Beeler v. General Motors Corp.

189 N.W.2d 64, 32 Mich. App. 661, 1971 Mich. App. LEXIS 1957

• Court: Michigan Court of Appeals
• Decided: April 23, 1971
• Docket: Docket 9503
• Status: Published

Opinion

Danhoe, J.

Plaintiff brought this action seeking benefits under the Workmen’s Compensation Act. The plaintiff contends that he suffered an injury caused by inhaling smoke, dust, fumes, and similar irritants at his place of employment.

A hearing was held at which only the plaintiff’s testimony was taken. Subsequently the depositions of two physicians were submitted. The referee then indicated that he wished to have X-rays of the plaintiff examined by an independent physician. The plaintiff’s attorney responded to the referee’s request with a letter which contained the following statements:

“Pursuant to your instructions and in accordance with your investigative powers under the Workmen’s Compensation Act, I have instructed Dr. Shapiro to send to the doctor chosen by you, the X-rays regarding Mr. Beeler.

“I would assume in conjunction with that we will be favored with both reports and the opportunity to cross-examine the doctor chosen, if you choose to consider Ms views in the determination of this case.”

The physician examined the X-rays and submitted a report to the referee. The report indicated that the plaintiff had not suffered an injury. On June 5, 1968, the referee mailed a copy of the physician’s report to the plaintiff’s attorney. In a decision dated July 2, 1968, and mailed July 15, 1968, the referee found that the plaintiff had not suffered a personal injury arising out of and in the course of his employment.

On appeal one issue of substance is presented: whether the plaintiff was deprived of due process of law because he was not allowed to cross-examine the physician that had been selected by the referee. The denial of this right would, of course, require a reversal. See 2 Larson Workmen’s Compensation, § 79.63.

The appeal board held that the plaintiff had waived the right to cross-examine by the failure to make an appropriate motion after he had received a copy of the doctor’s report. We do not agree. Particularly in view of the plaintiff’s earlier request for cross-examination, we cannot presume waiver merely from his silence.

Remanded for further proceedings. We do not retain jurisdiction.

All concurred.