would be different and we would defer to that finding. If the wcab disbelieved such evidence, however, it should have expressly said so, rather than leaving this Court to infer a rejection. If the wcab rejected the evidence, it apparently did so because of a preference for a different source of evidence (plant medical personnel) and a feeling that Dr. House’s subsequent treatment was insufficient. We do not believe the wcab should reject the evidence for such improper
We therefore believe the wcab erred in reversing the decision of the hearing officer. We reverse and remand for reinstatement of the hearing officer’s award of workers’ compensation benefits.
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.