*1 534 57 Mich

MORRIS v GENERAL MOTORS CORPORATION

Opinion op the Court Compensation Right 1. Workmen’s — to Benefits —Favored Work— Refusal to Perform. employee’s right An compensation to workmen’s benefits ends if provided he refuses to by employer which is work”, meeting requirements "favored employee’s physical limitations. Compensation Compensation Appeal 2. Workmen’s —Workmen’s Findings Board — Fact —Conclusiveness—Statutes. Findings by compensation fact made workmen’s board, fraud, conclusive, in the absence of findings are and such any will not be disturbed if there is evidence on the record to (MCLA418.861). support findings Admissibility. 3. Evidence —Motion Pictures — pictures may Motion be admissible into evidence if it is estab- they depict subject lished that matter in same question. conditions as existed at the time in Compensation Evidence—Videotape—Admissibility 4. Workmen’s — —Depiction of Conditions. A was introduced in a workmen’s solely case to show assigned the manner in which the task injured employee and the location of automobile tires properly involved in the admitted plaintiff into evidence where the failed to demonstrate that the videotape misrepresented the material facts. ^[7] ^[3] [4-6] ^[2] ^[1] Use of motion 29 Am Jur 58 Am Am 58 Am Am Jur, Jur, Jur, Jur, 2d, Workmen’s Workmen’s References Workmen’s Evidence 801. as evidence. 62 ALR2d 686. Compensation Compensation Compensation § for Points Compensation in Headnotes § § § 527. 529. 334 et § 444 et seq. seq. v General Motors Appeal and Error —Workmen’s —Evidence—Pre- serving Question. plaintiff A claim a in a workmen’s case that he surprised by employer the introduction of a video- tape depicting plaintiff’s job the manner which the *2 rejected plaintiff must be where the made no claim hearing surprise attempt depose of at the and made no provide film to worker board with (MCLA418.859). additional evidence by O’Hara, J. Compensation Evidence—Videotape—Admissibility. 6. Workmen’s — videotape depicting operation Admission into evidence of a injured employee that an claimed he was unable to injury, depicted because of a knee where the worker healthy, uninjured, unimpaired and with func- knee, impermissible. tion of his Appeal Compensation of 7. and Error —Workmen’s Question — of Law. Question Fact — Admissibility evidentiary in a workmen’s of reconstructed matter province is a of and the case law Appeals. Court of Appeal

Appeal from Workmen’s 1974, 10, Division October Board. Submitted 19058.) (Docket 8, January Decided Detroit. No. for. appeal applied 1975. Leave to Mo- against Felix A. Morris General Claim Run, Willow Corporation, tors Chevrolet Division denied. compensation. Benefits for workmen’s granted. leave Affirmed. appeals by Plaintiff Glotta, Dinges, Adelman & plaintiff. Norris, for defendant. R. Richard Bronson, Danhof, J., P. Before: O’Hara,* JJ._ * Justice, Supreme sitting Appeals by Court Former Court 6,

assignment pursuant to Const art 23 as amended in 1968. § Bronson, Plaintiff, Morris, Felix A. is here contesting an order Compensa- Board, Appeal which affirmed a refer- finding ee’s Morris "had not sustained his proving compensable burden disability s¡c ^[*] ^[*] » right injured knee on August

1968 while working on "road and roll” at defendant-appellee General Motors’ Willow Run plant. Surgery on two occasions to repair damaged knee. Morris returned to work on December had voluntar- ily paid compensation for Morris’ injury until date.1

Upon returning GM, to work for Morris was assigned during the next several weeks to a series *3 tasks, varying of because he was unable to engage bending and squatting required inspection job he had previously performed. The job Morris was given finally forms the basis of this dispute.

It is "engine described and tire inspection” by Morris "sixth pass, right-hand inspection” by GM. Basically, job this checking engine entails compartment, grill, tires and wheels. Morris proper claims that performance of these duties him to "squat to make sure had they correct tire and wheel”. GM refuted this claim in the Workmen’s proceedings through general foreman, testimony Norman 1 periods Sep The referee awarded for from various 6, through granted 1968 tember December credit 1970 compensation previously paid by during periods. those That finding by appeal was affirmed board and not at issue here. v Motors Morris General op Opinion the Court through production

McGarry, and inspec- purported to illustrate process. board referee and Both the capably final could be job that Morris’ concluded him, the recommen- consistent with performed by treating Morris chal- physicians. dations finding this of fact. lenges doubt Morris is not disabled There is no that witnesses called from all work. Medical doing could do agreed definitely that he testify him or knee bend- squatting work that did not involve presented is whether ing. so, If requirements. GM meets those

provided by Grape v Hope Welch work”, it then "favored Co, 128; 207 Juice App 46 Mich NW2d perform right it cuts off his refusal and Morris’ v Lynch benefits. to workmen’s 172; 45 Manufacturing Co, 329 Mich Briggs & (1950); Pulley Engineering Detroit NW2d Co, 346, 351; 136 Machine Co, supra, (1965); Hope Grape v Welch Juice unable to he was to check required squatting because tires "to make sure kicking tire name and disagreed, stating in them”. McGarry there is air duties proper performance claimed kicking. or He require squatting did bending name visible without tire inflation proper tire and that down long-handled with a striking tires checked *4 wrench, kicking avoiding the action thus a dispute presents This Morris’ knee. aggravated in the determined fact to be paradigmatic offi- the workmen’s first instance cials. op Opinion the Court

Appellate review of findings fact in such cases severely 418.861; limited. MCLA MSA 17.237(861) provides, part: "findings fact acting made the board powers, within its fraud, absence of be shall conclusive”. provi- This sion has interpreted been to mean that board questions decisions on of fact will not be disturbed if there is any evidence on the support record to its findings. Fergus Chrysler Corp, 45 Mich App 199; on rev’d other grounds, 389 Mich 811

Both witnesses claimed familiarity with the in question; Morris as one who performed it and McGarry supervised one who performance. such here, There is no allegation fraud and we are prepared say there absence of competent evidence support the board’s conclu- sion. re-emphasize We that we are not at liberty substitute our judgment for that of the board. The determination that Morris prove failed to claim must stand.

Morris also maintains the board’s decision must be overturned for a different reason. The finding that Morris failed to show that entitled to further grounded part on a depicting worker performing the duties Morris claims he cannot fulfill.

The taping was done on March 1972 at about 8:00 m. on p. the second shift. A engineer safety positioned himself assembly line and filmed about 5 to 10 minutes of the process. authenticated properly attorney operator and Morris’ cross-examined the of the equipment.

Morris claims that mis- videotape "grossly represented the material facts”. He stresses Morris, the worker shown was not but someone *5 Motors v General suggests He that inches shorter. also else three portray cannot adequately film such a brief that he Finally, argues week. he in a 40-hour done the of the surprise by use taken was check its opportunity had no consequently in the workman accuracy or tape. the videotape accurately that

McGarry ques- in job the manner in which the reproduced He stated that vari- customarily is done. also significantly do not differ ous employees the work. way they film in order admitted the referee on the the car tires were to determine whether inspection. Morris had testified during floor floor, it making impossi- that the tires were The film squatting. to check them without ble inches off the tires were three or four that showed through on con- the cars ground canje veyor belt. Road Commission- Wayne County

In Kaminski v ers, 389; 121 NW2d 830 370 Mich in for motion that order Court held Supreme admissible, established must be to be matter in substan- subject they depict that the time as existed at the same conditions tially question. in this case emphasize

We prior conditions designed not to reconstruct Kaminski, Manning v supra, or accident, as in Co, 316; 144 I R & App 4 Mich Superior Lake solely as It introduced in which aid, the manner to show demonstrative the location task the film of the workman identity tires. The per critical, testimony that given the is failed manner. Morris in the usual formed O’Hara, to demonstrate the three-inch differ- height ence it makes more that he likely is squat to adequately out carry inspection. Though it possible to vary speed belt, conveyor there no showing its speed altered to accuracy distort film. importantly, Most Morris does not maintain *6 height of the tires off the floor —that aspect of the film which the hearing pur- referee ported rely to most heavily misrepre- on—was sented. Because the depicted relevant conditions were to similar those existing at time Morris was performing illustrated tape, we conclude hearing referee did not err in admitting into evidence. Morris’ claim of surprise rejected. must also be problem He did not mention this hearing Further, before referee. attempt made no depose the worker the film in order to provide appeal board with additional evidence 17.237(859).2 pursuant 418.859; to MCLA MSA Having advantage failed to take of such opportuni- below, ties he cannot be heard to on complain appeal.

The decision of the

Appeal Board is No affirmed. costs.

Affirmed. J.,

Danhof, P. concurred. (dissenting). O’Hara, J. I would under reverse Wayne County v Road Kaminski the mandate of filed, promptly "If a claim review is board shall review the the order, together may hearing; with the hear records of parties, may together with such discretion additional evidence as it in its allow them submit file its records of and shall order with the proceedings.” General Motors O’Hara,

Commissioners, 389; 121 NW2d 830 operation in which the involved

A.videotape em- healthy uninjured depicted perfectly with a unimpaired with function of the defendant ployee way mile from the country away knee is the work. he had to claimant credibility of the of witnesses The determination instance, of the admin- in the first province, is the ultimately judge1 law istrative board. mat- evidentiary of reconstructed

Admissibility province. law and our ter is a knowing no the reason absolutely way I have IAll know is tape "designed”. for which the it did do. Its admission was impermissible what erroneous. reversibly expressly new I would remand for a of which videotape, the admission excluding having "grossly strenuously plaintiff objected misrepresented the material facts”.

1Formerly "referee”.