Gehin v. Wisconsin Group Insurance Board

PATIENCE DRAKE ROGGENSACK, J.

¶ 210. {dissenting). The court reviews whether the Wisconsin Group Insurance Board (Board) erred in making a decision that was dependent on a finding of fact supported by written hearsay evidence, namely, reports made by medical doctors. My colleagues' majority and dissenting opinions debate whether such hearsay, if uncorroborated, constitutes "substantial evidence" under Wis. Stat. § 227.57(6). I write separately in dissent because I would not reach the question of whether uncorroborated hearsay constitutes substantial evidence as the hearsay evidence here was corroborated and constituted "substantial evidence" under §227.57(6). Accordingly, I would affirm the court of appeals.

I. BACKGROUND

¶ 211. On May 15, 1992, LuAnn Gehin (Gehin) injured her back while working for the University of Wisconsin Hospital. She qualified for Income Continuation Insurance (ICI) benefits, effective June 2,1993. In a letter dated May 5, 1997, United Wisconsin Group (UWG) informed Gehin that she was not eligible for benefits beyond April 30, 1997 because she no longer met the criteria for "Totally Disabled" under the ICI contract. Pursuant to 5.15-4.b. of the ICI contract, "Totally Disabled" means:

After the first 12 months, the EMPLOYE'S complete inability by reason of any medically determinable, *207physical or mental impairment, to engage in any substantial gainful activity for which the EMPLOYE is reasonably qualified with due regard to the EMPLOYE'S education, training, experience, and prior economic status. An activity is considered a substantial gainful activity if the earnings from that activity would be at least equal to the gross Income Continuation benefit for the same period of time.

At the time her benefits were terminated, Gehin was receiving $979.34 per month in gross ICI benefits.

¶ 212. Upon Gehin's request, UWG reconsidered and upheld its determination, and then the Department of Employee Trust Funds (DETF) reviewed and affirmed UWG. Gehin subsequently appealed to the Board.

¶ 213. The Board held an evidentiary hearing on October 2, 2001. Gehin, a physician expert retained by Gehin, and a DETF employee gave testimony. Gehin testified that she was not able to work due to pain. She also testified about her participation in a job-training program through the Department of Health and Family Services that included unpaid, on-the-job work experience at Mendota Mental Health Institute (MMHI) from the fall of 1994 until the spring of 1997.

¶ 214. The hearing officer also admitted a number of exhibits, including documents created by health care professionals who did not testify at the hearing, some of which were favorable to Gehin's position and others which were favorable to UWG's determination. Among these exhibits were medical opinions and evaluations prepared by Dr. John Whiffen, Gehin's treating physician, and by Dr. Richard Lemon, an independent medical consultant retained by UWG, neither of whom testified at the hearing.

*208¶ 215. On April 16, 2002, the Board issued its final decision and order, concluding, "[T]he appellant was not disabled within the requirements of the ICI contract after April 30, 1997." In its Findings of Fact, the Board included statements made by Dr. Whiffen and Dr. Lemon that concluded that Gehin could work with restrictions. The Board relied on these written medical opinions in reaching its conclusion. The Board explained that "UWG and the DETF reasonably accepted the opinions of appellant's treating physician and of UWG's expert" over evidence presented that was favorable to Gehin.

II. CORROBORATION OF HEARSAY EVIDENCE

¶ 216. Pursuant to Wis. Stat. § 227.57(6), which governs the scope of review of this agency decision, a court "shall... set aside agency 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 in the record."1 Section 227.57(6) (emphasis added). "The test for substantial evidence is whether reasonable minds could reach the same conclusion as the agency, given the evidence in the record." Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶ 21, 273 Wis. 2d 394, 682 N.W.2d 343.

*209¶ 217. Some of our cases have called into question whether hearsay evidence2 that is uncorroborated may, by itself, constitute "substantial evidence" under Wis. Stat. § 227.57(6). See Folding Furniture Works, Inc. v. WLRB, 232 Wis. 170, 189, 285 N.W. 851 (1939); Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987); see also Wis. Admin. Code § ETF 11.12(2)(b) (providing that in a final decision of the Board, "No finding of fact may be based upon hearsay.")3 As a general matter, hearsay evidence is considered suspect because of concern regarding its reliability. See 29 Am. Jur. 2d Evidence § 658. As the very definition of hearsay makes clear, the problem with relying on a hearsay statement is that the hearsay statement may not be true. See Wis. Stat. § 908.01(3) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted").

¶ 218. The use of hearsay evidence often requires corroboration to insure its reliability. See Florida v. J.L., 529 U.S. 266, 270 (2000). 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 con-*210elude, in light of all the facts and circumstances, that the statement could be true." State v. Guerard, 2004 WI 85, ¶ 5, 273 Wis. 2d 250, 682 N.W2d 12 (citation omitted).4 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, ¶ 21.

¶ 219. This test for corroboration is flexible, as it "neither prescribes nor limits the type or source of acceptable corroboration." See Guerard, 273 Wis. 2d 250, ¶ 32. Corroboration is sufficient if it makes a fact reasonably "debatable." See id., ¶ 33. Additionally, there may be a "conflict between two distinct points of view" or the relevant evidence may "point[] in different directions," neither of which defeats corroboration. See id. And finally, corroboration does not have to be made by an independent source. See id., ¶ 34. Certain evidence can be self-corroborating.5 See id.

¶ 220. In the present case, the majority asserts that the written report of Dr. Whiffen, who has treated Gehin since 1993, and the written report of an independent medical evaluation performed by Dr. Lemon in *2111997 are uncorroborated hearsay statements. Statements from these reports, which the Board relied upon in reaching its conclusion, were included in the Board's Findings of Fact:

10.On January 30, 1997, UWG asked Dr. Whiffen to provide an update as to Gehin's condition. Dr. Whiffen opined on February 7, 1997, that Gehin could work up to full-time with restrictions, including a need to change position every 45-60 minutes for five minutes. On March 11, 1997, Dr. Whiffen stated that Gehin could return to her former job, with restrictions.
11. Dr. Lemon examined Gehin on December 3, 1997. UWG provided him with the contractual definition for long-term benefits. Dr. Lemon concluded that Gehin did not meet the contractual long-term benefit definition stating:
Because of [low back pain] symptoms I believe that Ms. Gehin needs to be under permanent work restrictions. I believe that she is capable of working 8 hours a day where she can alternate between sitting and standing every 30 minutes. I believe that she needs to be lifting no more than 5 pounds. She also needs to avoid any stooping, bending or twisting. I believe that Ms. Gehin could easily be employed in a position such as a receptionist where she is able to stand or sit using a telephone headset for comfort. Certainly, Ms. Gehin could also do some light paperwork or computer work. I find it hard to believe that Ms. Gehin at only 53 years of age is totally unemployable.

¶ 221. While both doctors' reports are hearsay, they are not uncorroborated. First, Dr. Whiffen had reported that Gehin was able to work prior to the January 30, 1997 and February 7, 1997 reports relied upon by the Board. In a report dated December 9,1994, Dr. Whiffen first opined that Gehin was able to return *212to work as of "3/24/94," with no hourly restrictions but with weight, lifting and bending restrictions. He repeated that opinion in a report dated November 27, 1996.

¶ 222. Further, the record is replete with medical records in addition to the reports of Drs. Whiffen and Lemon. One such report is that of Dr. Kenneth Redlin, dated September 17, 1997. Dr. Redlin related that an August 12,1997 Functional Capacity Evaluation (FCE) indicated Gehin has an "inability to squat, lift, stand, walk or carry anything but negligible loads," but he noted that Gehin had just returned from a camping trip where she traveled by camper. He opined that the FCE's "spinal evaluation was NOT VALID." (Emphasis in original.) He further noted that an independent medical exam done in 1994 did not indicate employment limitations. From this, he concluded that the FCE done on August 12, 1997 may not be reliable, and he recommended a new independent medical examination.

¶ 223. The reports of Dr. Whiffen, Dr. Lemon and Dr. Redlin corroborate one another under the standards we set in Guerard because they show that the opinions in each report "could be true." Guerard, 273 Wis. 2d 250, ¶ 5. First, the records from Dr. Whiffen date back to 1992; he was her treating physician. Second, all three doctors focus on Gehin's complaints about back pain and conclude that she could work, notwithstanding her complaints. Third, Dr. Lemon's report is written in response to a request that he render his opinion of Gehin's condition in light of the definition of "totally disabled" in the ICI contract, which definition is given to him and forms the framework for his opinion. And fourth, the reports of Drs. Whiffen and Lemon are self-corroborating, as well as corroborating each other. They were prepared independently, but they repeat the *213same medical facts and draw the same conclusion about Gehin's claimed total disability. See id., ¶ 34.

¶ 224. Furthermore, Gehin, herself, testified sufficient to show that the opinions of Drs. Whiffen and Lemon could he true, in that she testified about her on-the-joh training program at MMHI. She said that she was able to perform clerical tasks, such as typing, working on a computer, sorting mail, filing, and running errands, as well as receptionist duties, using a headset that allowed to her stand and walk while she answered the phone. She testified that she regularly took rests while doing these tasks. .

¶ 225. Gehin explained that she missed a certain number of days of this on-the-job training or left early, in part due to pain, but also because she was attending classes at a local technical college, had foot surgery and a hysterectomy, and had "allergenic" episodes. A letter from Gehin's supervisor stated that she generally worked 24-30 hours a week. However, the record also includes a handwritten statement signed by Gehin relating that she "leave[s] for on the job training at 7:15 a.m. till 4:30 Monday thru Friday at MMHI rest when I get home." That is a full-time work schedule.

¶ 226. 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. Majority op., ¶ 3.6 It also makes multiple conclusory statements that the reports of Drs. Whiffen and Lemon were not cor*214roborated. See e.g., majority op., ¶¶ 8, 45, 47, 48. However, a lack of corroboration cannot be assumed because corroboration is an issue in this case.

¶ 227. Additionally, 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. As we explained in Folding Furniture,

Hearsay may doubtless be received, if corroborative of other evidence or otherwise of such nature as to have some reasonable bearing on a fact for determination. ... [N]on-legal evidence to be admissible must have some substantial probative force and not be a mere opinion except in fields where the opinion of experts is proper for consideration and the person giving it is shown to have some special knowledge reasonably entitling his opinion to some weight.

Folding Furniture, 232 Wis. at 188 (emphasis added). Accordingly, for the reasons I have set out above, I conclude that reasonable minds could reach the conclusion that Gehin was not "totally disabled" as defined in the ICI contract in reliance on the opinions and evaluations of Dr. Whiffen and Dr. Lemon. In my view, those opinions and evaluations constitute "substantial evidence" under Wis. Stat. § 227.57(6) because they are corroborated and are reliable evidence in their own right.

*215III. CONCLUSION

¶ 228. In sum, I would not reach the question of whether uncorroborated hearsay constitutes substantial evidence because the hearsay evidence here was corroborated and constituted "substantial evidence" under Wis. Stat. § 227.57(6).

¶ 229. Therefore, I would affirm the court of appeals, and I respectfully dissent from the majority opinion.

¶ 230. I am authorized to state that Justices JON E WILCOX and DAVID T. PROSSER join this dissent.

Wisconsin Stat. § 227.57(6) states:

If the agency's action depends on any fact found by the agency in a contested case proceeding, 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 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 in the record.

Hearsay evidence is admissible. See Wis. Stat. § 227.45(1) (providing that "an agency or hearing examiner shall not be bound by common law or statutory rules of evidence"). The issue here is what role hearsay evidence can play in establishing substantial evidence.

The majority opinion interprets this rule as proscribing only hearsay that is not corroborated, and it uses Mr. Miller's hearsay report in its opinion after asserting that it is corroborated. Majority op., ¶ 34.

State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W2d 12, is based on an interpretation of Wis. Stat. § 908.045(4) and the types of corroboration sufficient to permit the admission of hearsay statements under that section of the statutes, in the face of in-court testimony by the victim. See also Schipper v. Schipper, 46 Wis. 2d 303, 174 N.W.2d 474 (1970) (discussing the corroboration that was once required in order to find grounds for divorce), overruled in part on other grounds by O'Connor v. O'Connor, 48 Wis. 2d 535, 180 N.W.2d 735 (1970).

In Guerard, it was explained that when facts are repeated in substantially the same form, self-corroboration may occur. Guerard, 273 Wis. 2d 250, ¶ 34.

The majority opinion states, "The following issue is presented: Does uncorroborated written hearsay evidence alone (that is controverted by in-person testimony) constitute substantial evidence to support the Group Insurance Board's fac*214tual findings, which in turn form the basis for its conclusion of law, i.e., that the claimant's benefits should be terminated as of April 30, 1997?"