Evans v. State Compensation Director

CalhouN, Judge,

dissenting:

Respectfully I dissent from the Court’s decision as expressed in the majority opinion. My dissent relates to the matters dealt with in the first, second and third points of the syllabus. I agree with that portion of the decision which is summarized in the fourth point of the syllabus.

It is difficult for me to conceive of a weaker case factually than that in behalf of the claimant in this case on the question of causal connection between his former employment and his disability. It is not sufficient that medical testimony may establish that the claimant’s disability may have resulted from a trauma. There must be some reasonable showing that the alleged trauma was caused during the course of and as a result of the employment.

Both the commissioner and the appeal board found that proof of causation was inadequate. I believe we should assume that the commissioner and members of the appeal board are fully as solicitous of the plight of injured workmen and as competent to make factual determinations as are the members of this Court. Reason dictates that we should give due respect to their factual findings in the light of their experience in making such determinations.

Not only does reason dictate that we should respect the factual findings of the commissioner and particularly of the appeal board, especially where, as in this case, the findings *171 are so abundantly supported by the proof; but we should remain mindful of the fact that a legal duty to do so is enjoined upon us by Code, 1931, 23-5-4a, as amended, and by innumerable prior decisions of this Court. We should not merely give lip service to the duty imposed upon us by law in this respect, whether we are reviewing a finding in favor of a claimant or one adverse to him.

The Court has consistently held that the liberality rule must be respected and adhered to but that it can never be regarded as an adequate substitute for reasonable proof.

It is quite true that Code, 1931, 23-1-15, provides that the commissioner “shall not be bound by the usual common law or statutory rules of evidence.” The Court has held that this statute applies also to proceedings before the appeal board. Hayes v. State Compensation Director et al., 149 W. Va. 220 , 140 S. E. 2d 443, 445 . In the light of the statute referred to immediately above, the Court has held that hearsay testimony may be considered, along with other proof, in workmen’s compensation cases. Nevertheless, the Court recently reiterated a proposition, hitherto regarded as sound, as follows: “It has been repeatedly held that an award of compensation cannot be made on hearsay alone.” Hoff v. State Compensation Commissioner et al., 148 W. Va. 33, 36 , 132 S. E. 2d 772, 775 . See also Machala v. State Compensation Commissioner, 109 W. Va. 413 , 155 S. E. 169 .

In my judgment there is not a scintilla of direct testimony in this case tending to any appreciable degree to prove a causal relationship between any disability the claimant may have and his former employment. All testimony in the case tending even remotely to establish that essential element is hearsay of the rankest sort and self-serving in nature.

The majority opinion seems to imply that if hearsay testimony comes into the case without objection, it thereby, in some mysterious way, becomes clothed with a credibility or trustworthiness which otherwise would not attach to it. Hearsay testimony is admissible in a workmen’s compensation case but, in my judgment, it must be weighed in the light of the legally recognized inherent weakness and un *172 reliability of hearsay testimony. It still remains hearsay testimony and, though proper to be considered, it remains fraught with the inherent weakness universally attached to such testimony. I apprehend that this is the reason this Court has held that hearsay evidence may be considered merely “in connection with competent and sufficient corroborating evidence.” Machala v. State Compensation Commissioner, 109 W. Va. 413 , pt. 1 syl., 155 S. E. 169 . While admissible, its nature dilutes its weight. Certainly nobody would contend that hearsay testimony is entitled to the same weight as direct testimony. “There may be cases when hearsay evidence may work injustice. Such evidence under our rule must sustain the acid test of its credibility when tested by the surrounding circumstances.” Machala V. State Compensation Commissioner, 109 W. Va. 413, 416 , 155 S. E. 169, 170 . “Of course, the weight of hearsay evidence is minimized by the same inherent weaknesses which are grounds for its exclusion when proper objection is made.” 20 Am. Jur., Evidence, Section 452, page 402. To the same effect, see 88 C.J.S., Trial, Section 153, page 299. To the extent that the majority opinion implies, if it does, that hearsay testimony is strengthened and its inherent unreliability removed merely because no objection to its admissibility was made before the commissioner, I respectfully disagree. When hearsay testimony reaches the appeal board or this Court in a workmen’s compensation case, I do not understand that the weight to be accorded to it depends upon whether objection to it was or was not made before the commissioner.

Cases cited in the majority opinion for the proposition that testimony which otherwise would be inadmissible is proper if admitted without objection are, in my opinion, wholly inapposite. First, they involved trial court cases rather than workmen’s compensation cases. It is difficult for me to comprehend the force of the majority opinion to the extent that, on one hand, it recognizes the admissibility of hearsay testimony before the commissioner, and, on the other hand, seems to hold that, for some reason not clear to me, added weight must be accorded to such testimony if no objection *173 was made to it, when offered before the commissioner, on ■the ground that, as hearsay, it was improper. Does this imply that the commissioner has the legal right to rule on the admissibility of hearsay testimony and to exclude it, so that the appeal hoard and this Court would be deprived of the benefit of it?

For the proposition stated in the first point of the syllabus, three cases are cited, all involving cases arising in trial courts. In Magruder v. Hagen-Ratcliff & Co., 131 W. Va. 679 , 50 S. E. 2d 488 , it is stated in the body of the opinion that hearsay testimony admitted without objection in a jury trial may be considered as evidence in the case. That adds nothing to the force of the statute dealing with admissibility of evidence before the commissioner. The Court did not undertake to state what weight should be given to such evidence. Newberry v. Watts, 116 Va. 730 , 82 S. E. 703 , is to the same effect. In Gutshall v. Hamilton et al., 134 Va. 416 , 114 S. E. 595 , cited in the majority opinion, the Court held, in the fourth point of the syllabus, that, in an ejectment action tried by a jury, opinion evidence of a surveyor as to the location of the defendant’s lands, admitted without objection, “had no probative value.”

I can understand that if a witness were disqualified merely by the Dead Man’s Statute, or because of the husband-wife relationship, and if, without objection, such witness were permitted to give relevant testimony based on personal knowledge, such testimony might be accorded the same weight to which it would be entitled if the witness were not disqualified. Such testimony would not be inherently unreliable, as hearsay testimony is universally recognized to be. Testimony admitted under exceptions to the hearsay rule is admitted because the circumstances supply the element of credibility or trustworthiness, as, for instance, in case of spontaneous exclamations or admissions against interest. But purely hearsay testimony is universally regarded in law as inherently unreliable, and, in my judgment, such unreliability is enhanced in this case by the fact that the testimony is not only hearsay but also self-serving in nature.

*174 The claimant’s wife testified that he told his foreman by telephone that he had been injured while at work and that he would not report to work next day. The majority opinion states that the failure of the employer to call the foreman as a witness “justifies a presumption that this evidence is true.” Does this imply that there was thereby created a presumption that the claimant received an injury during the course of and as a result of his employment? If so, I respectfully disagree. If the foreman had testified, he could only have denied or affirmed that such report was made to him by telephone. The self-serving, hearsay element remains in any event.

Finally, I am troubled because the majority opinion may be construed to hold that any statement made by a patient to a physician is admissible as an exception to the hearsay rule. I understand that the exception to the hearsay rule, if it be truly such, arising from statements made by a patient to his physician for purposes of diagnosis and treatment, is quite narrow in scope. If the rule were otherwise, the patient could completely circumvent and wholly destroy the hearsay rule by relaying hearsay evidence to the trier of fact through the medium of some physician of his own selection.

Innumberable cases from appellate courts throughout the land are cited for the following summarization made in connection with an annotation appearing in 67 A.L.R. at page 25: “Statements by an injured person as to the cause of the injury, and the circumstances attending the accident, made to a physician so long thereafter as not to be part of the res gestae, are not admissible, since they are a narration of a past event.” (Italics supplied.) In connection with an annotation of the same subject, numerous additional cases are listed in 130 A.L.R. at page 983.

“* * * Only such statements, however, as are made for the purpose of securing, and which are necessary to secure, proper diagnosis and treatment are admissible.

“Narrative statements to a physician are to be rejected where they relate to facts not connected with *175 diagnosis and treatment, such as the cause of an illness or injury, * * 31A C. J. S., Evidence, Section 246b, pages 655-56.

For reasons stated, I am unable to agree that the factual finding made by the appeal board is clearly wrong. On the contrary, I believe it is clearly right; and I would affirm the action of the appeal board in denying the claim.