Opinion
Docket Nos. 48133, 48134.
Decided October 23, 1980. Leave to appeal applied for.
Marston, Sachs, Nunn, Kates, Kadushin O'Hare, P.C. (by Granner S. Ries), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph M. Binno, Assistant Attorney General, for defendant Second Injury Fund.
Lacey Jones (by John L. Salter), for defendants Vemco Products, Inc., and Travelers Insurance Company.
LeVasseur, Mitseff, Egan Capp, P.C. (by John P. Baril), for defendants Vemco Products, Inc., and Liberty Mutual Insurance Company.
This is an appeal by leave granted from an October 31, 1978, decision of the Worker's Compensation Appeal Board (WCAB) affirming an administrative law judge's award of total disability compensation benefits to the plaintiff but denying a new date of injury and Second Injury Fund claims to total and permanent loss of industrial use of both legs. The matter was remanded by the Supreme Court after leave was initially denied by this Court. 407 Mich. 902 (1979).
Administrative Law Judge John J. Conley heard testimony on three widely separated days, affording plaintiff an opportunity to prove her case. The inadequacy of the testimony is exceeded only by the conflicting nature of it. Quotations of testimony can be found supporting any position one cares to take. It is impossible to conceive of a case more appropriate for appellate restraint. Administrative Law Judge Conley observed the witnesses, the evidence, and lack of it. No treating physician was called or deposed. The insurance company physician saw plaintiff only once, and his testimony is not very helpful — that being a euphemistic description. Plaintiff's physician was only slightly better, admitting that he would like to have more information and see more records. Plaintiff, herself, gave conflicting answers as to the onset of her difficulties.
Judge Conley's decision was within the range of the testimony. Admittedly, there is also ample evidence to arrive at the opposite conclusion, but that is not the standard for review. The majority of the WCAB, in an excellent opinion, confirmed the hearing officer's result. If ever the admonition of article 6, § 28, of the Michigan Constitution is applicable, it is here. The appeal board's findings are conclusive in the absence of fraud. Derwinski v Eureka Tire Co, 407 Mich. 469; 286 N.W.2d 672 (1979), MCL 418.861; MSA 17.237(861). The fact that the evidence is "sparse" does not justify reversal where there is "any" evidence to support the findings. Epps v Mercy Hospital, 69 Mich. App. 1; 244 N.W.2d 340 (1976), Vermiglio v Condor Manufacturing, Inc, 91 Mich. App. 8; 282 N.W.2d 815 (1979).
Affirmed.