Legal Residuum Case Analysis

Listen to this article

A question raised by this decision is whether the results in future cases can be changed by reframing the issue.

Section 227.57(6) provides, “the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency’s action or remand the case to the agency if it finds that the agency’s action depends on any finding of fact that is not supported by substantial evidence.”

The majority opinion framed the issue as follows: “This case involves the meaning of the words ‘substantial evidence’ as used in sec. 227.57(6).”

However, the issue could be framed as, “This case involves the meaning of the words ‘disputed finding of fact.’”

Paragraphs 11-44 of the majority opinion reveal that what was really in dispute was not facts, but medical conclusions. Paragraph 45 acknowledges as much: “… a number of the underlying facts … were either undisputed or supported by live testimony. …The written hearsay medical reports about the claimant’s physical restrictions or ability to work full time, upon which the Group Insurance Board based its Findings of Fact and its decision to terminate the claimant’s benefits, are uncorroborated and in fact were contradicted by live testimony.”

In paragraph 79, the majority wrote, “Without Dr. Whiffen’s and Dr. Lemon’s testimony about what they meant by their responses, their reports are not reliable as a basis for the Group Insurance Board’s findings of fact about the permanent physical work restrictions and her ability to work full-time or the board’s conclusions of law that the claimant was not totally disabled under the contract.”

The court classifies the work restrictions as findings of fact, and the Board’s determinations as conclusions of law, but the work restrictions could be viewed as being conclusions themselves rather than facts.

Viewed thus, the question is not really whether hearsay statements as to facts must be corroborated, but whether medical conclusions are reliable or not, without the opportunity to cross-examine the doctor.

The court wrote, “The substantial evidence rule proscribing an administrative agency’s relying solely on uncorroborated hearsay is sometimes called the legal residuum rule. This rule is based in part on the reasoning that ‘since hearsay, due to its second hand nature, is inherently suspect, a determination based solely on hearsay can never be more than conjecture’”

In truth, however, there is nothing inherently suspect about the doctors’ conclusions about the claimant’s work restrictions, in the way that traditional hearsay — X testifies that Y said that Z happened — is inherently suspect. On the contrary, medical reports are considered reliable evidence. As Roggensack’s dissent argued, “the reports at issue are opinions of expert witnesses, which we have recognized as being different from other types of hearsay, in regard to their reliability.”

The real issue is not corroboration, but fundamental fairness.

Justice Roggensack’s dissent, which concludes the evidence was corroborated, is illuminating on this point.

Roggensack set forth the standard as follows: “In determining how much and what type of evidence is sufficient for corroboration, we have held evidence is sufficient to corroborate if it ‘permit[s] a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.’ State v. Guerard, 2004 WI 85, par. 5, 273 Wis.2d 250, 682 N.W.2d 12. This is the appropriate corroboration standard to apply here because if the hearsay statement could be true, reasonable minds could rely on it as substantial evidence. See Hutchinson Tech., 273 Wis.2d 394, par. 21.”

Roggensack states that this definition is “flexible,” and that “corroboration is sufficient if it makes a fact reasonably ‘debatable,’ adding, “there may be a ‘conflict between two distinct points of view,’” and concluding, “Certain evidence can be self-corroborating.”

The observations are essential to consider in the worker’s compensation context, because in many cases, the “conflict between two distinct points of view” is the crux of the matter, not facts, in the traditional meaning of the word. Suppose there is no dispute that a worker has been injured on the job, and that he is permanently affected. He’s been examined and the results of the examinations are not in dispute.

The only question is interpretation — how disabled is he? — an issue that turns on the opinions of competing experts, and may not even involve any “facts” to debate. Nevertheless, the majority opinion would treat this as a case involving disputed facts that must be corroborated.

In contrast, Roggensack’s observation about facts being “self-corroborating” is not relevant in this context. The classic example of self-corroborating hearsay is a confession in which the declarant states where the murder weapon may be found, or gives other details that would be known only to the guilty party. See Pecoraro v. Walls, 286 F.3d 439, 442. However, in a battle of expert witnesses, the concept of “self-corroborating” medical reports does not come into play.

Roggensack proceeds to detail assorted facts, and posits that these facts corroborate the medical opinions of the EFT’s medical reports, and asserts, “The majority opinion does not evaluate the facts of record in regard to the question of corroboration, nor does it apply any standard for determining whether the reports that the board relied on were corroborated. It simply ducks the issue by assuming that the reports were uncorroborated (emphasis in original).”

	Related Links Wisconsin Court System Related Article High court reaffirms ‘legal residuum rule’

The rift between the majority opinion and the dissent is not reconcilable, without acknowledgement that, when the majority opinion speaks of “corroboration,” what it really means is explanation and the opportunity to cross-examine.

A medical report may state that the claimant was administered test X, the results were Y, and the conclusion is Z (either the claimant is, or is not, disabled). The claimant may acknowledge that she took test X, and the results were Y. Technically, all facts included in the hearsay medical report have been corroborated.

If the ultimate question, however, is whether the correct conclusion to draw is Z or not Z, the corroboration is not relevant to any material issue. What is needed is the opportunity to cross-examine the expert on whether Z is the correct conclusion.

If corroboration of medical reports were the real issue, then Roggensack’s dissent would be the majority. The fact that it is a dissent, and the language in paragraph 79 of the majority opinion, quoted above, make clear that the real issue is whether medical reports are reliable without explanation.

As a result, even if a party in a future case can reframe the issue from “what is ‘substantial evidence’?’” to “what is a ‘disputed finding of fact’?” the result will likely be the same.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.