Rentz v. General Motors Corp.

245 N.W.2d 705, 70 Mich. App. 249, 1976 Mich. App. LEXIS 839

• Court: Michigan Court of Appeals
• Decided: July 21, 1976
• Docket: Docket 25170
• Status: Published

Opinions

D. C. Riley, J.

Plaintiff appeals by leave from a June 27, 1975, decision and order of the Workmen’s Compensation Appeal Board, reversing the order of the hearing referee, that had awarded plaintiff $10,500 plus interest for a compensable lung disability.

Plaintiff’s appellate arguments are directed solely to a substantive question of evidence. Plaintiff argues that the decision of the board is not based on competent evidence, because the decision is grounded on a doctor’s deposition testimony, which in turn was partially based on a fellow doctor’s written report accompanying an X-ray of plaintiff’s heart. We need concern ourselves only with the substantive propriety of the board’s consideration of the deposed doctor’s reliance on the report. The parties do not raise, nor need we address, any procedural irregularities allegedly arising in the board’s consideration of the evidence.¹

As part of the proceedings, defendant introduced the deposition of Dr. Melvin Lester. Dr. Lester concluded that plaintiff’s lung condition was attributable to a natural degeneration of plaintiff’s heart, the result of his 74 years of life, rather than due to any impurities in his working atmosphere. In reaching his conclusion, Dr. Lester referred to a report accompanying an X-ray of plaintiff’s heart. The report was prepared by the doctor taking the X-ray, a Dr. Wanger, a staff member of a clinic supervised by Dr. Lester. The report contained Dr. Wanger’s description of plaintiff’s heart as "enlarged”. Dr. Lester referred to this description in stating his proposed etiology of plaintiff’s ailments.

Plaintiff claims that Dr. Lester’s opinion, and hence the board decision, must fall because Dr. Lester’s opinion was based on inadmissible hearsay, i.e., Wanger’s report. However, Bond v Greenwood, 34 Mich App 41, 43; 190 NW2d 731 (1971), clearly establishes that in judicial proceedings, a hospital record is admissible as a business entry under MCLA 600.2146; MSA 27A.2146 if the record contains "a general description of a physical condition, as distinguished from a diagnosis”. 34 Mich App at 43. The present report, made by a member of the staff supervised by Dr. Lester, is not a diagnosis but a statement of physical condition. A diagnosis is the "discovery of the source of a patient’s illness or the determination of the nature of his disease from a study of the symptoms”. Black’s Law Dictionary (4th ed), 540.² "Enlarged” says little about etiology and is more properly considered a factual adjective, albeit requiring some perceptual approximation. Most physical descriptions require some degree of perceptual flexibility.³

We note that in Wade v Bay City, 57 Mich App 581; 226 NW2d 569 (1975), this Court ruled inadmissible as a diagnosis an X-ray report that concluded " 'we have no X-ray evidence of bone or joint pathology of recent traumatic origin’”, 57 Mich App at 583. That report clearly suggests an etiology, a source, an analysis; the present report does not.

A further point may be made. Bond and Wade discuss hospital report hearsay in a judicial setting. It is now established that evidentiary rulings in administrative proceedings may stray from rigid courtroom rules on evidence. E.g., Viculin v Department of Civil Service, 386 Mich 375, 403; 192 NW2d 449 (1971). In fact, in contested cases before an administrative agency, a fact-finder may admit and give probative effect to "evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs”. MCLA 24.275; MSA 3.560 (175). Should not then a reasonably prudent person feel safe in relying on and finding relevance in the description "enlarged heart” issued by a physician, particularly when the physician’s supervisor-doctor is present to answer questions about the X-ray procedures employed by the clinic? If a doctor would rely on the X-ray report, can it be said that a reasonably prudent person would not?⁴

Finally, we note that the board accepted the credible testimony of a plant foreman, familiar with plaintiff’s working area, that there was no atmospheric debris in plaintiff’s area. This testimony supports, if not establishes, the defense that plaintiff experienced breathing ailments because of his age. Our examination of this record indicates that the decision of the Workmen’s Compensation Appeal Board was based on competent, material and substantial evidence. Gilbert v Reynolds Metals Co, 59 Mich App 62; 228 NW2d 542 (1975).

Affirmed. No costs.

R. M. Maher, P. J., concurred.

1 The very fact that the board relied on a certain bit of evidence suggests to us that they did not intend to reject that specific bit of admissible evidence now in question. We suspect that plaintiff agrees with us, for he does not mention this issue raised by the dissent.

2 See also Webster’s New World Dictionary (2nd college ed), 388 ("diagnosis” is "examination of the symptoms” or "analysis of the facts”. (Emphasis supplied.)

3 The fact that this panel has some difficulty in drawing the physical condition/diagnosis line illustrates the attractiveness of the rule proposed in 2 Jones on Evidence, § 12:12, p 363-364 (6th ed, 1972) (admit all statements in hospital records unless "conjectural” or "of technical nature”). See also McCormick on Evidence, § 290, pp 612-613. We need not adopt those commentator’s proposals, but we do take note of certain ruses this Court has previously employed to accomplish similar purposes. E.g., Kuhnee v Miller, 37 Mich App 649; 195 NW2d 299 (1972), Boudrie v Seven-Up Bottling Co, 40 Mich App 686; 199 NW2d 539 (1972).

4 We refer to the Administrative Procedures Act rules of evidence Section, MCLA 24.275; MSA 3.560(175), only by analogy. We do not mean to suggest that cases before the Workmen’s Compensation Appeal Board are to be conducted identically to "contested cases” under the Administrative Procedures Act. MCLA 24.203; MSA 3.560(103).