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Pellar v Foster Medical Corporation 16.50

Section 33

PROCEDURE, Due Process, Fair hearing, Referee bias, Board Rule 207

CITE AS: Pellar v Foster Medical Corporation, Wayne Circuit Court, No. 86-616117-AE (February 10, 1987)

Appeal pending: No

Claimant: Sharon Pellar

Employer: Foster Medical Corporation

Docket No. B85-10837-101190W

CIRCUIT COURT HOLDING: "[T]he referee failed in his duty to develop the evidence and assist the claimant, and indeed conducted the hearing showing possible bias on the part of the referee against the claimant. "

FACTS: The claimant appeared at the hearing without a representative or witnesses. The employer was represented at the hearing by the claimant's former supervisor and the employer's attorney. The majority of the hearing, 36 of 44 transcript pages, consisted of the Referee's examination of the claimant. The claimant came prepared to the hearing with notes. However, the Referee refused to allow the claimant to use her notes to verify dates as to specific occurrences. Nevertheless, the Referee criticized the claimant's failure to testify about specific dates or persons. The Referee frequently interrupted the claimant to ask her about some area other than that to which she was testifying or to cut off an answer. The Referee forbade her from developing an area of inquiry that she thought important and directed her to only answer his questions. The Referee took an active role in attempting to impeach the claimant's testimony without giving similar treatment to the employer's witness. The Referee openly expressed his disbelief of the claimant's testimony to the claimant. The Referee affirmed the redetermination holding the claimant disqualified under Section 29(1)(a).

DECISION: Remanded to a different Referee for a new hearing and new decision.

RATIONALE: Administrative Rule 207 requires the Referee to secure such competent evidence as he deems necessary to arrive at a fair decision. "[I]n the situation of an unrepresented claimant, due process concerns impose an affirmative duty on the hearing examiner to develop evidence." The Referee has a "duty to develop facts which not only would tend to result in a denial of the claim but also those facts which are supportive of a claim for benefits." The Referee is required to be "unbiased and conduct the proceedings in an unbiased manner." And "in developing evidence the referee must maintain and give the appearance of maintaining a scrupulous neutrality."


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