*1 Petitioner-Respondent-Petitioner, Luann Gehin,
v. Respondent- Group Insurance Board, Wisconsin Appellant. Supreme Court 9, argument September 2004. Decided No. 03-0226. Oral February
2005WI 16 (Also 572.) reported 692 N.W.2d
Ill *3 For the there were petitioner-respondent-petitioner Shneidman, Hawks & briefs Bruce F. Ehlke and Ehlke, S.C., F. Madison, argument by and oral Bruce Ehlke. the cause was respondent-appellant argued
For *4 Gibson, with attorney general, Charlotte assistant A. attor- Peggy Lautenschlager, whom on brief was ney general.
¶ ABRAHAMSON,C.J. Luann Ge- 1. S. SHIRLEY unpublished claimant, seeks review of hin, reversing appeals an order of the of the court of decision County, Krueger, Judge.1 Dane Moria Circuit Court for Group had aside the Wisconsin The circuit court set in- of Luann Gehin's Board's termination Insurance benefits. come continuation insurance Relying Perales, ¶ 402 U.S. 2. on Richardson v. (1971), appeals that al- the court of concluded reports Group though medical Insur- the written hearsay, they constituted relied on were ance Board Group upon which the Insurance substantial evidence findings Board could base its and decision. following presented: uncor- issue is Does (that alone is con-
roborated written testimony) by in-person substan- troverted constitute Group support Insurance Board's tial evidence findings, for its which turn form basis factual i.e., law, the claimant's benefits conclusion of April 30, 1997? should be terminated as written conclude that the uncorroborated We (that are medical alone controverted in-person testimony) not constitute substantial did Group support fac- Insurance Board's evidence to findings the claimant's and decision to terminate tual Accordingly, the decision of the we reverse benefits. appeals and affirm the order of the circuit court court of reversing Group Insurance Board. the decision
HH Group the decision of the 5. This court reviews or court Board, court's order Insurance circuit Bd., 03-0226, unpublished Group v. Wis. Ins. Gehin No. 2003). (Wis. slip op. App. Ct. Oct. *5 of decision.2 We review the decision of the appeals' Insurance Board to terminate the claimant's Group 40.08(12) (2001-02),3 § benefits to Wis. Stat. pursuant of the provides Group which decisions Wisconsin only by Insurance Board are "reviewable action for certiorari in the circuit court for Dane County."4 review, In this certiorari the issue presented sufficiency us review of requires which the Insurance Board relied in reach- upon Group ing sufficiency its decision.5 The of the evidence on certiorari identical review is substantial evidence
2 directly "[does] This court not deal with the correctness review, appeals brought the court of decision to us on nor do we any owe that decision deference." Co. v. & West Bend Labor Comm'n, 110, 117, Indus. Review 149 2d 438 Wis. N.W.2d 823 (1989); DNR, City 424, 446, Creek v. Oak 185 Wis. 2d 518 (Ct. 1994). App. N.W.2d276 3All to the Wisconsin Statutes are references to the 2001-02 version unless otherwise noted. 40.08(12) § provides Wisconsin Stat. as follows: 227.52, Notwithstanding any action, s. decision or determination board, board, of the the Wisconsin retirement the teachers retire- board, group compen- ment insurance hoard or the deferred proceeding sation board in an administrative shall be reviewable only by County an action for certiorari in the circuit court for Dane any party proceeding, that is commenced to the administrative including department, days within 30 after the date on which action, notice of the decision or determination is mailed to that
party,
any
proceedings
party
may appeal
to the certiorari
decision of that court.
review,
scope
generally
a certiorari
of review is
(1)
agency
kept
jurisdiction;
limited to whether the
within its
(2)
(3)
law;
proceeded
theory
arbitrary,
on the correct
was
oppressive, or
and represented
unreasonable
its will and not its
(4)
judgment;
might reasonably
have made the order or
finding
City
based on the evidence. Kraus v.
Waukesha Police
determina-
review of
for the
test used
of the statutes.6
chapter
tions under
227.57(6)
that "the
provides
Stat.
7. Wisconsin
for that
judgment
its
not substitute
court shall
*6
any disputed
the evidence on
of
weight
as to the
agency
aside
however, set
shall,
The court
of fact.
finding
if it
to the agency
remand the case
action or
agency's
of
any finding
finds
on
action
agency's
depends
that the
evidence."7
substantial
not supported
fact
the words "substan-
meaning
the
of
This case involves
227.57(6).
§in
evidence," as used
tial
485,
Comm'n,
10,
2d
662 N.W.2d
51,
261 Wis.
2003 WI
& Fire
Bd.,
35,
2d
153 Wis.
294;
Trust Funds
Employe
v. Wis.
Schmidt
(1990).
40,
268
449 N.W.2d
within the
sufficiency
the evidence falls
the
The issue of
Annuity &
Harris v.
ex rel.
fourth standards. State
third and
(1979).
Bd.,
646, 652,
668
2d
275 N.W.2d
Pension
87 Wis.
6
County Dep't
Harris,
652; Stacy v.Ashland
2d at
87 Wis.
(1969);
595, 602,
N.W2d 630
159
Welfare, 39 Wis. 2d
Pub.
& Pension
Employees'
Sys./Annuity
Ret.
v. Milwaukee
Teriaca
829,
30,
II Group ¶ 9. In orderto test whetherthe Insurance findings Board's of fact and conclusionsof law are supportedby Group evidence, the substantial wefirststatethe "Findings InsuranceBoard's ofFact"set forthin April 16, 2002, its Final Decisionand Order.Wethen supporting examinethe recordfor evidence thesefind- ingsoffact. findings present ¶ 10. The critical of fact in the caserelate to the nature and extent of the claimant's disability, ability the claimant's to workfull time and ability per $979.37 the claimant's to earn at least disability and the of The nature and extent month.8 subject expert ability of time be the to work full opinion.9 findings Group of Insurance Board's 11. The
fact are as follows. University began at claimant work 12. The Hospital in Madison, Wisconsin, 198610 Wisconsin employment began regular, aas house- full-time injured May keeper claimant 15,1992, the in 1991.11On hospital.12 gradually Due to her at at the back work worsening pain, leave 11 claimant went on medical April day hospital days was later; her last of work 16, 1993.13 a claim form to claimant filed collect 13. The April
long-term benefits 1993.14 income continuation Long-term are continuation insurance benefits income disability.15 year paid claimant's the first of a after the claimant would Finding of Fact #15 calculates what appears "The to indicate earn in this record have had to case: time benefits gross ICI at the those that Ms. Gehin's benefits Therefore, per month. order were terminated were $979.37 5.14 employed purposes of section gainfully to be considered - contract, capable would have to be she 4.b. ICI month, hour in a full-time earning per per $5.63 $979.37 position." Comm'n, 583, 585, Co. Indus. Wis. Grip Mfg. v. Giant (1956).
74 N.W2d
10Finding Fact #4.
11Id.
12Finding Fact #5.
13 Id.
14Finding #6. of Fact
15Finding Fact #14. of coverage claimant income had continuation insurance during appeal.16 at all times material her ¶ 14. Claimants receive "if benefits reason any medically physical determinable or mental im- pairment" they engage any are "to in unable substantial gainful activity employee reasonably for which the is qualified regard employee's with due to the education, training experience, prior and economic status."17 activity gainful activity An is considered substantial if earnings activity equal from the would be at least to the income continuation benefits at the time those (In benefits were Final terminated.18 its Decision and Group Order the Insurance Board sometimes refers to satisfying phrase "inability engage the contractual in disabled.")19 gainful activity" "totally a substantial According Group ¶ 15. to the Insurance Board's findings, "gainfully employed" to be considered under contract, the claimant the instant case "would 16Finding Fact #6.
17 Finding of Fact #14. 18The claimant must meet the contractual definition of gainful activity" "substantial provided Section 5.LL-4.b of the contract, which states as follows: months, complete inability by the first 12
After the EMPLOYE'S any medically determinable, physical impair- reason or mental ment, any engage gainful activity substantial which reasonably qualified regard EMPLOYE is with due to the education, training, experience, prior EMPLOYE'S economic activity An gainful activity status. if considered substantial earnings activity equal gross from that would be at least to the period Income Continuation benefit for the same time. Finding of Fact #14.
19See, e.g., Law Conclusion of #16. *9 per earning capable month, or $979.37 to be have position."20 per in a full-time hour $5.63 Group, company the The United 16. Wisconsin administering charge the income continua- then program, the claimant's insurance determined tion approved disability May began for 1993, her 3, on and benefits June 1993.21 insurance income continuation September Dr. John In late Whiffen surgery spinal performed the on claimant's fusion through spring following September From the back.22 job retraining "involved in a 1997, the claimant was through program the of Wisconsin Division State Vocational Rehabilitation Rehabilitation."23 Vocational assigned unpaid basis, to claimant, on where, Madison, Institute in Mendota Mental Health according Institute, her duties a letter from to computer, typewriter "typing a and included both filing, answering telephone du- other clerical and fatigue, pain fell the claimant short to ties."24Due according per to week, of the scheduled hours Group finding, "generally worked Insurance Board's per Nevertheless, week... ."25 24 and 30 hours between job positive performance assess- claimant received a Group referring report, to Insurance ment.26 In this only job experience accepted since that in her Board injured, being full time. not able work she was 20Finding of Fact #15.
21Finding of Fact #6.
22Finding of Fact #5.
23 Finding of Fact #7.
24Finding of Fact #7.
25Id.
26Id. request Group, At of United Wisconsin provided update Dr. Whiffen a written of the claimant's January 30, condition as of 1997.27Dr. Feb- Whiffen's ruary update 7,1997, written concluded that the claim- up ant restrictions, "couldwork to full-time with includ- ing change position every need minutes 45-60 *10 Whiffen five minutes."28 Then 11, on March Dr. 1997, job, the stated that claimant could return to her former with restrictions.29 It is not clear from record job" job training whether the "former was claimant's program at Mendota Mental Health Institute her housekeeper University. work aas at early May Group In 1997, United Wisconsin longer that the determined claimant no themet criteria applicable under benefits section con- Specifically, Group tract.30 United Wisconsin wrote to claimant, "The medical that documentation we have support you incapable obtained does not are any gainful engaging occupation. Information from [Division Rehabilitation] DVR of Vocational indicates you performing position have been in a full time beyond Mendota Health Institute. Therefore, benefits (This April payable."31 30,1997 are not statement is not According Finding correct. to the of Fact #7 and Mendota performing Institute, Mental Health the claimant was not Institute.) position
in a full-time at the mid-August ¶ 20. 1997 the claimant saw Mer- physical Hospital therapist iter Michael Miller.32Mr. 27Finding of Fact #10.
28 Id.
29 Id.
30 Finding of Fact #8.
31Id.
32 Finding of Fact #12. capacity evaluation and a functional conducted Miller ability '[biased client's lack on the "concluded that carry anything negli- squat, but lift, stand, walk and appear employable gible in her does loads, she "33 Group Board dis- The Insurance current condition.' stating disparaged evaluation, Mr. Miller's counted and appear that Mr. Miller from the record that "it does not The definition."34 follow- had the benefit of contract Group ing Dr. Kenneth Wisconsin asked month, United including files, the claimant's Miller's Redlin to review report.35
¶ 21. asked United Wisconsin The claimant Group decision,36and on termination reconsider its 1997, Lemon saw the claim- December Dr. Richard available, Unlike had Miller, Mr. Dr. Lemon ant.37 according Group Board, contrac- to the Insurance gainful activity." language defining "substantial tual Group concluded that "Dr.Lemon Insurance Board claimant] [the did not meet the contrac- concluded that *11 long-term quoting definition," Dr. Lemon's tual benefit report as follows: that Ms. symptoms back I believe pain] [low
Because of restrictions. permanent to be under work Gehin needs day working is of 8 hours capable I believe that she standing sitting and can alternate between where she lifting to be every I that she needs 30 minutes. believe any also to avoid pounds. no She needs more than Ms. bending twisting. or I believe that Gehin stooping, recep- as a employed position in a such easily could using to or sit is able stand tionist where she 33Id. 34 Id
35Id. Fact #8. Finding of
37Finding Fact #11. headset
telephone Certainly, for comfort. Ms. Gehin light computer could also do some paperwork or work. I only years find it hard that Ms. Gehin believe age totally is unemployable.38 quoting report ¶ 22. Dr. Lemon's Wisconsin Group obviously accepted Insurance Board Dr. Lemon's expert opinion perma- medical that the claimant was nently disabled and that could full she work time with permanent namely restrictions, work she must sitting standing every alternate and between 30 min- pounds; utes; that she lift no more than 5 that she bending stooping, twisting; must avoid that that she capable grasping, manipulation, grasp- was ing fine firm repetitive of her use feet intermittent movements. January 6, 1998, On United Wisconsin
Group upheld its termination of the claimant's ben- efits.39
¶ 24. A month later, claimant asked the De- partment Employee Trust Funds to review the July termination of her benefits.40 On 1998, Department affirmed the benefits, termination of timely appealed. the claimant 38Id.
39Finding of Fact #8. Department of Employee Trust Funds and the Wiscon- (which sin Group Insurance Board Depart- attached Funds) ment of Employee charged Trust are administering with income continuation insurance Wis. plan. Stat. - 40.62(1). §§ 40.03(2)(ig), 40.03(6)(a)l, See State also Income (available Continuation Insurance Fact Sheet 2004 online at *12 http://etf.wi.gov/publications/et8918.pdf). 40Finding of Fact #9. According Group Board's to the Insurance 25. Group
Findings and Fact, United Wisconsin both substantially Department's "relied determinations opinions Ms. Gehin's and evaluations of the medical treating by Whiffen, Dr. Ms. John Gehin's condition independent physician, Lemon, an Dr. Richard [United by UWG Wiscon- consultant retained medical Group Group]."41 found that Board The Insurance sin functional both "believed the Drs. Lemon Redlin capacity Mr. Miller have evaluation conducted incomplete invalid."42 been Group Insurance Board conducted The evidentiary hearing Exam- 2, 2001, before on October Pre-Hearing According Barry Con- to iner Stern.43 appeal Memorandum, the issue on was: sole ference Funds] [Department Employee err Trust "Did the long- [claimant's . to terminate its . . determination beyond benefits] insurance term income continuation - April contract 4.b. of the 30, 1997, under Section 5.14 January 1995, United Wisconsin between effective (UWG) Insurance] [Group Group Board?"44 and the Shannon retained Dr. William claimant hearing. testify He examined the claimant had records, her medical had also reviewed 1999 and Group including United Wisconsin gave expert his Dr. and consultants. Shannon doctors opinion of not met definition the claimant activity gainful being engage substantial able 41Finding of Fact #10. #12. Finding of Fact
43Finding of #2. Fact 44Finding #3. of Fact *13 "totally contract, under the is, that that she was dis- by abled" as defined the contract.45 the "Conclusions of Law" section of its Group Final Order, Decision and Insurance Board pointed out that the claimant had the burden of satis- " fying 'totally the definition of disabled'" under the Group contract.46 The Insurance Board concluded that determining "that the claimant was not disabled meaning [United within the of the contract, Wisconsin Group] [Department Employee Funds] and the of Trust reasonably accepted [the opinions claimant's] treating physician [Dr.Whiffen] [United and of Wiscon- Group's] expert [Mr. Miller], sin over who did not have the benefit of definition, the contractual and of non-contemporaneous opinion [the claimant's] expert [Dr. Shannon]."47
HHHHHH ¶ 29. We next turn to examination of the upon Group which the Insurance Board relied Findings Findings in its of Fact. As is evident from the Findings, of Fact and the references to the record Group Findings Insurance Board based its of Facts reports on the written medical submitted three Group apparently doctors. The Insurance Board relied reports provide expert opin- on the doctors' medical physical ions about the claimant's restrictions, work her ability type time, to work full and the she work could do. No evidence is in the record about the claimant's earning ability job part in either a full time
45Finding of Fact #13.
46Conclusion of Law #16.
47Conclusion of Law #17. imposed physical on the restrictions meet the would reports. medical claimant parties agree, we, that the so do 30. The that formed the basis written medical three Findings Group of Fact were Insurance Board the hearsay.48 at the of the three doctors testified None hearing. *14 hear-
¶ testified at the 31. Three witnesses expert ing: witness, the Shannon, Dr. the claimant's by person employed claimant, Bass, a staff and Diane Department Employee Trust Funds. the testimony hearing, Dr. oral at the 32. In their disagreed consistently with and the claimant Shannon hearsay reports Whiffen, Lemon, of Dr. Dr. the written Depart- the Dr. that had been submitted Redlin Employee the claimant's Trust Funds about ment physical abilities. the claimant's Dr. Shannon testified engaging
pain dysfunction prevented her from gainful employment," "any in 1997 kind either Although contrac- Dr. did have the Shannon (that inability "totally is, the disabled" tual definition activity) gainful engage at his 1999 in substantial the claimant, when he was shown examination of testimony during hear- his contractual definition certainly opined ing definition, fit that she he report. opinion Mr. Miller's consistent with examined functional 34. Dr. Shannon also capacity and concluded that of the claimant evaluation change Mr. Miller's 1997 had since there been no "statement, one made other than Hearsay is hearing, trial or offered testifying at the declarant while Stat. of the matter asserted." Wis. truth prove (a) 908.01(3). an oral or written asser § "A 'statement' 908.01(1). tion ...." Wis. Stat. testimony written evaluation. Dr. Shannon's oral at the hearing corroborated Mr. Miller's written re- port, as well Mr. Miller's conclusion about disability. claimant's Group disregarded
¶ 35. The Insurance Board Dr. expert opinion testimony, stating Shannon's that Dr. Shannon did not treat or examine the claimant in period.49 Similarly Group the relevant time Insur- disregarded ance Board written evaluation report of Mr. Miller.50 testimony disagreed
¶ 36. The claimant's with Dr. Dr. Whiffen's and Lemon's about the amount of ability she rest needed and her to work full-time. The Group purposes Insurance Board for all intents and ignored testimony physi- the claimant's own about her ability. cal Although opined February
¶ 37. "Dr. Whiffen [the claimant] up 7, 1997, that could work to full-time including change position restrictions, with a need to every 45-60 minutes for minutes," five the claimant *15 incapable sitting claimed she of was for more than 30 minutes at a time and that her rests often needed to be longer more than an hour —far the than five minutes suggested report. in Dr. Whiffen's written The claimant disagreed also with Dr. Lemon's assessment her physical condition. regard unpaid
¶ 38. With her to vocational reha- program bilitation at Mendota Mental Health Institute (described program), in a letter from that the performed claimant testified that she the described taking clerical tasks while rests. She testified that she throughout pain program, Group had this and the 49Finding Fact #13. 50Finding of Fact #12. pain to a fact that due Board found as
Insurance fatigue, the scheduled fell short of the claimant working "generally per 24 and 30 between week, hours per ."51 week... hours expressly corroborated the claimant 39. The types description of tasks she clerical
letter's performed party job-training program. Neither in the by live in the letter the matters stated has controverted testimony The letter described or otherwise. The letter ex- as "low level." tasks claimant's clerical up" plains to be considered "test that the claimant must "[a]ny job system;52 the state a within clerical higher system, position, a is at the state within clerical on-the-job 'range' typical re- DVR that of the than (and past claimant] [The training all DVR candidate. up a placements), to considered for be must 'test' process system. job entire clerical within state problematic in its self and be take considerable time can job [sic]."53 clerical tasks at the claimant's Thus qualify training program the claimant for did not employment. position in state clerical reported that she was unable 40. The claimant pain complete program and was of her because college complete technical courses unable they that her too difficult. She testified were because given supervisor program her advised in the stopped pain, if the claimant it was best level describing program The letter Finding of Fact #7. than hours worked less the claimant that sometimes stated years to out of three the total time worked equated week and ability to limited work half that because of her no more than necessarily variety of medical leaves and a pain due to injury. with her connected 52Exh. 22.
53Id. participation program. in the The claimant cor- thus roborated the letter that she was not able to be at the job training program more than 24 to 30 a hours week (sometimes less), pain, that she was in and that she was position (standing sitting) unable to remain in one or any length of time. Nothing ¶ 41. in the letter about the claimant's job unpaid training at Mendota Mental Health Institute any reaches conclusion about whether the claimant engage gainful activity could in substantial under the Nothing contract. in the letter describes what kind of jobs the claimant was able to work what sums of money the claimant was able to earn in 1997 had she Assuming been able to work 24 hours a week. per claimant was able to work week, 24-30 hours we calculate basis the record that she would have per salary had to earn between hour at 1997 $8-$10 per rates to earn wage month. The $979.37 federal minimum spring per in the of 1997 was hour. $4.75 Department Employee ¶ 42. The Trust Funds single present failed to witness live corroborate reports contents the written medical about ability claimant's to work full time and their version of physical Group her work restrictions. The Insurance solely Board relied on these medical in its Conclusions of Law that the claimant could work full permanent time with work restrictions. Although Group
¶ 43. Insurance Board calcu- lated the minimum amount the claimant would have spring engaging had earn in the of 1997 to be (and gainful activity, findings substantial none of its evidence) job none of states that was available permanent which fit the claimant's work restrictions per and would enable her to earn month on $979.37 part Group either a full time basis. Insurance *17 finding quoted merely Dr. Lemon's a of fact as Board stating report "could that the claimant medical receptionist easily employed able to a where she is as telephone using for comfort.. . a headset sit stand or light computer paperwork [or] work. I or do some could only years of believe that Ms. Gehin find it hard to age totally unemployable."54 testimony testimony, only live 44. Bass's Employee Department presented Trust primarily the income about the terms of Funds, was steps in the contract and the insurance continuation proceedings. Deci- the Board's Final An examination of that a number of the record reveals and Order and sion (such leading up underlying the events facts injury, surgery, contract, and the insurance the back procedure) history either were a of the administrative testimony. supported undisputed best, At live or reports the claimant is declared that medical job namely restrictions, full time with able to work standing, sitting and could alternate between which she pounds, in which than 5 she need not lift more in which any carrying, must and which she need not do she twisting. stooping, bending hear- or The written avoid physical say re- the claimant's medical about upon ability time, full which work strictions Group Findings of Fact and its Board based Insurance benefits, are claimant's terminate the its decision to by live in fact contradicted were uncorroborated testimony. pre- testimony and witnesses The claimant's prima able to she was not facie case that
sented activity gainful engage terms under the in substantial 54 Finding of Fact #11. time, contract. She could not work full if at all. any length
She could not stand or sit time and long periods. needed rest When the claimant was in- jured housekeeper she was a who bent, twisted and (10th grade), lifted. The claimant had limited education job experience injury and her before her was house- keeping. unpaid job training program Her at Mendota *18 Mental Health Institute trained her for tasks that were jobs, below standard for state clerical and she was at job training program a maximum of 24-30 hours week. She was not able to continue at the Institute pain. because of her
¶ 47. Therefore, if the uncorroborated written reports medical are eliminated from consider- support ation, no evidence exists the record to findings that the claimant was able to work full time permanent physical with the work restrictions de- by scribed the doctors or the Board's conclusion of law require- that the claimant did not meet the contractual ments.
IV ¶ 48. We next examine whether uncorroborated medical constitute "substantial evi- phrase dence" as that is used in both certiorari and Wis. 227.57(6).55 § Stat. Substantial evidence has been de- quantity quality fined in the case law as "that and accept evidence which a reasonable man could as ad- history For a of the concept discussion of substan tial law, American Blythe administrative see E. Stason, Law, "Substantial Evidence" in Administrative 89 U. Pa. (1940-41). L. Rev. 1026 state that Cases a conclusion."56 support equate "a mere scintilla" more than evidence is substantial "conjecture specula- more than evidence57 and tion."58 or evidence, an agency admissibility As to common ordinarily is not bound
hearing examiner govern- The statute or rules of evidence. statutory law cases before evidence in contested admission of ing 227.45(1), explic- Wis. Stat. agencies, states, itly not be hearing examiner shall bound agency
[A]n
or
agency
statutory rules of evidence.
common law or
having
testimony
all
hearing examiner
admit
or
shall
value,
exclude immate-
probative
but shall
reasonable
Ba-
rial,
unduly repetitive testimony ....
irrelevant
relevancy, materiality
probative
principles of
sic
fact.
govern
questions
of all
proof
force
shall
re-
hearsay medical
written
*19
Accordingly,
in
before
proceedings
as evidence
ports are admissible
were
Board and such
Insurance
Group
case.
admitted
the present
properly
56
DNR,
936, 940, 236
v.
2d
N.W.2d
DeGayner & Co.
70 Wis.
DNR,
(1975).
v.
140
Menomonee Falls
Village
See also
217
(1987);
Med.
Gilbert v. State
579, 594,
2d
133 Although ¶ 51. the admission of agency procedures simpler makes administrative (who litigants frequently unrepresented) both the are agency personnel, evidentiary and the the relaxed stan- proceedings degener- dard not to meant allow the point agency ate where an administrative relies only required, on unreliable evidence. The courts are § 227.57(6), agency under Wis. Stat. to "set aside action agency or remand the case to the agency's if it finds that the depends any finding action on of fact that is supported by substantial evidence."59 Properly admitted evidence not neces- sarily constitute substantial evidence. defining
¶ 53. substantial evidence more than years ago, Supreme 65 the Wisconsin Court declared in Folding Works, Furniture v. Inc. Wisconsin Labor Re- "[m]ere lations Board that uncorroborated . . . does not constitute substantial evidence."60
59 227.57(6) Wisconsin Stat. reads: agency's depends any If agency action on fact found proceeding, a contested case shall not court substitute its judgment agency weight for that as to the evidence on any finding disputed shall, however, of fact. The court set aside agency agency action or remand the case if to the it finds that the agency's depends any finding supported action of fact that is not by substantial evidence in the record. Furniture, Folding (quoting Wis. Consol. 235). Edison, 305 U.S. at
Indeed, it appears the concept hearsay, standing alone, cannot support finding factual in an administrative setting has even earlier roots in Wisconsin. See A. Breslauer Co. Comm'n, (1918). v. Indus. 167 Wis. case, This rule can traced to the New York v. Carrol *20 Co., (1916).
Knickerbocker Ice
other Wisconsin cases.63 61 Furniture, (quoting 232 at 189 Consol. Folding Wis. 229). Edison, stated: Supreme U.S. The U.S. Court 305 at provisions purpose is to free of this and similar
The obvious
compulsion
technical
so
hoards from the
rules
administrative
of matter which would be deemed
the mere admission
judicial
incompetent
proceedings
would
invalidate
flexibility
But
assurance of a desirable
administrative order.
this
justify
procedure
go
as to
orders
does not
so far
having
probative
Mere
in evidence
rational
force.
without a basis
not constitute substantial
or rumor does
uncorroborated
It
evidence is more than mere scintilla.
evidence.... Substantial
might accept
as
mind
omitted).
means such relevant evidence
a reasonable
(citations
support
adequate to
conclusion
Edison, 305
at 229.
Consol.
U.S.
Furniture,
Folding
2d
N.W.2d
Comm'n,
380, 387,
(1953); A. Breslauer
Procedure 1944 Wis. Rev. ground their find- permitted these bodies [administrative] *21 the court example, reiterated that "administrative bodies should never ground administrative findings uncorroborated upon hearsay."64 56. The rule hearsay uncorroborated alone does not constitute substantial evidence allows an agency to utilize hearsay evidence while not nullifying the relaxed of rules evidence in administrative hear- ings. The rule prohibits an administrative from agency relying solely on uncorroborated hearsay reaching its decision. This defining rule substantial evidence has been followed in Wisconsin since Folding Furniture was decided in 1939. There been suggestion has no that this rule has hindered of state operation agencies.
ings upon testimony which violatefs] fundamental principles probative instance, upon force—for hearsay uncorroborated rumor."). legislature
The
placed
has
limits on the weight hearsay may
given
be
proceedings.
small claims
Wisconsin Stat.
799.209(2) provides:
"The proceedings
governed
shall not be
statutory
the common law or
rules of
except
evidence
those
relating
privileges
[e.g., lawyer-client,
under ch. 905
physician-patient, spousal] or to admissibility under s. 901.05
[HIV tests]. The court or circuit court commissioner shall admit
having
all other
value,
evidence
reasonable probative
may
but
exclude
repetitious
arguments.
irrelevant or
evidence or
An
finding
may
essential
solely
based
on a declarant's
of fact
oral
statement unless it would be admissible under the
added).
rules
(emphasis
evidence"
published
At least one
decision in Wisconsin has
require
read this statute to
corrobo
rative evidence of an oral
statement in order to form
Works,
the basis of
finding.
essential
Scholten Pattern
Inc. v.
Inc.,
Roadway Express,
253, 152 Wis. 2d
448 N.W.2d 670
(Ct.
1989).
App.
Falls,
Village Menomonee
Other administrative See, hearsay e.g., admissibility weight evidence. Wis. 5.39(5)(a)l (Feb. 1999) ("The § administrative Admin. Code INS it as may hearsay evidence and shall accord judge law admit judge weight much administrative law considers war- the 5.03(5) circumstances.); PC by the Wis. Admin. Code ranted 2003) (Jan. may be admitted into the record (Hearsay evidence discretion hearing the the examiner commission hearing weight as the examiner or commission accorded such circumstances.); by the Wis. Admin. Code deems warranted (Unless 12.10(4)(e) 2002) board, objected by the (July TCS testimony person for the who summary of of a witness any part of the record lieu of hearing made requested the shall be hearsay exception an to the testimony of witness as the that proba- for whatever by be the board rule and shall considered decision.); making testimony its Wis. that has tive value 2000) 140.16(1) (Hearsay evidence is (Sept. DWD Admin. Code no issue value but probative if it has reasonable admissible hearsay evidence unless solely be decided on Stats, evidence]). [rules under ch. evidence is admissible 11.13(2) (Jan. 40.07; § § Admin. ETF Stat. Wis. Code Wis. 2004). 58. The substantial evidence rule proscribing an agency's on relying solely uncorrobo- rated hearsay is sometimes called the legal residuum rule.67 This rule on is based part reasoning "since hearsay, nature, due to its second hand is inher- ently suspect, determination based solely can conjecture."68 never more than rule legal residuum is supported by notion act courts should as a check on the agencies by reviewing decisions for fundamental "gives fairness.69 The rule to the court as reviewing natural guardian public's legal rights, addi-
67Whether called the rule residuum or the substantial test, in Wisconsin the substantial evidence rule has functionally operated like the residuum Wig- rule. See John (Tillers more, 1983) Wigmore on Evidence 122-24 4b at Rev. ("The generally residuum rule has been abandoned. It has been replaced . evidence1 standard. .. 'substantial Some courts, however, effectively original have purpose subverted the substantial evidence holding standard that hearsay evidence in and of itself cannot constitute 'substantial evi ") (footnotes omitted). dence.'
68 Simon, Leonard M. The Weight To Be Hearsay Given By Evidence Agencies: "Legal Administrative The Residuum" Rule, (1959-60). 265, 26 Brook. L. Rev. 267 69See, Schuckers, e.g., Daniel R. "Legal The Residuum Rule" Should Be Abolished in Pennsylvania, Q. 75 Bar Pa. Ass'n (Jan. 1, 2004), Gedid, 3 John L. "Legal The Residuum" Rule Should Pennsylvania Be Retained in Because Us Function To of Process, Insure Fundamental Fairness and Pa. Due lb Bar Ass'n (Jan. Q. 2004); 7 Blythe Stason, E. "Substantial Evidence" in Law, 1026, U. Administrative 89 Pa. L. (1940-41); Rev. 1029 (3d Schwartz, § Bernard Administrative Law 7.4 376 ed. 1991). 138 de- to control over tional device retain informalities of terminations, proceed- which due easily go astray."70 ing may has criticized residuum rule been legal hybrid commentators "a produces the rule
by because hear all freely commissioners could situation which could make but they pleased, evidence incompetent of Davis legal argues no use it."71 Professor 70 68, Simon, supra at 268. note 71 69, Schwartz, Arthur supra (quoting § note 7.4 at 376 (1981)); Larson, Compensation 79.30 The Law Workmen's (discuss (2004) § 127.02 Compensation Law Larson's Workers' in the ing legal compen residuum rule workers' use of has been fol setting "[T]he 'residuum rule' sation follows: has jurisdictions, although it been majority lowed in the announced.") under attack ever since it was constant Davis, Hearsay in Administrative Hear- Culp Kenneth See (1964) rule); 689, (criticizing the ings, 32 Geo.Wash. L. Rev. Gellhorn, and Notice in Ernest Rules Evidence Official ("[I]t 1,24 has Hearings, 1971 Duke L.J. Formal Administrative scholars, application has severely been criticized its supra § 4b reasoning."); Wigmore, note judicial strained ("The [citing been generally rule has abandoned residuum but federal, proposition, York for this Kansas and New cases contrary and New Mexico cases for citing then California by the substantial evidence replaced It has been position]. courts, however, effectively have subverted standard.... Some evidence standard original purpose of the substantial in and of itself cannot constitute holding that New York [citing federal, New Mexico and substantial evidence omitted).). (internal quotations and cases] footnotes (1965): 410-412 Cooper, State Administrative Law But see urged hand, rule has the existence of the On the other it good, accomplished the fear that it considerable because presentation agencies has led to insist on careful invoked cases; examination of the evidence offered contested detailed inducing agencies apply it has effect and because had the
139 legal to the alternative residuum rule not to is allow agencies administrative to use evidence, unreliable but grant to them discretion to determine what then if warrant, reliable and circumstances to allow the rely agency legal on it.72 The basic criticism ignores reliability residuum rule is that it the of evi- incompetent hearsay dence the under rule. Departure legal from residuum rule has Unemployment Compen-
also been
in
criticized.
1981
(Pa.
Ceja,
1981),
sation Board Review v.
judges sitting non-jury trial civil cases. 72Davis, supra 71, 697; Culp Davis, note Kenneth Law, Rocky Residuum Rule 1, Administrative Mt. L. Rev. (1955). 4-6 Review, Unemployment Comp. Ford v. Bd. 498 A.2d (Pa. 1985). 449, 451 74Unemployment Ceja, Comp. Bd. Review v. 427 A.2d 1981). (Pa. 631, 645
75Ford, 498 A.2d
Ridley
at 451. See also
School Dist. v.
(1994)
Review,
(a
Unemployment Comp. Bd.
637 A.2d
stand).
finding
solely
of fact based
cannot
*25
the legal
have affected
may
Perales
62. While
cases, many
security
in federal social
rule
residuum
function like
rules that
to
under
operate
states continue
rule.76
residuum
legal
76
69, §
Schwartz,
7.4 at 377.
supra note
See
rule.
legal
residuum
Many
some form
apply
states
(hear
482-l-065-.04(9)(b) (2004)
See,
Admin. Code r.
e.g., Ala.
that
any
fact" unless
material
say
prove
is "not sufficient
court-recognized excep
hearsay
be admissible under
would
Bd., 12 Alaska
tion);
Libby v. Alaska Indus.
Libby, McNeill &
(1950)
solely on hear
("Undoubtedly an
based
584,
award
588
v.
stand....");
Spruce,
Mountain
Inc.
Black
say cannot
1983) ("[I]t
(Colo.
Johnson,
is not error
1241, 1243
App.
E2d
670
evidence,
long
hearsay
as
agency to admit
for an administrative
findings....");
agency's
for the
support
it is not the sole
I960)
(Idaho
Co.,
487, 490
E2d
Utils.
351
Application Citizens
("[The
hearsay."); 11
finding
upon
make a
based
agency] cannot
("The
3(4)(a)(3) (2004)
hearing
3:100,
Ky.
Regs.
Admin.
Section
relevant,
reliable and
may
deemed
officer
receive evidence
hearsay
pre
if
considered
including
that would be
evidence
shall not be
court,
hearsay evidence
except
that
sented
decision.");
hearing officer's
support
in itself to
sufficient
1986) ("The
(La.
2d
1066
Whitfield,
v.
488 So.
Credit
may [agency]
base
firmly
jurisprudence
establishes
nothing
hearsay and
solely
hearsay. Reliance on
its decision
sufficiency
the evidence
competence
more shatters
reit
[W]e
proof....
burden of
employer's
and undermines
its
may not base
employer
that the
jurisprudence
erate
direct,
offers
contra
hearsay when the claimant
entire case on
(citations
Rules,
omitted));
part
Minnesota
dictory evidence."
(2003)
may
("Hearsay
be used
5601.3145,
evidence
subp.
any direct evidence
supplementing
explaining
purpose
it would
finding
unless
support
in itself to
but is not sufficient
actions");
R. 06
Code Miss.
objection in civil
admissible over
(if
7(c) (2004) ("However, hearsay evidence
038, Section
the determination
basis for
shall not be
sole
presented)
(2004)
24.9.312
officer"); Mont. Admin. R.
by the review
facts
supple-
and considered
("Hearsay
may be received
evidence
63. The court of
concluded in the in-
appeals
Perales,
stant case that
it should follow Richardson v.
(1971),
U.S. 389
rather
than Folding Furniture.
Perales,
the United States Supreme Court concluded
evidence
hearsay
is substantial evidence under the
security
social
statute and that the
reliance on
agency's
evidence to
its
conclusion did not
support
legal
violate due
process.
security
social
statute
issue
evidence,
ment other
but such
not be
*26
considered to support
finding
a
unless it would otherwise be
objection
admissible over
in civil actions or under the Montana
Toth,
(N.J.
Evidence.");
Rules of
272,
re
418 A.2d
Super.
1980)
Ct. App.
"[TJhe
Div.
rule in this State is
factfinding
that a
legal
or
determination cannot be based on hearsay alone.
Hearsay may be employed to corroborate competent proof, or
competent proof may
given
be supported
probative
or
added
by hearsay testimony.");
force
Trujillo v. Employment Sec.
(N.M. 1980)
Comm'n,
747,
610 E2d
("[UJnemployment
compensation
right
[is] a substantial
a
public
as matter of
policy.
may
benefits
this case
not be denied on the basis
hearsay
of controverted
hearsay
alone. Controverted
under
qualify
these facts does not
evidence.");
as substantial
Bermudez
Blum,
1979) ("While
11,
v.
(App.
423 N.Y.S.2d
Div.
determination,
after fair hearing, may be sup-
ported
hearsay, may
it
not
entirely thereon.");
he based
Utah
("Hearsay
Admin. R. 51-2-12 C.
may
evidence
be used for the
purpose of supplementing
explaining
evidence,
other
but it
shall not be sufficient in
support
finding
itself to
a
unless it
judicial
would be admissible in
proceeding.");
Wis. Admin.
Code
("Hearsay
DWD 140.16
evidence is admissible if it has
probative
reasonable
value
solely
but no issue
be decided
hearsay
hearsay
unless
evidence is admissible
Stats.").
under ch.
Schopler,
See also Ernest H.
Comment
Hearsay
Proceedings
Evidence in
State Adminis-
Note—
Before
(2004)
Agencies,
trative
in Perales stated: "The evidence, if substantial shall be fact, any supported conclusive."77 doubt on the continued viabil- 64. Perales casts Edison, which Furni- upon Folding of Consolidated
ity away relied.78 The Perales court explained ture that "mere uncorrobo- Consolidated Edison language rated is not substantial evidence as follows: hearsay" sense,
Although are in the technical not live before the produced because their content examiner, hearing we feel that the claimant and the single too much into the Appeals Court of read sentence Edison. The contrast the Chief from Consolidated very cited, drawing, page Justice was at the was formally deemed inadmis- with material would be material "without judicial proceedings sible in but with having probative in evidence rational force." a basis rejection by the Court of This was not blanket of reli- irrespective administrative reliance on ability probative opposite value. The was case.79 written that Perales 65. One commentator has "a rejection
has not been
blanket
interpreted
*27
reli
residuum rule. The rule bars not 'administrative
ance
reliance on
hearsay,'
but
has concluded that "it is
alone."80 Another commentator
discarded
having
doubtful
that Perales can be viewed as
effect,
in
adjudications.
Rule
Hearsay
agency
77Perales,
Seventies
79Perales,
80 69, Schwartz, § at 381. supra note 7.6 reports exception, medical a class in least constitute Security disability Social cases."81 66. Perales must be examined context and is present applicable not to the The case. Perales discus- against backdrop sion must be understood that (rather applicant security was denied social benefits terminated); having than benefits that the Social Secu- rity Administration considers more than one million disability applications year;82 that most claimants are represented procedures counsel; and that must kept simple inexpensive possible as for the system to work. Furthermore, in Perales doctors' written
reports by in-person testimony. were corroborated evidence in Perales consisted written medical testimony claim, harmful to Perales' two witnesses' reports, government- the written and a controverted paid testimony doctor's that corroborated the substance hearsay reports.83 of the written ¶ 68. Courts that follow Perales conclude that hearsay can be substantial if evidence the evidence has probative person sufficient force reasonable accept adequate support agency's it as conclu- sion.84 Rose, Hearsay Adjudications, Administrative L. James (1992). 459,
6 Admin. L. J. Am. U.
82Rose,
supra note
81,
at 475.
83 Perales,
Watson,
State
395-96. See
v.
84 Schwartz, supra note 7.6 at 382. *28 indicia of have arguably Medical reports force; to have probative therefore seem and reliability experts impartial independent, by are furnished they to the hear- exceptions are admissible arguably and rule. say Nevertheless, reliability probative case in the present medical reports
force of the written of Missis- Court by Supreme As noted are suspect. in the medical reports examining in sippi context, compensation workmen's be and bar would likely that the bench quite It is receiving approve should if this Court scandalized persons ex unsworn statements parte, in evidence of Compensation doctors, even Workmen's other than cases. role our scheme important occupy doctors
While human, are, all, merely they after things, wholly from the frailties free not be considered therefore, in the nothing, There is rest of us. beset the member of the medical may be a fact that a witness justify his reasonably may said profession and restriction requirements from the exemption testimony in an giving others apply to which would The admission adversary proceeding. reversible error.85
constitutes Lemon who Dr. was written report 71. One specifically Group Wisconsin retained United was her claim. with claimant connection evaluate the contractual with provided Dr. Lemon was Although and the activity" gainful of "substantial definition form he was figure, earnings month per $979.37 McLaurin, 1359, 1362 370 So. 2d Corp. v. Georgia-Pacific 1979). (Miss. *29 complete opinion
asked to did not ask for his whether the claimant fit the contract definition. opinion
¶ 72. Dr. Lemon never rendered an engage the whether claimant was able to substantial gainful activity under the contract. Dr. Lemon re- "totally marked that he could not believe she was unemployable." responsive This remark is not or rel- gainful activity evant the to issue of substantial under person may contract; the the under contract a he employable earning capacity but the is less than that specified under the contractual definition.
¶ Dr. 73. Lemon's remark about his disbelief that "totally unemployable," Group the claimant is which the incorporated Findings Insurance Fact, Board in its is Group finding inconsistent with the Insurance Board's of fact that "Dr. Lemon concluded that did Gehin long-term meet the contractual benefit definition."86 completed Dr. 74. Whiffen a form dated Novem- asking patient totally 27, 1996, ber whether the is markings internally disabled. His form are response question printed In inconsistent. to the on patient totally form whether is now disabled from the patient's job, clearly. Dr. Whiffen checked "Yes"box (Although responses might another his be inter- preted that the claimant could return to her former job). box, He also checked the "No" but somewhat less clearly. response He checked another box "No"in to the question totally whether claimant was disabled any opinion other work. Dr. Whiffen's about totally any whether claimant was disabled for other printed work consisted of check marks boxes on presented form to him.
86Finding of Fact #11. Nothing refers to the contrac- in the form "totally disabled," definition tual gainful activity. engage in cannot substantial claimant totally not know definition of Therefore we do what using. Dr. was disabled Whiffen question response to the what duties performing incapable of the doctor wrote claimant is "bending twisting heavy lifting."
Checking boxes, pounds lifting 11-24 Dr. Whiffen restricted per bending of 0-2 times "maximum restricted hour." *30 January completing 1997, the 1996 In after
form, Dr. advised of the contract definition Whiffen was gainful activity not advised that substantial but was of only disqualified if able claimant she were the would per pre- In the form earn at least month. to $979.37 January was asked in Dr. never sented Whiffen totally claimant was and never answered whether the gave opinion never disabled under the contract and that claimant that Dr. Whiffen wrote the matter. experiencing pain up time, after to full was could work change position sitting, prolonged and to "must be able every min." min for 5 45-60 appears May have 1997 Dr. to Whiffen ability thoughts about claimant's
had second the capacity he called a functional record shows for the thereafter. Dr. retired soon evaluation. Whiffen Dr. Lemon's tes- Dr. Whiffen's 79. Without responses, they timony their their what meant about Group reports the Insur- are reliable as for not basis findings permanent her of fact about ance Board's ability physical and her to work work restrictions the Board's conclusions law full-time totally under the contract. claimant disabled was Weighing ¶ 80. the nature doctors' re sponses, importance sought proved of the facts to be hearsay medical to the outcome proceedings economy; and considerations of the evi opposing hearsay reports; any dence the lack of supporting hearsay reports; corroborative evidence Department Employee the failure of the Trust Funds testify; to call the to doctors and the outcome each party, Group our conclusion Insurance Board solely should not have relied on the evidence is appropriate case, in the instant even under Perales.87
¶ 81. We see no in reason deviate the instant long-standing case from the rule in Wisconsin as an- Folding consistently nounced Furniture and followed years subsequent for 65 cases that uncorroborated hearsay alone does not constitute substantial evidence hearings. compet- rule balances ing expediency concerns about administrative and fun- damental fairness. requires contrary
¶ 82. Fairness that in the face of testimony, in-person Group if the Insurance Board seeks terminate a benefits, claimant's it should be required to corroborate evidence if that evi- *31 is to dence form the sole for basis its The harm decision. having to claimants in their income insur- continuation ance benefits terminated on the basis of controverted reports, opportu- written nity medical without an reports, to cross-examine the authors of the ex- Group ceeds the burden the Insurance Board to call 87For a of rejected discussion a these factors court that rule, legal Reguero the residuum see v. Teacher Standards & (Or. 1991). Comm'n, 822 Practices E2d 1171 reports. hearsay medical to corroborate those a witness adopt Accordingly Perales rule the do not the we present case.
V appeals three reasons The of offered court adopted why why reasoning the should be Perales applied legal in the rule not be the present residuum should any convinced of them. case. We are not appeals concluded First, the of court apply legal not when the the opposing party residuum rule should subpoenaed author a could the of have challenge hearsay report the written to controvert placed report. appeals onus on of Thus the court subpoena Group Insurance Board's claimant expert to ability subpoena The to witnesses. claimant's expert real."88 be "more theoretical than witnesses persuaded should that the burden We are therefore placed to witnesses who will on claimant furnish Perales, Bernard Schwartz notes: analyzing In Professor addition, subpoena examining right of the claimant to majority of. physicians real in the vast .. is more theoretical than unrepresented by are counsel. Even when where claimants cases counsel, right subpoena never is one that almost there is to normally practice limits and fee ... exercised. realities law give lawyer the time for is not able mean that the claimant Asking agency hearing. until for to examine the file needed continuance, with the need subpoenas at time means a hearing give up appear for the lawyer needed to the time time. second 69, § Schwartz, at 382. supra note 7.6 Plante, v. see Glenn subpoenas experts, For discussions 413; 575, In re 24, 2, 2d 676 N.W.2d 269 Wis. 2004 WI 72, Cline, 224 Wis. 2d Imposition Alt v. Sanctions (1999). N.W.2d 21 *32 produced correct the deficiencies in the evidence Department Employee of Trust Funds. appeals
¶ 85. Second, the court of concluded that legal apply not residuum rule does when the hear- say exception ais document as an admissible to the hearsay legal rule, rule. The residuum asserts appeals, hearsay courts of is based on notion that only evidence is unreliable when it not fall does within hearsay exception. appeals' position The court hearsay exception evidence that is admissible as an legal the rule does fall within the residuum rule has adopted been some cases and recommended some commentators.89 parties agree,
¶ 86. The we, as do that the medical properly records were admitted under the evi- relaxed dentiary applicable hearings. rules to administrative parties dispute whether the evidence is admissible exception hearsay under either Wis. Stat. § 908.03(6), regu- as documents made the course of 89See, e.g., v. Dep't, State Taxation & Revenue Bransford (N.M. 1998) (admissible 827, E2d App. hearsay may satisfy legal rule); Morgenstern Dep't residuum Motor v. (4th Vehicles, 2003) (officer's 111 Cal. App. 4th Dist. report employee was admissible under business records exception hearsay to the rule support department's and will findings); Glicksman, Elliot B. Hearsay The Modern Rule Should Find Application, Administrative Law 78 Neb. L. Rev. (1999) ("The 135, 140 residuum rule a satisfactory is not Instead, substitute for the proofs. exclusion all reading liberal modern rule and its defined exceptions satisfy and exclusions would better credibility critics preserving while and promoting the idealism behind the admin process."). istrative law *33 908.03(6m), §
larly business,90 or Wis. Stat. conducted provider did not Dr. Lemon care records.91 as health provide he claimant to ren- care; examined the health dispute purposes opinion of this about der an coverage. reports excep- admissibility as these 87. The hearsay Before a is not clear-cut. rule
tions to 908.03(6), § a under Wis. Stat. record is admissible testify. qualified No such or must custodian witness testimony presented here. Before a record is admis- was 908.03(6m), qualified a witness sible under Wis. Stat. offering party testify health care need not but give provider or notice to the other must serve records party. re- Moreover, the admission of the doctors' hearsay exception
ports automatic; is not to as discretionary "Amedical record is a decision. admission containing diagnosis opinion . . . be excluded or requires entry judge's if the in the trial discretion judgmental explanation of the or a detailed statement opinion diagnosis upon is based."92 factors which especially play into comes This discretion exercise of anticipa- prepared in been that have with documents litigation.93 show that The record does not tion of exceptions anyone reports the hear- admitted the 90 Blinka, Wisconsin D. Wisconsin Practice: Daniel 7 See 2001). (2d ed. Evidence 620-29 91Blinka, 90, 630-33. supra note at 92 Co., 633, 2dWis. v. Mut. Omaha Ins. 57 Noland Siverhus, 2d (1973); Pophal 168 Wis. 641-42, v. 205 N.W.2d (Ct 1992). Blinka, supra See also 533, 560, App. N.W.2d 90, note at
93Blinka, 627-28. supra note say any concluding rule or exercised discretion in hearsay reports exceptions should admitted as hearsay previously rule. We have addressed the reliability reports. deciding any parts
¶ 89. Without whether all or present the written medical in the case are hearsay exception, admissible under we conclude that appeals' reasoning hearsay the court of evidence is only unreliable when it does fall within a exception admissibility confuses the with the *34 probative hearsay issue of the force to be accorded the agency an administrative decision-maker. Hearsay subject exception hearsay, that is an to is still applies the therefore substantial evidence rule even exception hearsay to evidence admitted an as to the rule. hearsay 90. however, The dilemma, is that if is exception hearsay
admissible in court as an to the rule judicial proceeding may and a fact-finder in a base its hearsay, why apply decision admissible then what appears barring abe more restrictive rule an admin- agency basing istrative from its decision on uncorrobo- hearsay hearsay exception? rated that falls within primary hearings The reason is that in administrative represented by the are claimants often not counsel and attorneys. Requiring decision-makers are often not hearsay decision-makers to determine whether evi- hearsay exception dence falls within a defeats the admissibility reasons for relaxed standards for the of agencies. protection evidence in The parties requirement hearsay the lies in the that evi- agency rely dence if must be corroborated an is to on it as the sole evidence. Group in effect Board is Insurance
arguing legal not needed rule is that the residuum present reports are reliable because medical case reports generally though Even medical evidence. of record raises reliable, our review the viewed as reliability questions significant con- of these about the of the need for clarification and about troverted testimony. reports by Therefore, without cor- live satisfy require- they alone would roboration proba- evidence standard ments of the substantial tive, reliable evidence. appeals that Third, of concluded the court hearsay report contains more than one written
when hearsay report essentially is information, each the same permitted agency If the the other. corroborated hearsay bootstrap with other uncor- uncorroborated hearsay, the evisceration would be roborated result there, requirement be corroboration hearsay hearsay form evidence to in order for the Requiring findings agency's corrobo- fact. basis hearsay by non-hearsay evidence ensures ration of thereby ensuring properly tested, evidence is proceedings. We fairness of administrative fundamental present in the case conclude that therefore corroborate evidence. evidence cannot *35 interpretation re- of the corroboration 93. The present compared quirement should with in the case be requirement interpretation of the corroboration circumstances. other (Rule) § example, 908.045, a For Wis. Stat. (rather gov- governing than of evidence
rule admission evidence) erning probative re- force admitted hearsay quires evidence. Sec- certain corroboration tending expose provides: to "A statement tion 908.045 153 liability the declarant to criminal and offered to excul- pate the accused not is admissible unless corroborated." supreme interpreted
¶ 95. The court corrobora- § presentation tion in Wis. Stat. to 908.045 mean the permit person other evidence "sufficient to a reasonable light conclude, to of all the circumstances, facts and ,"94 the statements . could true . . The court multiple hearsay then allowed statements that were against penal the declarant's interest and were offered exculpate to the accused to corroborate each other when the statements were identical in nature and had multiple parties.95 been made to interpreted Thus, third the court multiple against penal statements corroborating interest as each other. interpreting
¶ 96. The cases the corroboration (Rule) requirement in Wis. Stat. 908.045 are based on legal system's special wrongful concerns about right convictions and a defendant's constitutional present a defense: "The critical need for evi- particular against penal dence, in statements interests, especially apparent in criminal trials where the [against penal exclusion a statement the declarant's interest] exculpating an accused could result in an erroneous conviction."96
¶ 97. These constitutional considerations about
right
present
appli-
an accused's
a defense are not
containing
cable in the instant case. Several records
94
Anderson,
State v.
653, 662,
141 Wis. 2d
416
276
N.W.2d
(1987).
95
Guerard,
See
v.
State
5,
250,
2004 WI
273 Wis.
2d
Anderson,
12;
682 N.W.2d
cases. produce a examined the claimant doctor who Funds hardly present the same or her records can be said McCollum, 463, 473-74, 476, 2d State v. Wis. (1997). N.W.2d 707 98Id. at 477.
99Id. at 478. *37 requiring independent burden as corroboration of the falsity original an of statement recantation cases. present governed by
¶ 101. The is case thus not requirements the corroboration set forth in cases in- volving against penal recantation or statement inter- est.
VI Group ¶ 102. The Insurance Board raises two arguments support of the decision of of the court appeals. argues adopts it if First, this court the position, may claimant's claimants who not be able to expert reports afford to witnesses corroborate medical placed disadvantage are proceedings at a serious present such as this one. Yet in case, it was the Group Board, Insurance claimant, not the that intro- hearsay duced the evidence. recognize importance
¶ allowing 103. We present position simply claimants to their as and inex- pensively possible, including by as means of written having present medical without the testi- mony reports. of the author of the This decision should require by non-hearsay not be read to corroboration evidence in all instances. hearsay always 104. Corroboration of is not
required proceedings. example, in administrative For parties may stipulate to some or all of the facts or upon submission and reliance the contents of hearsay reports. parties may agree written also agency may findings solely that the base its of fact on hearsay. pointed uncorroborated As the circuit court present legal out in the case, residuum rule does not parties prevent stipulating findings. from to factual Requiring of controverted corroboration Group hearsay upon Insurance which the findings fact not as burdensome its Board bases Apparently suggests. Group nu- Board Insurance agencies conduct their business merous findings adhering fact cannot to the rule that solely For evidence. uncorroborated based Industry example, Review Commission the Labor and routinely to the rule that uncorrobo- cites and adheres basis for resolution not form sole rated of an issue.100 argues Group Insurance Board Second, *38 object attorney to failed to the claimant and her hearsay admission and use of the uncorroborated
the challenge right reports to the the and therefore waived reports on offered, or on the when Board's reliance appeal. admitted, were the medical 107. When ground objection admissibility on the
the to claimant's Arguably the claim- have been futile. would object Findings opportunity of Fact to the ant had an to being evidence when based on uncorroborated Findings Proposed of Law of Fact and Conclusions Inc., Controls, No. Merta v. Johnson ERD Case 2003) (LIRC (crucial may finding of fact Oct. CR200000928 relying solely hearsay evidence on uncorroborated not be based Falls, T-N-T 579)); 2d Village Menomonee 140 Wis. on Express Delivery, UI Dec. Hearing No. Express LLC v. TNT (LIRC § 22,2000) (citing Wis. Admin. Code DWD Feb. S9700385 exceptions, testi subject some uncorroborated 140.16 that to issue); to decide an mony upon not a basis which sufficient Hearing Logan Flooring, UI Dec. Loberger v. Alex Wholesale (same). (LIRC 30,1999) These decisions June No. S9800050MD http://www.dwd format at online in searchable are available .state.wi.us/lirc.
were released. The circuit court ruled that the claimant not claimant object was and that the required there- fore did objections.101 not waive her "[W]hether [this court] should review an issue here raised for the first time depends upon facts and circumstances disclosed the particular record. The question administration, is one of power."102 The general rule is that an appellate court will not "consider issues beyond those properly raised before and a failure to agency, raise an issue generally constitutes a waiver of the right raise the issue before reviewing court."103 As with rules, most however, there are exceptions.104 101The circuit court relied Wis. Admin. Code ETF 11.09(3), provides which as follows: (3) Any party aggrieved proposed OBJECTIONS. decision objection proposed file days a written to the decision within 20 proposed aggrieved of the date of the notice decision. party specify, detail, following: shall
(a)
provision
proposed
Each
party
decision to which the
objects
objection.
and the basis for each
(b)
change
party requests
Each
the board to make in the
proposed
legal grounds
change.
decision and the
for the
If
minor,
requested change may
specific
be described
aas
edit
proposed
major
to the
changes
decision. If
extensive
are
*39
requested,
party may
proposed decision,
the
attach a draft
clearly
party's draft,
party's objections
marked as that
to that
added).
(emphasis
102
Creek,
rel.
City
State ex
Gen. Motors
v.
Corp.
Oak
49
of
(1971).
299, 319,
Wis. 2d
158 claimant whether the need not decide 109. We challenge present right case her in the waived Findings We address the issue of Fact. of the bases oppor- parties presented have had because the here tunity issue and be- evidence to brief substantial legal application rule announced of the cause the presents importance. Folding an issue of Furniture ap- Additionally, unpublished of of the court decisions Folding applicability peals different views take and Perales.105 Furniture stated, we conclude 110. For the reasons written medical
the uncorroborated
testimony
by in-person
controverted
alone that were
support
constitute substantial
did not
Group
Findings
decision
of Fact and
Insurance Board's
correctly
benefits. As
the claimant's
to terminate
present case,
pointed
circuit court in the
out
testimony is uncorrobo-
of the medical
most
because
Group Insurance Board's
evidence, the
rated
the claimant was
#17 and #18 that
of Law
Conclusions
"totally
contract are without
within the
disabled"
Accordingly,
support.106
we reverse
decision
Creek,
299,
2d
Corp. City Oak
Wis.
rel. Gen. Motors
v.
ex
LIRC,
(1971);
WI App
v.
319-20, 182
Bunker
N.W.2d
255,
216,
15-16, 257
2d
By appeals the Court.—The decision of the court of is reversed. (concurring). BUTLER, 111. LOUIS B. JR., J. I
join the decision and mandate in I this matter. write separately by my to address the concerns raised col- leagues, Justice Wilcox and Prosser, Justice about the impact that this decision will have on administrative hearings unrepresented claimants in those hearings.
¶ 112. Justice Wilcox writes that the residuum parties, particularly rule makes it more difficult for plaintiffs, prove their case before an administrative body. dissenting, Wilcox,J., ¶ 145. He is concerned that many expert claimants will not able to afford wit- nesses, id, and that a result, the residuum rule is inherently unrepresented unfair Id., claimants. similarly ¶ 149. Justice Prosser writes that our deci- financially struggling pay sion will force claimants to pertinent appellant's tract to the documented facts to the ICI determining appellant claim. In that the was not disabled within meaning contract, reasonably- UWG and the DETF accepted opinions appellant's treating physician and of expert physical therapist, UWG's over that of the who did not have definition, the benefit of contractual and of non- contemporaneous opinion by appellant's expert. The Board con- appellant cludes that require- was not disabled within the 30, April ments of the ICI contract after Conclusion of Law #18: Findings In accordance with the above of Fact and Conclusions of Law, July 9, the Board concludes that the DETF did err its 1998, appellant's determination [income to terminate the continu- April 30, beyond insurance]
ation benefits under Section - 1,1995, January 5.14 4.b. the contract effective between UWG and the Board. *41 testimony. expert ¶ also 196. He is Id. the bills unrepresented Id., claimant. about concerned ¶ 198. legitimate believe, I concerns.
¶ are 113. These disagree I are overstated. however, these concerns that future, that conclusion Justice Prosser's with hearings "participants re- will be in administrative testimony in-person provide quired to corrobo- live, to dissenting, hearsay J., Prosser, evidence". rate rehable points Roggensack's out, ¶ dissent As Justice 201. ways. in a number of can introduced corroboration testify can as a medical condition who have Claimants called well. can be to condition. Other witnesses provide the corroboration would Testimonial evidence hearing necessary examiner to consider allow hearsay concerning Cor- condition. medical hearsay come from does not have to roboration experts, hearsay be corroborated constitute must but lacking precisely is what That is evidence." "substantial in this case. agree Roggensack that the Justice I with to see of the evidence can look at the remainder
court hear- that would allow a exists whether corroboration reports. ing hearsay I medical examiner to consider disagree such corroboration her conclusion that with reports, medical in this case. Absent exists simply in the record that would evidence there no not disabled that Gehin was corroborate conclusion meaning of contract. within respectfully foregoing reasons, I For the concur. {dissenting). I not do J. WILCOX, 116. JON E disagree
join
majority opinion
that the
I
because
majority's
applicable
to this case.
residuum rule is
application of the residuum rule is erroneous for several
holding
First,
reasons.
under the clear
of Richardson v.
(1971),
Perales,
¶ 117. The before the court is whether uncorroborated in the form of medical testimony that are contradicted live at an hearing can ever constitute substantial agency's supporting findings. evidence factual n substantial evidence rule is set forth in Wis. Stat. 227.57(6) (2001-02),1 prescribes which the standard reviewing agency to be used when decisions: "The agency court shall ... aside set action or remand the agency agency's case to if it finds that the action depends upon any finding supported of fact that by substantial evidence."
¶ 118. Our case law has defined substantial evi- dence as "such relevant as a evidence reasonable mind accept adequate support would as a conclusion." Sea Club, View DOR, Estates Beach Inc. v. 223 Wis. 2d 138, 1All to the references Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
162 (Ct. 1998) (citing Sterling App. 148, 588 N.W.2d DNR, 710, 727, 2d Ass'n, 205 Wis. Inc. v. worth Condo. 1996)).2 (Ct. App. definition This 556 N.W.2d employed in that is consistent with substantial evidence "is 'more than a mere "Substantial evidence" Perales: as a reason It means such relevant evidence scintilla. support might accept adequate mind able (quoting Perales, at 401 Consol. 402 U.S. conclusion.'" (1938)).3 NLRB, It is 197, 305 U.S. Edison Co. v. noteworthy the definition substantial relevancy and how the evidence focuses might probative its value. reasonable mind view unnecessarily majority adds to this 119. The legal applying set definition, residuum rule was Folding Works, v. Furniture Inc. court forth this Bd., 188-89, 170, Labor 232 Wis. Relations Wisconsin (1939). op., Majority ¶¶ 53-54, 81. As 285 N.W majority correctly Folding id., ¶ 54, court in
notes, legal adopted Furniture, residuum 232 Wis. provides can- that uncorroborated rule, which evidence, from the United substantial not constitute Supreme in Consolidated Edi- decision States Court's son, at 235. 305 U.S. Supreme However, the United States interpretation subsequently repudiated this
Court
concluding:
Perales,
Edison in
Consolidated
*43
drawing [in Consoli-
Justice was
The contrast the Chief
cited,
Edison],
very
not with
page
was
dated
at the
formally
inadmissible
would be deemed
material that
2
223,
DNR,
App
v.
2001 WI
P'ship
also ABKA Ltd.
See
(accord).
18,
793,
judicial proceedings but
a
with material "without
basis
having
probative
rational
force." This was
rejection
not a
blanket
the Court
hearsay
irrespective
reliability
proba-
reliance
tive
opposite
value. The
was
case.
added).
(emphasis
Perales,
cians' written
of medical examinations
disability
have made
a claimant
constitute
supportive
finding
'substantial evidence'
of a
of nondis-
ability
objects
. . . when the claimant
to the admissibil-
ity
only
testimony
of those
and when the
live
presented by
contrary
reports."
his side and is
to added).
(emphasis
Perales,
U.S. at 396 did merely re- the medical reviewed witness, this witness testifying ports contents, their at and summarized issue reports medical was of the various that "the consensus syndrome of musculo- had a mild low-back that Perales nothing ligamentous origin." in the Perales There is majority suggest, opinion does, that the to as opin- separate independent advisor rendered medical reports. agreeing of the medical with the substance ion contrary, referred the Court twice Quite the being standing reports contra- alone and medical testimony. by Indeed, at live Id. dicted precise holding was as follows: of Perales has who physician a licensed report written [A] his report forth in the claimant and who sets examined competence may findings areas medical in his his and, disability hearing despite in a received as evidence of cross- and an absence character its examination, presence opposing despite the and testimony by claimant testimony and medical direct supportive himself, may substantial evidence constitute to the finding hearing examiner adverse right claimant, has not exercised his when the claimant thereby pro- subpoena reporting physician cross- himself opportunity with vide physician. examination Id. at 402. majority's contrary ar- to the addition,
gument, the fact that Perales focused on the rationale oí probative reports reliable issue were the medical routinely they that were were standard because *45 proceedings physi- utilized in administrative and the reports personally cians who authored the had exam- express ined the claimant. Id. at Therefore, 402-06. language of Perales and its rationale refute the majority's attempts sidestep importance to of that decision. being peculiar than Rather a decision security recognized social context, Perales has been leading dealing other courts as "the recent case with question 'substantial evidence' in administrative of
decisionmaking[.]" Unemployment Comp. Bd. Review
of
(Pa. 1981)
added).4
Ceja,
(emphasis
631,
v.
427 A.2d
639
applied
Numerous other courts have
the Perales hold-
ing beyond
security hearings
the context of social
proceedings.
e.g.,
assortment of
See,
(decision
Leitman,
Logis-
48,
reports physicians of licensed ings, despite the character opportunity absence cross-examination.... support an hearsay evidence alone therefore Such agency determination. omitted). (citations Helicopter, F.2d at 1344
Bell interpreted, represents properly a land- Thus, Perales *46 as to the standards what decision that altered mark pro- in administrative evidence constitutes substantial ceedings: adjudicative official at an that an undisputed
It is hearsay. hearing consider It is also can as a hearsay alone not sufficient clear that Supreme The Court has for a substantial basis decision. hearsay for con- rejected not been explained that has only hearings, hearsay but at administrative sideration having probative rational a in evidence without basis value. omitted). (citations
Leitman, F.2d at 51 significance of Perales lies Therefore, the Security anything unique Adminis- to the Social recognition "it is not the in its that tration, rather but proffered hearsay per evidence that nature se reliability significant, probative value, and its it is Calhoun, are determinative." of its use that fairness rigid "rejected rule words, other Perales F.2d 148. In hearsay proffered evidence could held that and doing so, the Court evidence. In substantial constitute explained rejection that there could be no blanket hearsay irrespec- administrative reliance reliability probative tive of value." Id. at 149. In appropriately recognized essence, Perales that reason- rely hearsay able fact-finders could on uncorroborated sufficiently probative making that is reliable and when findings. factual contrary majority's such, 128. As to the asser- majority op., ¶ simply
tion,
64, Perales did more than
legitimacy
cast doubt on the
of the residuum rule.
applying
light
Courts
the substantial evidence rule in
recognized
"[a]
Perales have
residuum of corrobo-
rating
type
jury
evidence of the
in a
admissible
trial is
longer required."
Helicopter,
no
Bell
746 F.2dat 1344. In
"[the residuum]
longer
Perales,
oí
aftermath
rule no
rejected
per
approach
controls.
We have
se
solely
brands evidence as insubstantial
because it bears
Johnson,
label."
168 227.45(1), governing § ad- Stat. 130. Wisconsin procedure, provides: ministrative 19.52(3) 901.05, agency an in ss. and Except provided law not be common shall bound hearing or examiner hearing evidence. The agency statutory or rules of having testimony reasonable shall admit all examiner immaterial, irrel- value, shall exclude probative but testimony or evidence unduly repetitious evant or principles s. 901.05.... Basic is admissible under govern shall relevancy, materiality probative and force questions all proof of fact. added). (Emphasis provides Importantly, an the statute
agency of evidence bound formal rules shall not be prin- governed by proof basic of facts is and that ciples relevancy probative This statute force. legislative represents the rules determination relax proceedings. Wal-Mart of evidence administrative App LIRC, 272, ¶ n.8, 240 Stores, Inc. v. 2000 WI Pieper Elec., LIRC, 633; Inc. v. 209, 621 N.W.2d Wis. 2d (Ct. 1984). App. 92, 97, 2d 118 Wis. N.W.2d 11.06(1) (Jan., 2004), § ETF addition, Wis. Admin. Code evidentiary rules to be used which sets forth privilege hearings, provides: "Rules of recognized by given However, com- shall effect. law apply. statutory The do not rules of evidence mon law or testimony having hearing admit all examiner shall hearing probative examiner shall value. reasonable immaterial, or un- irrelevant, from the record exclude Contrary duly testimony." repetitious to the residuum 227.45(1) § with Stat. rule, is consistent Wis. Perales 11.06(1) recog- it ETF because Admin. Code and Wis. probative hear- uncorroborated nizes that reliable supporting say may substantial evidence constitute finding. agency's factual *48 incongruent
¶ 132. The residuum rule is with 227.45(1) § by prohibiting First, for several reasons. an agency considering hearsay, from uncorroborated agency residuum rule forces an to follow formal of rules agency operating evidence. An administrative under 1) the residuum rule make must two determinations: 2) whether the evidence is and whether the inquiries evidence is corroborated. first of these is very problematic light statutory framework. "Hearsay" defined is the rules of evidence as "a statement, other than one made the declarant while testifying hearing, at the trial or offered in evidence to prove the truth of matter asserted." Wis. Stat. 908.01(3). § operating
¶ 133. Thus, outset, at the when under necessary rule, the residuum it is to turn to the rules particular piece evidence to determine whether hearsay. ’hearsay’only evidence constitutes "Evidence is if all elements of the definition are satisfied." 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence (2d 2001) added). § (emphasis 801.1, at 521 ed. is, That statutory to constitute definition, under the 1) 2) there must a declarant; be: who a state- offers 3) 4) ment; court; that is made out offered piece the truth of the matter If asserted. of any hearsay. fails element, Id., to meet one then it is not § Specifically, ”[o]ut 801.1, at 522. of court statements prove proposi- be offered to innumerable relevant apart (explicitly) from tions truth the matter § recognition Id., 801.3, asserted." at 536. This is ex- tremely important ”[i]f being because the statement is prove anything offered to other than the truth of the 'hearsay.'" asserted, matter Id., 801.3, it is not at 534. having ¶ 134. In addition to to consider this tech- hearsay, agency operating nical definition of under have contend with fact rule will the residuum *49 908.01(4) § categorical forth sets two that Wis. Stat. 908.01(4) hearsay exemptions rule. Section from the prior provides of and admis- that statements witnesses hearsay. by party opponents of are not Each these sions exemptions, in technical elements turn, has numerous agency operating Therefore, an that must be satisfied.6 necessarily violate both under the residuum rule must 227.45(1) § language spirit express of of and the pro- evidentiary in administrative relaxed standards evidentiary ceedings must make technical because it an item of determinations in order to decide whether hearsay. evidence is Furthermore, residuum rule is incon- 227.45(1) provides part that of which that
sistent with relevancy, materiality proba- "[b]asic principles and of govern proof questions of of all fact" tive force shall into uncor- it fails to take account that some because probative. hearsay re- relevant and The roborated is evaluating represents case of form siduum rule a classic fallaciously The residuum rule assumes over substance. indicate that published administrative decisions Several agencies routinely grapple must with these evidentiary proceedings statute technical distinctions See, evidentiary subject are to relaxed standards. supposedly Sch., 7, Pub. e.g., Wicke v. Merrill Area (May No. 2002-014249 2004) (available http://www.dwd.state.wi.us/lirc/wcdecsns/ at 812.htm) (applying opponent prior and inconsistent state party Dist., Sch. Hunter v. Racine hearsay ment exemptions); Unified (Oct. 2001) (available 3, http://www.dwd at No. 01605072RC .state.wi.us/lirc/ucdecsns/1204.htm) hearsay (applying defini v. Albrecht rule); exception hearsay tion and records business (Oct. 1998) Style Staffing Appleton, No. 98401933AP Life of (available http://www.dwd.state.wi.us/lirc/ucdecsns/811.htm) at determining and whether evidence (applying definition rule). exception to fell within records issue business hearsay, including documentary evidence, that all all inherently applies categorical and unreliable bar hearsay, of consideration uncorroborated rather allowing case-by-case analysis than for a of the actual reliability probative pieces value individual recognize evidence. residuum rule fails to equal reliability corroboration does and that some hearsay may probative despite forms reliable their lack corroboration. problem sum, 136. In the inherent with the rule
residuum is as follows: distinguish [It] fails to between reliable and unreliable hearsay, hampering thus the administrative decision- *50 making process; it equally thoroughly while fails to protect process rights, due unobjected because hear- to say, no unreliable, corroborated, matter if how no evidence, slight legal may matter how provide the support substantial evidence needed to an administra- finding. tive Corroboration in and of itself is not dis- positive reliability. available, If issue corrobo- may ration in determining reliability, be a factor but corroboration or lack thereof neither ensures nor precludes is, reliability. therefore, The standard at the rigid same time too and too indefinite.
Ceja,
¶ 137. It is inconsistent with argue hearsay, all that uncorroborated no matter what probative categorically its relevance or value, is insuf- ficient allow a reasonable mind to a base factual upon "Any evidence, conclusion it. whether corrobo- capable not, rated if reliable, relevant and should be supporting Ceja, finding." a factual A.2d 643.7 7 Likewise, I Admin. § would conclude that Wis. ETF Code 2004) 11.12(2)(a)(Jan., is invalid it because with conflicts Wis. allows uncorrobo- decision 138. The Perales if it to constitute substantial rated underlying reliability indicia to "assure bears sufficient Perales, This at 402. 402 U.S. value." probative to the re- evidence, contrary substantial standard for prescription with the rule, comports siduum 227.45(1) materi- relevancy, that principles § "[b]asic 11.12(2) 227.45(1). forth the standards § Section ETF sets Stat. Regarding drafting final decisions. must utilize when agency an 11.12(2)(b) fact, pertinent provides, § ETF findings of hearsay." Gener- may upon be based finding of fact part: "No unambiguous rule that conflicts with ally, an administrative Cranes and Doves Citizens Concerned statute is invalid. Wis. 318, 612. "In DNR, 40, 14, 2d 677 N.W.2d 270 Wis. v. WI and an between statute in which a conflict arises those cases O'Connell, rule, v. prevails." Seider statute 72, 211, 612 236 Wis. 2d N.W.2d 2000 WI in two with the statute The administrative rule conflicts above, agency to resort First, requires it ways. as described item whether an in order to determine to the rules of evidence 227.45(1) §in contrary to the statement hearsay, of evidence is by the formal rules agency is not bound an administrative that reliance on all Second, prohibits face the rule on its of evidence. the rule hearsay. Because hearsay, simply uncorroborated hearsay, especially that for the fact some fails to account recognized or that falls within hearsay that is corroborated it inconsistent with probative, exception, be relevant 227.45(1) principles "[b]asic provides §of which part govern materiality and force shall relevancy, probative 227.45(1). of fact." Wis. Stat. questions of all proof *51 length, rule at majority fails to discuss this Notably, the face, than the residuum it is broader despite the fact that its findings based on factual prohibits rule rule. residuum 11.12(2)(b) goes step ETF one hearsay. Section uncorroborated may be based finding of fact "[n]o that requiring further hearsay." upon
ality probative govern proof force shall all questions proceedings. in fact" administrative majority argues
¶ 139. While the that without categorically probative, corroboration, is not majority op., recognizes ¶¶ 89-91, it also proceedings. is in Id., admissible represent ¶¶ 49-51, 86. These two conclusions a mis understanding requirements admissibility probative Wisconsin and the relation between value and § provides "[a]ll relevance. Wisconsin Stat. 904.02 relevant evidence is admissible .... Evidence which is relevant is not admissible." Wisconsin Stat. § 904.01, turn, defines "relevant evidence" as "evi having any tendency any dence to make the existence of consequence fact that is of to the determination of the probable probable action more or less than it would be without the evidence." "Relevance under the Wisconsin probative rules, then, conflates the value of the evi (the proposi link dence between the evidence and the proven) question tion to be and the whether the sub regards proposition stantive law this as one "of consequence[.]" 7 Daniel Blinka, D. Wisconsin Prac (2d 2001).8 § tice: 401.1, Wisconsin Evidence at 81 ed. "Only any probative where the evidence lacks value § should it Id., be excluded as 'irrelevant.1" 401.102, at "[T]he probative value of the evidence ... is a § § function of its Id., relevance under 904.01." 403.1, product 113. "Probative value, then, is the of relevance and an assessment of what the evidence adds Id., case." 403.1, at 114. 8Thus, if probative prove it "tends to disprove (7th 1999). point issue." Dictionary Black's Law ed. *52 proba- must have some such, As evidence 140. in the first instance. This is to be admitted
tive value
227.45(1),
recognized
provides
explicitly
which
agency
hearing
"[t]he
all
examiner shall admit
testi-
mony having
probative value . .. ." Once
reasonable
necessarily
properly admitted, it
contains
evidence is
entirely
probative
incorrect to
Thus,
value.
it is
some
category,
hearsay,
posit
a
lacks
as
that uncorroborated
any probative
properly admitted.
value once
simply
not mean that
However,
this does
probative
to be
has sufficient
value
because evidence
automatically
"substantial evi-
admitted, it
constitutes
("[H]earsay
Calhoun,
admit-
dence." See
hearsay intrinsically are unreliable is flawed because it subject hearsay fails to account for the fact that to a inherently recognized exception is reliable. While the majority "[hjearsay subject states that that is to an hearsay," majority exception op., ¶ 89, is still this point. hearsay exception Each observation misses the "represents under the rules of evidence a determination categorical reliability; hearsay falling is, of any within guarantees
one of the rules carries with it
of
reliability comparable
trustworthiness
testimony."
to in-court
Blinka,
Daniel
D.
Wisconsin Practice:
(2d
2001).
§
801.1,
Wisconsin Evidence
ed.
See
("Once
Ceja,
also
quires
probative
of
administrative consideration
value
reliability
comports
in the first instance
with..
.
Calhoun,
the limited review of administrative actions."
Regarding agency
findings,
statutory hearings, framework administrative probative, reliable, cation of the residuum rule documentary substantially to claim- unfair proceedings. re- Because ants requires in all siduum rule corroboration reliability regardless probative cases, value given piece evidence, effect of the residuum "the actually evidentiary to create an standard rule is Ceja, jury adhered stricter than that trials." *54 for contrast, the allows at 636. Perales decision A.2d development Calhoun, F.2d of the record." "the full 150. imposes ¶ an eviden- 145. As residuum rule the jury tiary does not trials, than in it standard stricter majority "protection parties[,]" op., ¶ for the afford contrary, proceedings. the Quite in administrative the par- parties, for rule it more difficult residuum makes ticularly prove an admin- claimants, to case before their many body. recognizes majority that The istrative unrepre- proceedings are claimants "legal rule is majority The that the residuum states on the the that act as a check by notion courts should supported for fundamental fairness." agencies by reviewing the decisions However, review the standard of Majority op., 59. under ¶ agency legislature, may review an prescribed the court only procedures the utilized for fairness relation to decision 227.57(4). § agency. by the Wis. Stat. Majority op., by subjecting Yet, sented. 51. these unrepresented requirements to the claimants majority operate rule, residuum forces to them hearsay exemp- under the intricacies of the rule and its majority recognizes many tions. The also that claimants expert cannot afford witnesses and to be need able to present position simply inexpensively their as and possible hearing. Majority op., ¶¶ aat 102-03. How- recognize ever, it fails to that the residuum rule cuts ways applies parties both proceedings. all in administrative implies majority ¶ 146. The that the residuum may applicable rule if harmful to a claimant stating "[c]orroboration always that is not required proceedings." Majority op., in administrative majority absolutely However, offers no au- thority inexplicable this conclusion, which flies in opinion. majority the face remainder parties stipulate agree theorizes that to the facts or agency may findings its base of fact on uncor- hearsay. why roborated Id. has to One wonder a defen- proceeding, usually dant in an administrative which greater possess ability will resources to call experts, stipulate would ever if facts the claimant testimony. produce unable to live majority's suggestion In addition, parties agree agency can somehow that an can base findings contrary agency's its runs to the prohibits purportedly agency rule, own which from basing findings upon hearsay. factual Wis. Stat. ETF *55 11.12(2)(b) 2004). (Jan., majority The has cited no case principle proposition of law for that stands the that parties agree agency can to have an violate its own rules rendering majority's in sum, In decisions. while the imply ¶¶ in comments 103-04 that the residuum rule operation apply to would be adverse when its does not reality case for this is that no stands claimants, the apply proposition rule will and that the residuum equally claimants and defendants. to all majority applies Furthermore, the the rule 148. beyond today for continua- well claims income extends artificially high imposes an and tion insurance benefits proceed- variety evidentiary in of administrative bar majority's ings. the the decision While result present case, the rule the in the to claimant beneficial majority adopts harm countless claimants will imposes an it eviden- other contexts because this and jury tiary add than that trials. To standard stricter injury, majority imposes a standard to insult re- stricter than that which is corroboration that quired is during ¶¶ Id., criminal trials. 92-101. truly majority If concerned with were recognize id., ¶ re- it
"fairness," 82, would understanding requires of the rule, siduum which inherently law, and of evidence nuances technicalities unrepresented contrast, claimants. unfair to parties decision, to submit all which allows Perales they the fact-finder consider relevant to the evidence requires fact-finder to consideration, then individually piece for reliabil- each of evidence evaluate prin- ity probative with value, is consistent both evidentiary ciples equity relaxed standards and the supposed govern are, statute, proceedings. Finally, majority's application ignores reports medical rule standard
residuum
majority
reality
proceedings. of administrative
reports prepared
implies
in connection
that medical
Majority op.,
potential
litigation are unreliable.
with
Perales,
¶¶
However, the
69-71, 86.
at issue
*56
prepared by experts
402-04,
402 U.S. at
were also
government
litiga-
retained
the
in connection with
determining
reports
tion.
that the medical
before it
Supreme
evidence,
constituted substantial
Court in
Perales examined
factors,
numerous
administrative pared by experts claimants, who have examined and probative reports that such are and reliable. The Per- "specially first, ales court noted, that the fact that the government phy- calls in and remunerates consultative independence sicians does not undermine the of those physicians' opinions or indicate in bias favor of the (9th [agency] Heckler, . . . ." Allen v. F.2d 1984). Cir. correctly recognized ¶ 152. Perales that documen- tary especially reports, routinely evidence, medical are proceedings. utilized in Indeed, the Wis- Legislature acknowledged importance consin has Compen- such evidence the context of the Workers' by providing sation Law that certified of medi- practitioners cal and institutions who have examined a patient prima constitute facie evidence as to the mat- 102.17(l)(d). reports. ters contained Wis. Stat. proceedings designed Administrative are to allow for and fair efficient resolution of claims without the judicial proceed- formalities intricate rules of a full testimony every By requiring ing live a court. before considering agencies preventing from case majority commonly parties, utilized purpose ignores reality ad- this and frustrates *57 hearings. ministrative respect- I reasons,
¶ aforementioned 153. For the fully dissent. that Justice
¶ I to state 154. am authorized joins opinion. PROSSER, this T. JR. DAVID {dissenting). Lu- PROSSER, T. J. 155. DAVID victory figure, sympathetic but her is a ann Gehin My heavy purpose in this a cost. this court comes at illuminate that cost. dissent parts. three is divided into dissent majority's take I decision to Wis- the Section laments law and of administrative out of the mainstream consin consequences predicts from that will flow of the some challenges majority’s II inter- the the decision. Section key piece pretation in the record. a of evidence of disturbing disregard majority's the Section III outlines procedures of the and standard of waiver issue the the Group Board. Insurance Wisconsin
I
Perales,
v.
Act "substantial evidence" constitute hearsay non-disability, notwithstanding finding the of reports, of cross- the absence character (through to exercise claimant's failure examination subpoena testimony directly rights), opposing and the claimant and claimant's medical witness. This landmark decision validated reliance on some uncor- proceed- roborated evidence in administrative ings by taking proceed- into account nature of ings, reliability probative "the worth written reports," oppor- medical and the claimant's unutilized tunity seriously for cross-examination. The decision validity scope legal undercut so-called "residuum rule." majority opinion repre-
¶ 158. The in this case holding a frontal sents assault on the in Perales. The opinion precepts adheres to residuum rule despite growing body contrary decisions and the scholarship advocating modern trend in the rule's abo- lition. provides,
¶ 159. The residuum in essence, rule that "uncorroborated alone does not constitute *58 [in proceedings]." substantial evidence administrative Majority op., ¶ words, other there must be some non-hearsay upon "residuum" of agency evidence which an findings. its factual bases many rule, 160. The better as courts and schol- recognize, hearsay may ars is now that evidence consti- proceedings tute substantial evidence in guarantees if the evidence bears inherent of reliability and trustworthiness. Wigmore's
¶ 161. treatise on evidence asserts decidedly that: "The residuum rule ... is not the wise satisfactory adoption." general Wig- rule for John (Tillers Wigmore more, on Evidence at 122 4b rev. 1983) (hereinafter Wigmore). majority The admits that the residuum rule "has been criticized commenta- "ignores reliability tors" because it of evidence incompetent Majority op., under the rule." criticisms is manifest. behind these The wisdom summarizes: treatise Wigmore As the from liberal rule seems the residuum Plausible as ... residuum view, acceptable. [T]he it is not point of "re- fallac[y] ... this logically [a] on rule rests evidence," indispensable, which is be legal siduum necessary truth of relation have will some necessary have no such finding. "legal" rules But mass, a reliable they do tend to secure In the relation. individually, it is evidence; but, taking rule each body of more pieces assume that one or obviously fallacious to guarantee of "legal" per are se a sufficient evidence truth. at 120-21.
Wigmore, supra, poten- consider two point, 162. To illustrate this the medical First, consider of evidence. tial pieces case, Dr. in this Whiffen and Lemon by Dr. reports treating physi- Gehin's that Dr. Whiffen was recalling from someone testimony oral Second, consider cian. "totally the claimant spouse like a claimant's that because concludes majority opinion disabled." may it serve substantial "legal," evidence is the latter techni- are evidence, the medical but because As Does this make sense? they not. cally may "hearsay," out, Wigmore's points treatise false; or true, truth or both may be [B]oth But in each case. falsity on the circumstances depends type on the one falsity depend does truth .... "legal" being "illegal" being and the other legal rests evidence" the rule for "residuum Yet *59 always "legal" evidence is assumption "illegal" never but the evidence is and sufficient credible credible sufficient. at 122.
Wigmore, supra,
183 In 1971 the Court Supreme decided that the residuum rule does not apply social security in disability which the proceedings agency relies on medical records. The Court said:
We conclude that a report by written physi- licensed cian who has examined the claimant and who sets forth report findings his his medical in his of compe- area tence disability received as evidence in a hear- ing and, despite its character and an absence of cross-examination, despite the presence and of oppos- ing testimony testimony direct medical and by the himself, claimant may constitute substantial evidence supportive finding by hearing examiner adverse claimant, to the when the claimant not has exercised his right subpoena reporting physician thereby provide opportunity himself with the for cross- examination physician.
Perales, added). 402 U.S. 402 (emphasis 164. As courts fell into line behind the Perales approach,1 Wigmore's treatise noted: "The residuum 1See, e.g., Compton v.D.C. Psychology, 470, Bd. 858 A.2d (D.C. 2004) (hearsay 476 alone can be substantial evidence if reliable); Branch, Cole v. Driver and Motor Vehicle Servs. (Or. 2004) 1120, F.3d (Oregon "expressly rejected" has rule, "hearsay alone, residuum even if inadmis trial, sible a civil or criminal incapable being evidence'"); 'substantial Mgmt. 49th Street Co. v. N.Y.C.Taxi & Comm'n, 2000) 391, Limousine 716 N.Y.S.2d 394 (App. Div. (Hearsay "may constitute substantial evidence where it is sufficiently probative."). relevant and appeals, although Florida court of noting that "in Florida, statutory," the residuum rule is admitted that the rule rejected "has now jurisdictions been most and most scholars highly are critical of it." Advertising Corp. BellSouth & Pub. v. (Fla. Comm'n, Unemployment Appeals 654 So. 2d Dist. 1995). Ct. App. *60 supra, Wigmore, generally has been abandoned." rule College predicted even that Judicial 122. The National "any favoring jurisdictions rule, residuum the still Judge Law finds to an Administrative that evidence exception trustworthy meet the and reliable should satisfy legal hearsay residuum and thus rule jurisdictions apply rule." Melvin that in those rule Goldberg's Goldberg, Admin- Evidence Deskbook on (1993) coop- (published Judges, Law IV-16 istrative College).2 The ma- Judicial with the National eration prediction. jority bludgeons opinion this Wigmore's ¶ notes that the treatise further 165. by replaced the "substantial rule has been residuum Wigmore, supra, at 122-23. standard. evidence" statutory. test is Wisconsin, the evidence" "substantial 227.57(6) ("The § shall, however, set court Stat. Wis. agency agency if to the or remand the case action aside any finding agency's depends on that the action it finds supported evidence fact substantial that is record."). "rea- evaluate whether courts Wisconsin at the same conclusion minds could arrive sonable agency." DWD, 252 54, 5, WI Wis. Kitten v. 2002 "Many all and almost courts 561, 2d N.W2d 'incompetent' agree other scholars Wig- evidence.'" constitute 'substantial evidence supra, more, at 123-24. against Despite the re- modern trend "[s]ome Wigmore's admits that treatise rule,
siduum original pur- effectively ... have subverted courts holding pose standard of the substantial approach: appeals' the court of parallels This standard any may rely evidence admissible hearing examiner that the 908.03(6m). as Wis. Stat. hearsay exception, under a such Bd., 03-0226, op., unpublished slip Group Ins. No. Gehin v. 2003). (Wis. Oct. App. Ct. evidence in and of itself cannot constitute Wigmore, supra, 'substantial evidence.'" at 124-25. approach by Wigmore's ¶ 167. The advocated approved by Supreme treatise and Court in Perales *61 hardly apposite could be more fact, to this case. the exactly Perales Court resolved the same issue we face today namely, reports by whether written medical — physicians may licensed constitute substantial evidence proceedings. Supreme in administrative The Court held reports that medical do constitute substantial evidence. majority Today they holds that do not. I would Perales, follow not because so, we are bound to do but reasoning Supreme behind because the Court's coupled authority decision, with the modern trend of scholarship, and convinces me that we should do so.
¶ The 168. Perales Court cited nine factors it reliability believed established the inherent of the medi- present cal records in that ifMost, all, case. are this case as well. First, 169. the Court noted that each report by prepared practicing physician
medical was who had Perales, examined the claimant. 402 U.S. at any 402. Court refused to "ascribe bias" to of these present doctors. Id. at 403. In the case, the medical reports by is, relied on the Board—that the Whiffen and reports prepared by Lemon medical doctors who —were disability examined Gehin at the time determina- reports prepared by phy- tion. Some were Gehin's own (Whiffen). By sician Dr. contrast, Shannon's examina- years tion of the claimant came two after Ironically, determination at issue. the relevance of Dr. testimony, Shannon's which was contested at the hear- ing, depended large part upon "hearsay" the written court to reports no reason for this There is of others. reports relied on medical to the ascribe bias Board. impar- cited the court Second, the Perales evaluating agency
tiality of the nothing Similarly, case, there is at 403. this claim. Id. to believe that cause this court record to in the (the Board), Group which Board Insurance Wisconsin hearing hearing and employed conduct a examiner to evidence, was biased. review process Third, hailed the Court generated. reports are medical
which reports and the routine of familiar with medical One rec- examination, general specific, will the medical value. The ognize elements of detail their [the who examined physicians particular personal consultation claimant] based were *62 accepted medical and rested personal examination procedures and tests. majority suggested present case, has not In
Id. today reports less is of medical the character Supreme Court at the time the than it was reliable present Accordingly, is that factor also Perales. decided here. range
¶ of exami- Fourth, the Court cited 172. at Id. 404. which the claimant submitted. nations to relatively similar, examinations were case, Gehin's this designed was whether Gehin to determine each with meaning policy. "totally the ICI within the disabled" justification Concededly, not is fourth Perales present in this case. consistency
¶ noted the Fifth, Court 173. reports. among case, the Id. In this medical all the hearsay lengths majority goes to show that to some by hearsay, majority op., cannot corroborated other rejecting consistency ¶¶ 92-101, thus between inde- pendent showing medical as evidence the reli- ability reports. of such This conclusion is hard to defend.
¶ 174. Sixth, the Court noted that the claimant
opportunity
had
to cross-examine the doctors
requesting subpoenas
them,
but did
do
so.
Perales,
oppor-
formal trials before courts, medical records despite are admitted and considered their char- exception acter, as an to the rule. at Id. 405. same true in Wisconsin. See Wis. Stat. §908.03(6m). Eighth, prior the Court noted that deci- recognized "reliability probative
sions have
reports.
value"
Perales,
medical
188 recognized the sheer Ninth, the Court process, magnitude and reasoned administrative of the testimony by requiring "be doctors would live energy financially and on the drain" both substantial apply here as well. physicians. reasons Id. at 406. Both Perales the wake 178. Commentators change approved from a in focus the Court's decision hearsay per evidence substantial cannot be se rule hearsay reliability evi- to an evaluation reliability of the direct at the "Such a look dence. per rule that than se makes far more sense Supreme The evidence." cannot be substantial (1971-72) Term, Rev. Court, Harv. L. 328 85 §§ (citing Law, 14.10, 14.11 Davis, Administrative K. 1940)). 4(b)(3d § (1958); Wigmore, ed. I Evidence J. pro- developed Hearsay originally ¶ 179. rules laypersons jury preclude context tections in the trial arguably placing unreliable much evidence from hearsay too Preliminary Thayer, (citing Id. at 329 evidence. 180, 181 Law at the Common Treatise on Evidence (3d 1940)). 4(b) (1896); Wigmore, ed. I J. Evidence hearings. present in That concern is hearing jury supplanted "[W]here a trained expertise board, often with or administrative examiner3 evaluating the use of evidence, rationale for disappears." Id. standards years ago. Perales 33 The Court decided reasoning. many on its courts have relied then, Since Today only, few, not the if becomes one of this court all func "perform required examiner is hearing disqualify An examiner shall manner. impartial in an tions or if... he appeal to a respect particular himself or herself with Wis. Admin. Code fairly impartially." act unable to she is 11.04(3). § ETF *64 disagree substantively court to with the rationale and rule of law announced in Perales. majority provides several reasons for
distinguishing majority op., Perales, ¶ 66, none of majority which withstands close First, examination. the distinguishes scope on Perales based the vast of the (SSA). Security Majority op., Social Administration majority ¶ 66. The a cites 1992 law review article which
stated that the SSA considers more than one million
disability applications year. Majority op., ¶
66. How-
figure
applications"
ever, this
of "one million...
is
irrelevant. The relevant consideration
number of
involving
hearing.
cases
a contested
theAt
time of the
Supreme
only
decision,
Court's
the SSA conducted
hearings annually
20,000 claim
number one-fiftieth
—a
majority
justification.
the size of the amount the
uses as
Perales,
The matter comes down question to the procedure's integrity and fundamental fairness. We see nothing derogation that works in integrity of that and of that fairness in the [medi- admission of consultants' subject they cal] reports, being are to material and to subpoena use consequent cross- examination.
Id. at 410. ultimately persuaded by 183. The Court was
"underlying reliability probative value" of the medi- reports, scope cal the sheer of the SSA. This make it were to sense, only goal makes because if of claims number quickly, immense easy process to the decision- give would be approach the practical of claims quickly. autonomy dispose maker broad rule based Instead, wisely promulgated Court *65 value of the reliability probative underlying medical reports. Perales Second, majority distinguishes 184.
¶ (at in before the SSA issue hearings in claim because coun- Perales), represented claimants are "most in the Later op., opinion, 66. Majority sel." ¶ an excellent majority question: poses exception hearsay admissible court as [I]f judicial proceeding in a hearsay rule and a fact-finder hearsay, why then on admissible base its decision barring rule to be a more restrictive apply appears what basing decision on agency from its an administrative within a hearsay that falls uncorroborated exception? 90.4 op.,
Majority ¶ Wis. Stat. majority's is well taken because question The 227.45(1) "Basic agency proceedings, that in provides part probative force shall relevancy, materiality and principles Generally, § 227.45 questions of fact." govern proof all proceedings. evidentiary in administrative standards relaxes Stores, LIRC, 272, App Inc. v. 2000 WI Wal-Mart Accord majority's decision n.8, 633. The 2d 621 N.W.2d 240 Wis. on in admin for reliance the standards today increases employed in beyond even the standard proceedings istrative majority op., 90. cases, majority See as the admits. criminal eviden- that "the relaxed majority steadfastly contends degen- proceedings meant to allow the tiary standard is not only relies agency where an administrative point erate to the major- Majority Apparently, op., ¶ evidence." unreliable This as "unreliable evidence." ity medical records characterizes majority question by ¶ 185. The its answers own stating "primary imposing that the reason" for stricter evidentiary agencies standards on administrative than hearings on criminal courts is that "in administrative represented by the claimants are often not coun- repre- case, sel... ." Id. In this however, Gehin was hearing sented counsel, the examiner anwas attor- ney, Group collectively and the Insurance Board had experience expertise. substantial Thus facts Imposing were similar to the facts Perales. an evi- dentiary hearings higher for standard applied than the standard in courts does not assist a person represented by who is not counsel. majority distinguishes Third, Perales "procedures kept simple
because must be as and inex- pensive possible system Majority for the to work." op., really just ¶ 66. This is a restatement of the majority's ground distinguishing first Perales —the *66 scope already of the SSA.As discussed, that was not the impetus Supreme holding. behind the Court's The ma- jority provides proceedings no reason that before the Group simple Insurance Board should not also be and inexpensive. odd, given this adoption court's evidentiary of an rule
expressly providing for the
provider
admission
of health care
despite
records
hearsay character,
their
908.03(6m),
Wis. Stat.
Supreme
holding
Court's
accompanying
reasoning
and
Perales,
Hagenkord
State,
v.
holding
and the
this court
(1981)
452, 469-71,
Wis. 2d
¶ also The 187. grounds writ- case "the doctors' in that factual because testimony. by in-person reports were corroborated ten [the medi- written in Perales consisted The evidence and] testimony reports, claimant, for the oral cal testimony government-paid that corroborated doctor's Majority hearsay reports." the substance of written op., what overstates summarization 67. This actually "government-paid did. The doctor" government-paid the claimant. never examined doctor simply Perales, He summarized the U.S. 396. hearing provided reports, medical reports. Id. of medical "consensus" examiner with a explained what the medi- to the examiner effect, he cal said. Group bar, the Insurance In the case at forms of the detailed had the benefit
Board examiner examining completed had to The doctors the doctors. "totally question: simple Luann Is Gehin answer a policy? meaning The the ICI within disabled" providing simply "yes" or "no" after checked doctors reasoning. findings The examiner did their provide the "consensus" medical doctor need another simply reports. how examiner could count these of many many "yes" answered and how doctors answered "no." Supreme relying Perales, a on Instead majority directly point, chooses to on
Court case Folding rely Works, Inc. v. Wisconsin Furniture Board, 851, 286 170, 285 N.W. 232 Wis. Labor Relations (1939). disregards thereby the remarkable It N.W. *67 similarity and turns in Perales of the factual situation fundamentally in situation factual different Folding Furniture.
193
Folding
¶ 190.
Furniture
a case about unfair
practices
bargaining
labor
in the
context
collective
employer.
between
labor union and an
atWis.
employer
Folding
objected
178-79. The
Furniture
the Wisconsin Labor Relations Board's admission of and
employee testimony
reliance on
about what the owner's
motivation was
certain statements he made and
opinion
actions he took and what the owner’s sons'
was
wage
about
increases. Id. at 188. Statements such as
prohibition
hearsay.
these fall within the heart of the
908.01(3) (definition
§§
hearsay),
See
Stat.
Wis.
(hearsay
excepted
908.02
inadmissible unless otherwise
rule).
general
from the
In the
case,
instant
the evidence
by laypersons
at issue is not oral statements
of "mere
opinion,"
reports prepared by
but medical
doctors after
personal
already
This
examinations.
court has
ratified
reports
the trustworthiness
inherent
in medical
expressly exempting "Health Care Provider Records"
operation
general
prohibiting
from the
rule
(6m).5
hearsay.
preamble
Wis. Stat. 908.03
Despite
major-
differences,
factual
ity
Folding
quotes
cites
Furniture because it
the United
Supreme
opinion
States
Court
in Consolidated Edison
Board,
Co. v. National Labor Relations
230. In merely Edison, but from Consolidated statement Folding Furniture, at 189. quoted 232 Wis. it. See language not addressed this Had Perales might Edison, have rea- this court from Consolidated struggle it do so But need not the two cases. with son expressly and dis- clarified the Perales Court because tinguished quoted from Consolidated statement Edison: very drawing, at the was the Chief Justice
The contrast
be deemed
cited,
not with material that would
page
was
judicial proceedings but with
formally
inadmissible
having rational
in evidence
basis
material "without
rejection by
blanket
This
not a
was
force."
probative
hearsay irrespective
reliance
Court
opposite was
value. The
reliability
probative
of
case.
added).
(emphasis
Perales,
National stated: received, other Hearsay may if corroborative of doubtless have as to some reasonable or otherwise such nature evidence from a bearing and documents determination. Letters on a for fact necessary such as is party authentication be received without nonlegal must have some be admissible But courts. opinion except in be a mere probative and not substantial force opinion experts proper consideration and is where the
fields knowledge special person giving to have some it shown weight. reasonably opinion entitling to some his 193. Unable to this ignore express language Perales, is forced to admit majority that "Perales casts doubt on viability the continued of Consolidated Majority Edison." op., persists Yet the majority that "many operate states continue to under rules that *69 function like the residuum rule." legal Majority op., 62. The majority punctuates analysis its with a substantial footnote to purporting show the vast num- jurisdictions ber of that do not follow Perales. Majority 62 n.76. Close of op., inspection the material therein reveals that much of it does majority's not the support conclusion.7 The later majority admits that "some cases Works, Folding Bd., Furniture Inc. v. Wisconsin Labor Relations (1939) 170, added). 188, 232 Wis. 285 N.W. (emphasis 7For example, majority cites an Alabama Administra tive provision: "Hearsay Code any is not sufficient to prove hearsay material fact" unless that would be admissible under a court-recognized exception. Ala. Admin. Code 482-1- r. (2004) 065-.04(9)(b) added). (emphasis The medical here issue are admissible recognized under a court exception. 908.03(6m). § See Therefore, Wis. Stat. the Alabama Adminis by trative Code provision majority actually cited contradicts its analysis conclusion. The same applies to the Minnesota rule by majority: "Hearsay cited may evidence be used for the purpose of supplementing explaining any or direct evidence but finding sufficient in itself to support a unless it would be objection admissible over in civil actions." Minn. R. (2003) 5601.3145(3) added). (emphasis Medical records that 908.03(6m) comply § with Wis. Stat. are "admissible" over objection in civil provides actions. The Montana Rule that "Hearsay may evidence be received and considered supple evidence, ment other hearsay but such may evidence not be support finding considered to a unless it would otherwise objection admissible over in civil actions or under the Montana 2-4-604(4) (2004) Rules Evidence." Mont. Admin. R. (empha of added). Likewise, sis provides "Hearsay Utah rule commentators" the opposing po- support . . some and . Majority court of op., appeals. as advanced sition authority favors most Notably, recently result is more court of Perales-based appeals' may purpose supplementing for the be used evidence evidence, it not be sufficient itself but shall explaining other judicial finding it be admissible unless would support added). 51-2-12(0 (emphasis Utah Admin. Code proceeding." Administrative Code: Finally, majority cites the Wisconsin probative if it has reasonable "Hearsay evidence is admissible solely hearsay no be decided but issue value 908, under ch. Stats." hearsay evidence is admissible unless the added). In all of § 140.16 (emphasis Admin. Code DWD Wis. hearsay states, under the medical are admissible these records Inc., 2d Graphics, Ex Color 838 So. Parte American rules. See 2002) 803(6) (Ala. (Ala. admission 385, R. allows Evid. exclusively in antici prepared medical records unless (Minn. Dick, 419 N.W.2d litigation); State v. pation (Medical 1988) and are reliable records are considered App. Ct. rule Minn. R. Evid. excluded from the specifically *70 1992) (Mont. Ditzel, 803(4)); 842 E2d 713 § Mason v. (Medical examining excepted are physician made records 803(4)); § R. Evid. Evid. Utah from the rule Mont. R. 908.03(6m). 803(4); Wis. Stat. admissibility of the evidence majority the believes that Majority op., the issue. evidentiary code "confuses"
under many in exactly espoused 89. Yet that is standard majority support in of its view. codes the cites 76, only footnote one majority cites in for the cases the As Board, 12 Libby Industrial Libby, McNeill & v.Alaska of them — (1950) court The Alaska medical records. Alaska —concerns Supreme Court's not have the benefit of in that case did Libby decided 1950—more reasoning in Perales because was years than 20 before Perales. authority contro- summary, of footnote 76 little hearsay medi- premise Perales —that the fundamental
verts nature, may inherently reliable because of their cal reports, proceedings. substantial evidence in constitute authority favoring majority's ap- minted than the (all proach. Compare majority op., ¶ 85 n.89 cases cited newer) (all majority op., ¶ are with 62 n.76 older). cases cited are 1986 or majority's preferred ¶ 194. Even the Consolidated only Edison test restricts reliance on "uncorroborated hearsay." Here, there is evidence in the record to reports. "Finding corroborate the medical The Board's participated job- of Fact #7" states that Gehin in a retraining program through the State of Wisconsin Division of Vocational Her Rehabilitation. duties in- "typing typewriter computer, cluded on both a and a filing, answering telephone, and other clerical du- ties." participation job
¶ 195. Gehin's within the re- training program "totally shows that she was not dis- meaning thereby abled" within the of the ICI contract, corroborating major- medical records. The ity majority op., has recited that definition in full, including language "complete inability by n.18, any medically physical reason of determinable, or men- impairment, engage any gainful tal substantial added). activity" (emphasis say Suffice to that Gehin "totally meaning was not disabled" within the of the ICI capable earning if contract she was amount equal monthly least to her ICI benefit. Id. Gehin's ICI benefit was If, Id. found, the Board $979.37. Gehin capable working per was a minimum of 24 hours week for four weeks month, each she could work a approximately minimum 96 hours each month. The Department Development Wisconsin of Workforce *71 average salary myriad maintains statistics for a professions by job Wisconsin, in broken down title and locality.8 by now earn an Madison, "secretaries" average per If had worked hour.9 Gehin of $14.17 per rate, that she would hour less than at hours $3.50 monthly of her ICI benefit in excess have earned finding Board corroborates This factual $979.37. totally disabled that was not conclusion Gehin majority reports. expressed The disre- medical finding gards "if uncor- evidence, instead this hearsay reports are elimi- medical written roborated in the no exists consideration, from evidence nated findings" [Board's] support about the record to (em- op., Majority physical ¶ 47 claimant's condition. added). phasis majority's opinion helps the claimant The many cases, shoe will be future this case. But finan- will force The court's decision
on the other foot. cially struggling expert pay the bills claimants Major- majority recognizes testimony. this concern. The majority op., ity ¶¶ claims that its decision The 102-03. require non- corroboration read to should Majority op., ¶ hearsay 103; all evidence in instances. ("[Ujncorroborated op., majority ¶ 81 but see in ad- constitute substantial alone does not suggests hearings."). majority ministrative may parties stipulate or to the or all of the facts to some upon of written the contents of and reliance submission majority reports. Majority op., ¶ 104. The also agency parties may stipulate suggests that the that the hearsay. findings of fact on uncorroborated its base Id. Development Department Wisconsin Workforce See Survey, available Employment Statistics Occupational (Nov. 2003).
www.dwd.state.wi.usloealwages.htm 9Id.
¶ 197. It should be a obvious that when claimant against appealing decides a decision on based adverse reports, willingly unwillingly medical the claimant or accepts judgment reports. in the The issue at hand accept judgment arises when a claimant does not reports, respondent one or more medical or when a party accept does not the conclusion in a claimant's reports. medical - majority recognizes, many 198. As the claim proceedings attorneys.
ants before the Board are not majority op., Non-attorneys might See under- standably suspicious of their adversaries in such proceedings probably and would not be willing stipulate. represented by to When claimants are attorneys, point pronounced: attorney is more what stipulate against worth her salt will to a fact parties attorneys Thus, interest of her client? both and press likely bring will the other side to in the doctors presentation testimony, of live as this court in essence requires today. 199. The court's decision even to lead
perverse government agency might result that a refuse quickly dispose aof claim in which it knows the position Depart- claimant's has instance, merit. For Employee ment of Trust Funds could decide to force the provide testimony claimant live to corroborate her doctor's records when it knows that the claimant's Conversely, financial resources are thin. claimants in positions might similar decide not to contest termina- they they tion benefits because know cannot afford expert testimony today majority the live that the de- mands.
¶ 200. The Perales does not case authorize admin- agencies findings solely istrative to make factual based hearsay irrespective reliability or nature recog- The Perales case hearsay. value of probative uncorroborated constitutes nizes that some proceeding in an administrative substantial worth reliability probative of its because has to opportunity party subpoena because are Medical records for cross-examination. witness *73 of reliable, probative, worthy as widely regarded do not If medical records uncorroborated acceptance. evidence, then, no un- arguably, constitute substantial records or statements constitute hearsay corroborated is the conse- staggering evidence. This substantial of decision. majority's quence future, In the administra- participants live, to provide in-person will be hearings required tive reliable evidence. testimony to corroborate 908.03(24) all allows the admission of § Wisconsin Stat. "comparable circumstantial having statements "Comparable" presum- of trustworthiness." guarantees to the other 23 "comparable" exceptions means ably § Yet under in Wis. Stat. 908.03. enumerated trustworthy rule, pieces none of these majority's an serve as the basis for evidence Business finding without corroboration. agency's deeds —none records, certificates, birth property constitutes documents commonly-relied upon these majority's under approach substantial non-hearsay evidence. corroborating sufficient without 908.03(6m)(b) specifi- 202. Wisconsin Stat. records, of medical the case cally provides long copies as unnecessary witness is authentication opposing parties have been served upon of the records indication before trial. This is another days at least inherent trust- of our common-sense conviction ma- records. The of medical integrity worthiness conviction. is inconsistent with this jority opinion II majority ¶ 203. The admitsthat medical "generally" reliability reliable, are but discountsthe explicitlyexplaining Dr. Whiffen'sevaluationwithout why.Majorityop., Presumably, majority ¶ 91. is referring "AttendingPhysician's to Dr.Whiffen's State- initially "yes" ment"onwhichDr.Whiffen checkedboth response 5(a) Question form, and "no"in on the inquires patient "totally which whetherthe is disabled." majorityop., majority See 74.The failsto note that question5(a) actually inquiring parts: first, is dividedinto two patient totally whetherthe is disabledas that applies Job,"and, second, definition to the "Patient's inquiring patient totally whetherthe is disabledas to "AnyOtherWork."Evenif Dr.Whiffen'sanswerto the part question response debatable, first the second his part clearly is not. Dr.Whiffen checkedthe indicating professionalopinion, box, "no" Gehinwasnot that in his "totally *74 disabled"suchthat shecouldnot "Any clarity undertake Other Work."The of Dr. response part question Whiffen's to the second of the majority's allegedly undercutsthe conclusionthat the questionablemarking report rendershis "notreliableas findings [Board's] [or] a basisforthe sionsoflaw." offact... conclu- Majorityop.,¶
III majorityopiniondisregards ¶ 204. The the estab- procedures Group lished Insurance Board. by Gehin'scasewasreviewedfirst the UnitedWisconsin Group, by Department Employee then Trust appealed Group Board, Funds.Gehin to the Insurance Department opposing party.10 making In that proof appeal, that she had to show the burden Gehin previously denied Wis. to the benefit. was entitled 11.03(8). § appeal, did ETF On Gehin Admin. Code object reports11 medical or to the admission of the to the reports. Department's the Board reliance on the Before proposed decision, decision, final it issued issued its § by required ETF to do rule. Wis. Admin. Code it is 11.09(1). "Arguably majority admits that object Findings opportunity to to the
claimant had being based on uncorroborated Fact Proposed Findings of Fact and Conclusions when the Actually, Majority op., ¶ 107. Law were released." object "arguable." By to more Gehin's chance was than proposed decision, the the Board issues its rule, when (Gehin) objection days losing party to to file an has § proposed ETF Wis. Admin. Code decision. 11.09(3). represented by 23-page Gehin, counsel, filed a objection proposed Board's decision. to the written objection was to the Board's However, Gehin's ñot contrary, reports. On the Gehin on the medical rebanee attempt to the Board's on the show that relied (" 11.02(3) 'Appeal' § Admin. ETF means Wis. Code See by department... a determination made the review of n unders. (6)(i), (7)(f), (8)(f), appeal This 40.03(l)(j), Stats." 40.03(6)(i) ("[The § Board] was to Wis. pursuant Stat. depart timely appeals of determinations made accept any group insurance affecting any right under ment or benefit Wis. Admin. plan chapter.")); for under this see also provided 11.03(7)(a) ("The party department shall be § Code ETF determination department."). of a made appeal each 11.06(2) "Failure provides ETF Admin. Code Wis. *75 any evidence object on the record to admission of party to objection." shall be deemed a of that waiver Proposed "totally Decision that she was not disabled" factually object was Gehin incorrect. failed to to the reports despite Board's reliance on the ETF the code provision aggrieved party specify, that "The shall provision proposed detail. . . each decision to party objects objec- which the the and basis for each [including] change party requests tion .. . each proposed legal board to make decision grounds change." for the Wis. Admin. Code ETF 11.09(3)(a)-(b). majority argu-
¶ 206. The skates over the Board's any right challenge ment that Gehin waived to Board's reliance on the medical because she objections grounds despite raised no multiple opportunities on those the noted Perplexingly, do so. the ma- jority ruling on relies the circuit court's that Gehin "was required object the claimant therefore objections," majority op., ¶ did not her waive despite its earlier correct statement that "This court Group reviews the decision of the Insurance Board, not appeals' the circuit court's order or court of decision." op., Majority majority The concludes it "need .5. right not decide whether the claimant waived her present challenge Findings case to the bases of the Majority op., majority Fact." cites no author- ity completely that allows it to fail to address the argument. majority provides fact, Board's no why arguments reason has not at all Gehin waived her reports. as to the Board's reliance the medical majority simply Instead, asserts that argument the Board's Perales-based would constitute "abandoning] long the rule used in this state that uncorroborated evidence alone does not consti- Majority op., ¶ tute substantial evidence." 8. The ma- jority yet "long used," terms its rule United Wisconsin *76 Department Employee Group, Funds, Trust the of the appeals Group of all Board, and the court Insurance applicable impression operated the the under rely medical re- the Board to on the allowed "rules" changing majority ports.12 the rules. At It the that is is majority this case to should remand minimum, light in the case to allow it to reconsider the Board majority resurrects. standard the the "residuum rule"
CONCLUSION has written that Professor Kenneth Davis supporting of the residuum reasons abandonment overwhelming give "overwhelming as to are rule —so given lip question have courts that rise to the whether rule have done so the basis to the residuum service misunderstanding through an exercise of instead of judgment." Davis, Kenneth 3 Administrative informed (2d 1980). Apparently § Treatise, ed. 16.6 at 239 Law majority the courts' and not "overwhelmed" is per- I am residuum rule. criticisms scholars' of the court of affirm the decision suaded and would reasoning relying appeals I would of Perales. on the adopt constitute the rule that proceedings if in administrative substantial evidence guarantees inherent evidence bears opposing party reliability and the and trustworthiness opportunity and the full notice of the evidence has challenge subpoenaing addition, I a witness. it attentive to the should be more this court believe employed by procedures adminis- and the waiver issue 11.12(2) "Standards" the sets out the Wis. Admin. Code (2)(a) Board to findings. allows the Board uses to make Section proves record which findings on "evidence base its greater weight of the certainty by the findings to a reasonable Hearsay excluded. credible evidence." agencies general, particular. trative and the Board in foregoing respectfully I reasons, For the dissent. I am authorized to state that Justice JON joins E WILCOX this dissent. ROGGENSACK, 210. PATIENCE DRAKE J.
{dissenting). The court reviews whether Wiscon- (Board) Group making sin Insurance Board erred *77 dependent finding sup- decision that was on a of fact ported by hearsay namely, reports evidence, written My colleagues' majority made medical and doctors. dissenting opinions hearsay, debate whether such if uncorroborated, constitutes "substantial evidence" un- 227.57(6). separately der Stat. I Wis. write dissent question I because would not reach the of whether uncorroborated constitutes substantial evi- dence as the evidence here was corroborated and constituted "substantial evidence" under §227.57(6). Accordingly, I would affirm the court of appeals.
I. BACKGROUND (Gehin) May 15, 1992, 211. On LuAnn Gehin injured working University her back while for the Hospital. qualified Wisconsin She for Income Continu- (ICI) benefits, ation Insurance 2,1993. effective June May Group 5, 1997, a letter dated United Wisconsin (UWG) eligible informed Gehin that she was beyond April longer 30, benefits 1997 because she no "Totally met the criteria for Disabled" under the ICI contract. Pursuant to contract, 5.15-4.b. of ICI "Totally Disabled" means: months,
After first the EMPLOYE'S com- determinable, plete inability by any medically reason engage any or mental sub- physical impairment, gainful activity for which the EMPLOYE is stantial reasonably regard due qualified with education, training, experience, prior EMPLOYE'S activity economic An is considered a substantial status. gainful activity earnings activity if the from that would gross equal be at least to the Income Continuation period benefit for the of time. same terminated, At the time her benefits were Gehin was receiving gross per month in ICI benefits. $979.34 Upon request,
¶ 212. reconsidered Gehin's UWG upheld Department determination, its and then the (DETF) Employee and af- Trust Funds reviewed subsequently appealed firmed to the UWG. Gehin Board. evidentiary hearing
¶ 213. The Board held an physician expert Gehin, a retained October employee gave testimony. DETF Gehin, and a Gehin pain. testified that she was not able to due to She work job-training participation her also testified about Family program through Department *78 of Health and on-the-job unpaid, experi- that included work Services (MMHI) Health from ence at Mendota Mental Institute spring fall of 1994 until the of 1997. hearing ¶ 214. The a num- officer also admitted including by exhibits, ber of documents created health professionals testify hearing, care who did not at the position some of which were favorable to Gehin's others which were favorable to determination. UWG's Among opinions were medical and evalu- these exhibits by treating prepared Whiffen, Dr. ations John Gehin's by independent physician, and Lemon, Dr. Richard by UWG, medical consultant retained neither of whom hearing. testified at the April 16, 2002, the Board issued its 215. On concluding, appellant "[T]he order,
final decision and requirements of the not disabled within the ICI was Findings April 30, Fact, after 1997." its contract by made Dr. the Board included statements Whiffen concluded that could work and Dr. Lemon that Gehin The Board relied on these written with restrictions. reaching opinions in its conclusion. The Board medical reasonably explained DETF ac- and the "UWG cepted opinions appellant's treating physician expert" presented that was and UWG's over favorable Gehin.
II. OF HEARSAYEVIDENCE CORROBORATION 227.57(6), §
¶ 216. Pursuant Stat. which Wis. agency governs scope decision, of review of this agency court "shall... set aside action or remand the agency agency's to the if it finds that the action case by depends any finding supported not on of fact that is 227.57(6) in the record."1 substantial evidence Section added). (emphasis "The test for substantial evidence is reach con whether reasonable minds could the same agency, given in the record." clusion as the the evidence Tech., LIRC, 90, 21, Hutchinson Inc. v. 2004 WI 2d Wis. N.W.2d 227.57(6) states: Wisconsin Stat. agency's depends any agency If the action on fact found proceeding, its a contested case the court shall substitute agency weight
judgment for that of the as to the of the evidence on shall, however, any disputed finding set aside of fact. court agency agency or remand the case to the if it finds that the action agency's any finding supported depends action of fact that is not in the record. substantial evidence
208 question ¶ 217. Some of our cases have called into hearsay may, that is whether evidence2 uncorroborated by itself, constitute "substantial evidence" under Wis. 227.57(6). § Folding Works, Inc. v. See Furniture Stat. (1939); Village WLRB, 170, 189, 232 285 N.W.851 Wis. DNR, 579, 610, 140 2d 412 Menomonee Falls v. Wis. (Ct. 1987); App. see also Wis. Admin. Code N.W.2d505 11.12(2)(b) § (providing in a final ETF that decision finding upon Board, of fact based "No be hearsay hearsay.")3 general matter, is As suspect regarding of concern its considered because § reliability. 2d As the See 29 Am. Jur. Evidence 658. very hearsay problem clear, definition of makes hearsay relying hearsay with statement is that 908.01(3) § may not true. See Wis. Stat. statement (defining hearsay statement, "a other than one made as testifying hearing, the declarant at the trial or while prove matter offered asserted"). evidence to the truth of the hearsay requires ¶ 218. The use of evidence often reliability. Florida v. corroboration to insure its See (2000). determining J.L., how 529 U.S. type much and what of evidence is sufficient for cor- roboration, have held evidence is sufficient to cor- we "permit[s] person if to con- roborate it a reasonable 227.45(1) evidence is admissible. See Wis. Hearsay Stat. agency hearing that "an or examiner not be (providing shall evidence"). The statutory common rules of bound law establishing hearsay play issue here is what role evidence can substantial evidence. majority rule opinion interprets proscribing this corroborated, and it Mr. Miller's only is not uses asserting it corrobo report opinion its after Majority op., rated. *80 light
elude, circumstances, in of all the facts and Guerard, the statement could be true." State v. 2004 WI (citation ¶ 5, 250, 2d 12 85, omitted).4 273 Wis. 682 N.W2d appropriate stan- This is corroboration apply if dard to here because statement rely true, could be reasonable minds could on it as Tech., 2d substantial evidence. See Hutchinson 273 Wis. ¶ 394, 21.
¶
flexible,
219. This test for corroboration is
as it
prescribes
type
"neither
nor limits the
or source of
acceptable
Guerard,
corroboration." See
273 Wis. 2d
¶
250,
32.
is sufficient if it makes a fact
Corroboration
reasonably
Additionally,
id., ¶
"debatable." See
33.
may
points
there
be a "conflict between two distinct
may "point[]
view" or the relevant evidence
in different
directions," neither of which defeats corroboration. See
finally,
id. And
made
corroboration does
have to be
independent
id.,
an
source. See
34. Certain evi-
self-corroborating.5
dence can
id.
See
present
majority
case,
In
asserts
report
Whiffen,
that the
of Dr.
written
who has treated
report
indepen-
1993, and the written
of an
Gehin since
performed by
dent medical
Dr. Lemon in
evaluation
Guerard,
85,
250,
State v.
2004 WI
273 Wis. 2d
682 N.W2d
908.045(4)
12,
interpretation
is based on an
of Wis. Stat.
types
permit
of corroboration sufficient to
the admission of
statutes,
hearsay statements under that section of the
in the
testimony by
face of in-court
v.
Schipper
victim. See also
(1970)
303, 174
Schipper,
(discussing
46 Wis. 2d
N.W.2d 474
required
grounds
corroboration that
once
in order to find
was
divorce),
in
on
part
grounds by
overruled
other
O'Connor v.
(1970).
O'Connor,
535,
48 Wis. 2d
ments from these conclusion, included the Board's its were reaching Fact: Findings January 30, asked Dr.
10.On UWG condition. update as to Gehin's provide Whiffen to 7, 1997, February that Gehin opined Dr. Whiffen restrictions, including full-time with up could work every for five change position need to 45-60 minutes *81 11, 1997, Dr. stated that minutes. On March Whiffen job, Gehin could return to her former with restrictions. 3, 11. Dr. Lemon examined Gehin on December him with the contractual defini- provided 1997. UWG long-term tion for benefits. Dr. Lemon concluded long-term benefit Gehin did not meet the contractual stating: definition I pain] symptoms back believe that [low
Because of permanent to under work restric- Ms. Gehin needs be working I 8 hours a capable tions. believe that she is sitting day can alternate between and stand- where she I to be ing every 30 minutes. believe that she needs lifting than She also needs to avoid pounds. no more 5 twisting. I Ms. any stooping, bending or believe that easily in a as a employed position could such Gehin using she is able to stand or sit receptionist where Certainly, headset for comfort. Ms. Gehin telephone light paperwork computer some work. could also do only years I it hard to believe that Ms. Gehin at 53 find age totally unemployable. hearsay, are reports 221. While both doctors' Dr. had First, Whiffen are not uncorroborated. they to the was able to work prior that Gehin reported 7, relied 30, February January reports 9,1994, the Board. dated December report upon to return Dr. that Gehin was able opined Whiffen first hourly "3/24/94," work as of with no restrictions but weight, lifting bending with restrictions. He re- peated opinion report in a 27, dated November replete Further, the record is with medical reports in records addition to the of Drs. Whiffen and report Lemon. One such is that of Dr. Kenneth Redlin, September 17, dated 1997. Dr. Redlin related that an (FCE) August Capacity 12,1997 Functional Evaluation "inability squat, indicated Gehin has lift, stand, carry anything negligible walk or loads," but but he just camping trip noted that Gehin had returned from a by camper. opined where she traveled He that the FCE's "spinal (Emphasis evaluation was NOT VALID." original.) independent He further noted that an medical employment exam done 1994 did not indicate limi- tations. From this, he concluded that the FCE done on August 12, reliable, not be and he recom- independent mended a new medical examination. ¶ 223. The of Whiffen, Dr. Dr. Lemon and Dr. Redlin corroborate one another under the standards they opinions we set in Guerard because show that the report Guerard, each "couldbe true." 273 Wis. 2d *82 ¶ First, 5. the records from Dr. Whiffen date back to treating physician. 1992; he her was Second, all three complaints pain doctors focus on Gehin's about back notwithstanding and conclude that she could work, her complaints. report Third, Dr. Lemon's is in written response request opinion to a that he render his of light "totally Gehin's in condition of the definition of given in disabled" the ICI contract, which definition is opinion. himto and forms the framework for his And reports fourth, self-corroborating, of Drs. Whiffen and Lemon are corroborating
as well as each other. They prepared independently, they repeat were but about the same conclusion and draw medical facts same disability. id., See total Gehin's claimed herself, testified suf- Furthermore, Gehin, ¶ 224. opinions Drs. Whiffen that the ficient to show her about she testified true, that Lemon could he on-the-joh training program that MMHI. She said at typing, perform tasks, clerical such was able she filing, sorting working computer, and run- mail, on a using receptionist ning duties, errands, as well as she and walk while to her stand that allowed headset regularly phone. that she testified She answered doing . these tasks. rests while took explained a certain that she missed ¶ 225. Gehin training early, on-the-job days left of this number attending pain, part was also because she due to but surgery college, foot had at a local technical classes "allergenic" episodes. A hysterectomy, letter and had generally supervisor she stated that from Gehin's record also However, the hours a week. worked 24-30 signed Gehin statement includes a handwritten job training "leave[s] at 7:15 relating for on the she that Friday Monday I MMHI rest when thru a.m. till 4:30 get work schedule. That is a full-time home." majority opinion evaluate the does not The question regard corrobora- to the of record facts determining any apply standard does it tion, nor reports relied on were the Board that whether by assuming simply the issue It ducks corroborated. Majority op., reports were uncorroborated. conclusory multiple statements makes 3.6It also cor- were not and Lemon Drs. Whiffen states, following pre "The issue majority opinion alone evidence written Does uncorroborated sented: (that testimony) constitute sub by in-person is controverted fac- Board's Group Insurance support stantial *83 e.g., majority op., ¶¶ 8, See 45, 47, roborated. lack However, of corroboration cannot be assumed because in corroboration is an issue case. this Additionally, opin-
¶ 227. at issue are expert recognized witnesses, ions of which we have as being types hearsay, regard different from in other reliability. explained Folding their in Furniture, As we Hearsay may received, doubtless be if corroborative other evidence or of such as to otherwise nature have bearing some reasonable on a fact for determina- [N]on-legal tion. ... evidence to be admissible must have some substantial probative force and not be a opinion except opinion where the mere fields experts proper is person giving consideration and the for it special to have shown some knowledge reasonably entitling opinion weight. his to some added). Folding (emphasis Furniture, 232 at 188 Wis. Accordingly, for the I above, reasons have set out I conclude that reasonable minds could reach the conclu- "totally sion that Gehin was not disabled" defined in opinions ICI contract reliance on the and evalu- my ations of Dr. Whiffen Dr. view, Lemon. In those opinions and evaluations constitute "substantial evi- 227.57(6) they dence" under Wis. Stat. because are corroborated are reliable their own right.
tual findings, which in turn form the basis its conclusion of i.e., law, the claimant's benefits should be terminated as of April 30, 1997?"
III. CONCLUSION question of reach the I sum, would 228. substan- constitutes uncorroborated whether here was evidence because tial un- evidence" "substantial constituted corroborated 227.57(6). Stat. der Wis. the court I affirm Therefore, would majority respectfully from the
appeals, dissent I opinion. JON that Justices to state I authorized am join this dissent. T. PROSSER and DAVID
E WILCOX