Wisconsin Lawyer
Vol. 78, No. 9, September 2005

Hearsay in Administrative Hearings

In Gehin v. Wisconsin Group Insurance Board, the Wisconsin Supreme Court did not strictly adhere to the legal residuum rule, which prohibits administrative hearing bodies from basing findings of fact solely on uncorroborated hearsay. While Gehin provides grounds for exceptions to the rule and addresses several satellite issues, it is unclear when corroboration is required and when it is not.

• Rules of Evidence Publications Keep You Informed

by Sean P. Maloney

The Wisconsin Supreme Court issued an important decision on Feb. 23, 2005, concerning hearsay¹ evidence in administrative hearings. In Gehin v. Wisconsin Group Insurance Board, the court addressed the legal residuum rule, also known as the substantial evidence rule.² The legal residuum rule states that administrative hearing bodies should never ground findings of fact solely on uncorroborated hearsay because uncorroborated hearsay is not "substantial evidence."³

Although hearsay is admissible in administrative hearings under Wis. Stat. chapter 227, Wisconsin law also requires that findings of fact be supported by substantial evidence in the record.⁴ There has been considerable confusion and uncertainty about how strictly the legal residuum rule applies in Wisconsin.⁵ This article analyzes the Gehin decision and includes a review of the issues the court addressed, an overview of the underlying facts and evidence, and an analysis of the impact and practical aspects of the decision.

Basic Facts of Gehin

On May 15, 1992, Luann Gehin injured her back while working as a housekeeper at the U.W. Hospital. She experienced gradually worsening pain and went on medical leave. Her last day of work was April 16, 1993. In April 1993 she filed a claim for Income Continuation Insurance (ICI) benefits. The administrator of the ICI program determined that Gehin's disability began on May 3, 1993, and she was approved for ICI benefits in June 1993. In early May 1997, however, the administrator determined that Gehin no longer met the disability criteria for ICI benefits and that the benefits were not payable beyond April 30, 1997. Gehin appealed to the Group Insurance Board (the Board), which held an evidentiary hearing on Oct. 2, 2001. The Board upheld the discontinuation of ICI benefits. It based its findings of fact on the written medical reports of three physicians (Dr. John Whiffen, Dr. Kenneth Redlin, and Dr. Richard Lemon), none of whom testified at the hearing. Testimony by Gehin and another physician (Dr. William Shannon) at the hearing "consistently disagreed" with the written medical reports. A written report from a physical therapist (PT) (Michael Miller), who did not testify, also disagreed with the written medical reports. Gehin and Shannon corroborated the PT report.⁶

Analysis

The Gehin court engaged in an extensive and detailed analysis of the facts and evidence.⁷ The court's analysis establishes a picture that is almost entirely favorable to Gehin and entirely unfavorable to the Board.⁸

The court's description of the facts and evidence, as detailed in the endnotes to this article, establishes a factual case that cries out for a remedy for Gehin. The court provided a remedy by holding that the written hearsay medical reports that the Board relied on to find Gehin not disabled were not substantial evidence. The facts are crucial to an understanding of Gehin because the court indicated, in several places, that its ruling is specific to the facts.⁹

That the Gehin decision is exceptionally fact specific also is reflected in the very narrow way in which the court framed both the issue and the court's conclusion:

• "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 factual 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?"¹⁰
• "We conclude that the uncorroborated written hearsay medical reports alone (that are controverted by in-person testimony) did not constitute substantial evidence to support the Group Insurance Board's factual findings and decision to terminate the claimant's benefits."¹¹
• "For the reasons stated, we conclude that the uncorroborated written hearsay medical reports alone that were controverted by in-person testimony did not constitute substantial evidence to support the Group Insurance Board's Findings of Fact and decision to terminate the claimant's benefits."¹²

Gehin might initially be regarded by some as an endorsement of the legal residuum rule.¹³ However, for many reasons, it is not.

The Gehin opinion is strongly wedded to the facts of the case and this relationship provides a solid basis to argue that the legal residuum rule does not apply to hearsay (and particularly to written hearsay medical reports) in cases with facts less extreme than those in Gehin - especially if the hearsay is not controverted by in-person testimony. Further, to apply the legal residuum rule, it is necessary to establish only that a finding of fact is based solely on uncorroborated hearsay. The Gehin court did not need to engage in the extensive factual analysis that it did. The fact that it did is further evidence that Gehin cannot be regarded as general endorsement of the legal residuum rule.

More importantly, a close reading reveals that the rule applied in Gehin is not the legal residuum rule. The legal residuum rule states that administrative hearing bodies should never base findings of fact solely on uncorroborated hearsay.¹⁴ The court could have provided the remedy it did simply by strictly applying the legal residuum rule.¹⁵ It did not. Instead, the Gehin court provided a remedy by concluding that uncorroborated written hearsay medical reports alone that are controverted by in-person testimony do not constitute substantial evidence.¹⁶ The legal residuum rule does not require that the hearsay be written or that it be controverted by in-person testimony. Because the court did not directly apply the legal residuum rule - when it easily could have - Gehin cannot be regarded as endorsing that rule.

The fact that the Gehin court applied a more limited rule, not the legal residuum rule itself, raises a host of important unanswered questions. Does Gehin signal that the legal residuum rule is not to be strictly applied and adhered to in Wisconsin? At first blush this seems unlikely because the court twice stated that it saw no reason to "deviate in the instant case" from the legal residuum rule.¹⁷ However, this implies that the court may deviate from the legal residuum rule in other cases. Moreover, as has already been explained, Gehin itself deviates from the legal residuum rule when it fails to strictly apply it. The Gehin court confirmed in two ways that the opinion is not an endorsement of the legal residuum rule.

To begin with, the opinion specifically states:

• "This decision should not be read to require corroboration by non-hearsay evidence in all instances."¹⁸
• "Corroboration of hearsay is not always required in administrative proceedings."¹⁹

These two statements are clear - but they are flatly inconsistent with the legal residuum rule. Given these statements, any arguable endorsement by Gehin of the legal residuum rule is very loose at best, which is especially true because these statements are not necessary to the result. The Gehin court went out of its way to make these statements.

Additionally, the court used a weighing methodology in the course of determining that "the Group Insurance Board should not have relied solely on the hearsay evidence ... in the instant case."²⁰ A weighing methodology is not consistent with the legal residuum rule.

As a result of Gehin, the legal residuum rule is not to be strictly applied in Wisconsin, because, according to the court, corroboration of hearsay is not always required in administrative proceedings in Wisconsin.²¹ However, Gehin does not indicate when corroboration is required and when it is not. The court's opinion in Gehin suggests that a weighing or balancing test is to be used to make this determination, taking into account such factors as the nature of the hearsay, the importance to the proceeding's outcome of the facts sought to be proved by introduction of the hearsay reports, considerations of economy, the evidence opposing the hearsay reports, the lack of corroborative evidence supporting the hearsay reports, the failure to call witnesses to testify, and the outcome for each party.²²

The suggestion that factors be weighed when determining if corroboration is necessary makes sense, but it raises troubling questions. For one thing, the weighing methodology appears to completely displace the legal residuum rule. If a weighing method is to be used to determine when corroboration is necessary, then of what use is the legal residuum rule? Why have the legal residuum rule at all? Additionally, Wis. Stat. chapter 227 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."²³ What distinction is there, if any, between the weighing method suggested by Gehin and the type of weighing of evidence already done by administrative hearing bodies? If none, then a court could not substitute its judgment for that of the administrative hearing body if the judgment relates to any disputed finding of fact. On the other hand, if a weighing methodology is not to be used, then the original problem remains: how to determine when corroboration is required and when it is not.

Finally, it might be that Gehin should be read in a very limited way to mean that corroboration of hearsay is not required in administrative proceedings only in the case of medical reports that are not controverted by in-person testimony and that have indicia of reliability. Gehin never states this (although a very strict reading of the stated conclusion in Gehin would limit Gehin to written medical reports).²⁴ However, this interpretation would be consistent with the court's statements that medical reports "arguably have indicia of reliability and therefore seem to have probative force" and "medical reports generally may be viewed as reliable."²⁵ If Gehin is to be read in this limited way, then why are written medical reports the only exception to the legal residuum rule? If it is because written medical reports have "indicia of reliability," then other types of hearsay that have the same or similar "indicia of reliability" also should be exceptions to the legal residuum rule. But if this is conceded, then what is left of the legal residuum rule? A special exception should not be created for written medical reports without also creating the same exception for other similar types of hearsay and, in the process, abandoning a strict application of the legal residuum rule (as Gehin has already done).

Gehin leaves many questions unanswered and raises many new questions. However, one thing is probable: post-Gehin, the legal residuum rule is not to be applied to all uncorroborated hearsay. At best the legal residuum rule is now fuzzy, loosely applied, and subject to exceptions.

Satellite Issues Addressed by Gehin

To the extent that the legal residuum rule applies in Wisconsin, Gehin provides important guidance concerning eight related issues.

First, Gehin affirms that uncorroborated hearsay is admissible as evidence in administrative proceedings.²⁶ This affirmation is no surprise because, as noted above, hearsay is admissible in administrative proceedings under chapter 227. The Gehin court pointedly stated, however, that "[p]roperly admitted evidence may not necessarily constitute substantial evidence."²⁷ This statement, of course, is precisely what gives rise to the uncorroborated hearsay issue.

Second, Gehin clarifies that administrative hearing bodies may utilize hearsay evidence. The legal residuum rule only prohibits an administrative hearing body from relying solely on uncorroborated hearsay in reaching its decision.²⁸

Third, Gehin establishes that, at least in the Gehin case, a variant of the legal residuum rule applied even though the claimant could have subpoenaed the author of the hearsay report to controvert or challenge the written report.²⁹

Fourth, Gehin clarifies that the legal residuum rule may apply even to evidence that is admitted as an exception to the hearsay rule.³⁰ The court noted that this application of the rule creates a more restrictive rule for administrative hearings than for judicial proceedings because a decision in a judicial proceeding may be based on admissible hearsay. The court justified this distinction by noting that in administrative proceedings people are often not represented by counsel, decision makers "are often not attorneys,"³¹ and "[r]equiring decision-makers to determine whether hearsay evidence falls within a hearsay exception defeats the reasons for relaxed standards for the admissibility of evidence in administrative agencies."³² The effect of the legal residuum rule cannot be avoided by showing that hearsay falls within an exception.

Fifth, the Gehin court stated that "in the present case hearsay evidence cannot corroborate hearsay evidence." It is not clear how broadly this rule will apply because the court qualified it by stating "in the present case." However, the reason the court gave for this rule suggests that the court intended a broad application: "If the agency is permitted to bootstrap uncorroborated hearsay with other uncorroborated hearsay, the result would be the evisceration of the requirement that there be corroboration of hearsay in order for the hearsay evidence to form the basis of an agency's finding of fact."³³

Sixth, although the Gehin court did not define what constitutes "corroboration" for purposes of the legal residuum rule, it did state that "[t]he present case is not governed by the corroboration requirements set forth in cases involving recantation or a statement against penal interest."³⁴ The court discussed the corroboration requirements in cases involving recantation and a statement against penal interest.³⁵ Also, the concurring opinion in Gehin stated: "[C]orroboration can be introduced in a number of ways. Claimants who have a medical condition can testify as to that condition. Other witnesses can be called as well. Testimonial evidence would provide the corroboration necessary to allow a hearing examiner to consider hearsay medical reports concerning the condition."³⁶

Seventh, Gehin clarifies that the legal residuum rule "does not prevent parties from stipulating to factual findings." The parties may stipulate "to the submission and reliance upon the contents of written hearsay reports. The parties may also agree that the agency may base its findings of fact solely on uncorroborated hearsay."³⁷ In such cases corroboration of hearsay is not required.

Eighth, the Gehin court raised, but did not decide, the issue of whether a failure to object to the use of uncorroborated hearsay is a waiver of the right to object.³⁸ "We need not decide whether the claimant waived her right in the present case to challenge the bases of the Findings of Fact. We address the issue presented here because the parties have had an opportunity to brief the substantial evidence issue and because the application of the legal rule ... presents an issue of importance."³⁹ Before Gehin there was reason to believe that an objection might be required in order to avoid waiver.⁴⁰ Now, after Gehin, whether an objection is required appears to be a more open question.

Practical Aspects of the Legal Residuum Rule

The administrative hearing process covers a very broad area of the law in Wisconsin, including the licensing of dams, the licensing of nursing homes, the placement of a person's name on the caregiver misconduct registry due to allegations of misconduct, and food stamp and Medicaid disputes.⁴¹ Many of the disputes resolved by administrative hearings do not involve large amounts of money. The nongovernmental party is often of limited financial means, and often one or both parties are not represented by attorneys. For these reasons administrative hearings are designed and intended to be accessible, affordable, and understandable. This is why most evidentiary rules do not apply to such hearings.⁴²

Factual determinations in administrative hearings often are based on hearsay that has indicia of reliability but that is not corroborated in any substantial way. There is simply no way to avoid this situation if administrative hearings are to function as designed and remain accessible, affordable, and understandable. For instance, to qualify for food stamps and Medicaid, a person must satisfy income, asset, and sometimes medical criteria. Whether claimants have met these criteria often are issues at administrative hearings, and such issues most often are resolved based on uncorroborated hearsay documents that have indicia of reliability, such as paycheck stubs, letters from employers, state computer print-outs, and reports from medical professionals.

Such documents can sometimes, but not always, be corroborated by the testimony of the food stamp or Medicaid applicant. Sometimes applicants do not appear at the administrative hearing but send a friend or relative instead. Sometimes applicants do not recall what they earned because they have worked numerous temporary jobs over a short time span; sometimes they have no understanding of their own medical condition; sometimes an applicant's testimony is inconsistent with the documentary evidence.

To require meaningful corroboration in such cases would change the administrative hearing process from accessible, affordable, and understandable to inaccessible, unaffordable, and complex.⁴³ The Gehin court acknowledged this: "We recognize the importance of allowing claimants to present their position as simply and inexpensively as possible, including by means of written medical reports without having to present the testimony of the author of the reports. This decision should not be read to require corroboration by non-hearsay evidence in all instances."⁴⁴ The need to keep administrative hearings accessible, affordable, and understandable is undoubtedly why the Gehin court did not strictly apply the legal residuum rule and, instead, provided ample grounds to argue for exceptions to it.

Conclusion

The legal residuum rule prohibits administrative hearing bodies from basing findings of fact solely on uncorroborated hearsay. The Gehin court did not strictly adhere to the legal residuum rule, provided grounds for exceptions to it, and addressed several satellite issues surrounding it. Post Gehin, corroboration of hearsay is not always required, but it is not clear when corroboration is required and when it is not. As a practical matter, strict adherence to the legal residuum rule is not possible if administrative hearings are to remain accessible, affordable, and understandable.

Sean P. Maloney, Stanford 1987, has been an administrative law judge for the state of Wisconsin since 1995 and conducts hundreds of administrative hearings every year concerning many government programs. He is a member of the bar in California, Hawaii, Washington, D.C., Wisconsin, and various federal courts. He holds an M.A. in philosophy from U.W.-Madison. The views offered here are the author's and do not necessarily represent the views of any other person or organization. He thanks Peter Anderson and the Wisconsin Lawyer Editorial Board for their valuable suggestions on drafts of this article.

Endnotes

¹"'Hearsay' is 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." Wis. Stat. § 908.01(3). Some statements are defined not to be hearsay even though they otherwise would be. See, e.g., Wis. Stat. § 908.01(4). All citations to the Wisconsin Statutes are to the 2003-04 edition unless specifically stated otherwise.

²Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572.

³Id. ¶¶ 53-56, 58.

⁴Wis. Stat. §§ 227.45(1), .57(6).

⁵See Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987); City of Superior v. DILHR, 84 Wis. 2d 663, 672 n.6, 267 N.W.2d 637 (1978); Outagamie County v. Town of Brooklyn, 18 Wis. 2d 303, 312 n.3, 118 N.W.2d 201 (1962); Folding Furniture Works v. Wisconsin Labor Relations Bd., 232 Wis. 170, 189, 285 N.W. 851 (1939).

⁶Gehin, 2005 WI 16, ¶¶ 12, 13, 16-21, 26-37, 278 Wis. 2d 111.

⁷More than 40 percent of the court's opinion (47 of 110 paragraphs) is devoted to a discussion and analysis of the facts and evidence. See Gehin, 2005 WI 16, ¶¶ 9-47, 71-78, 278 Wis. 2d 111. This lengthy discussion may be expected simply because Gehin deals with the substantial evidence rule.

• ⁸"The Group Insurance Board discounted and disparaged [and disregarded] Mr. Miller's evaluation, stating that `it does not appear from the record that Mr. Miller had the benefit of the contract definition [of disability].'" Gehin, 2005 WI 16, ¶¶ 20, 35, 278 Wis. 2d 111.
• "In quoting Dr. Lemon's report the Wisconsin Group Insurance Board obviously accepted Dr. Lemon's expert medical opinion that the claimant was [not] permanently disabled." Id. ¶ 22. The word "not" does not appear in the Gehin opinion at this point. This is an obvious typographical error because Dr. Lemon's report clearly concluded that Gehin was not disabled. See id. ¶¶ 21, 25, 32, 37, 72, 73.
• "Dr. Lemon never rendered an opinion whether the claimant was [disabled] under the contract. Dr. Lemon remarked that he could not believe she was `totally unemployable.' This remark is not responsive or relevant to the issue of [disability] under the contract...." Id. ¶ 72.
• "Dr. Wiffen completed a form dated November 27, 1996, asking whether the patient is totally disabled. His markings are internally inconsistent." Id. ¶ 74. "[W]e do not know what definition of totally disabled Dr. Wiffen was using." Id. ¶ 75.
• "The Group Insurance Board disregarded Dr. Shannon's expert opinion testimony, stating that Dr. Shannon did not treat or examine the claimant in 1997, the relevant time period." Id. ¶ 35.
• "The Group Insurance Board for all intents and purposes ignored the claimant's own testimony about her physical ability." Id. ¶ 36.
• "The claimant thus corroborated the letter [concerning her vocational rehabilitation program at the Mendota Mental Health Institute] that she was not able to be at the job training program more than 24 to 30 hours a week (sometimes less), that she was in pain, and that she was unable to remain in one position (standing or sitting) for any length of time." Id. ¶ 40.
• "The Department of Employee Trust Funds failed to present even a single live witness to corroborate the contents of the written medical reports about the claimant's ability to work full time and their version of her physical work restrictions. The Group Insurance Board relied solely on these medical reports in its Conclusions of Law that the claimant could work full time with permanent work restrictions." Id. ¶ 42.
• "Although the Group Insurance Board calculated the minimum amount the claimant would have had to earn in the spring of 1997 [to be considered not disabled], none of its findings (and none of the evidence) states that a job was available which fit the claimant's permanent work restrictions and would enable her to earn [enough to be considered not disabled] on either a full or part time basis." Id. ¶ 43.
• "At best, the hearsay medical reports declared that the claimant is able to work full time with restrictions, namely a job in which she could alternate between sitting and standing, in which she need not lift more than 5 pounds, in which she need not do any carrying, and in which she must avoid stooping, bending or twisting. 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 Finding of Fact and its decision to terminate the claimant's benefits, are uncorroborated and in fact were contradicted by live testimony." Id. ¶ 45.
• "The claimant's testimony and witnesses presented a prima facie case that she was [disabled]." Id. ¶ 46.
• "Therefore, if the uncorroborated written hearsay medical reports are eliminated from consideration, no evidence exists in the record to support the findings that the claimant was able to work full time with the permanent physical work restrictions described by the doctors or the Board's conclusion of law that the claimant did not meet the contractual requirements [of disability]." Id. ¶ 47; see also id. ¶ 114 (Butler, J., concurring).
• ⁹"Upon analyzing the hearsay evidence and live testimony we conclude that we should not deviate in the instant case from the long-standing rule in Wisconsin that uncorroborated hearsay alone does not constitute substantial evidence." Id. ¶ 8 (emphasis added).
• "Medical reports arguably have indicia of reliability and therefore seem to have probative force; they are furnished by independent, impartial experts and are arguably admissible as exceptions to the hearsay rule.
• "Nevertheless, the reliability and probative force of the written medical reports in the present case are suspect." Id. ¶¶ 69_70 (emphasis added).
• "Weighing the nature of the doctors' responses, the importance of the facts sought to be proved by the hearsay medical reports to the outcome of the proceedings and considerations of economy; the evidence opposing the hearsay reports; the lack of any corroborative evidence supporting the hearsay reports; the failure of the Department of Employee Trust Funds to call the doctors to testify; and the outcome for each party, our conclusion that the Group Insurance Board should not have relied solely on the hearsay evidence is appropriate in the instant case." Id. ¶ 80 (emphasis added).
• "We see no reason to deviate in the instant case from the long standing rule in Wisconsin ... consistently followed for 65 years in subsequent cases that uncorroborated hearsay alone does not constitute substantial evidence in administrative proceedings. The rule balances competing concerns about administrative expediency and fundamental fairness." Id. ¶ 81 (emphasis added).
• "Even though medical reports generally may be viewed as reliable, our review of the record raises significant questions about the reliability of these controverted reports and about the need for clarification of the reports by live testimony." Id. ¶ 91 (emphasis added).

¹⁰Id. ¶ 3.

¹¹Id. ¶ 4.

¹²Id. ¶ 110.

¹³See, e.g., High Court Reaffirms "Legal Residuum Rule," 19 Wis. L.J. 9 (March 2, 2005), page 1A.

¹⁴Gehin, 2005 WI 16, ¶¶ 53-56, 58, 278 Wis. 2d 111.

¹⁵Alternatively, Gehin could have reached the same result by accepting the hearsay evidence and finding it not substantial on its face (thus avoiding the substantial evidence hearsay issue altogether). See id. ¶¶ 43, 45; see supra note 8, bullets 9 & 10.

¹⁶Gehin, 2005 WI 16, ¶¶ 4, 110, 278 Wis. 2d 111; see supra notes 10 & 11 and accompanying text.

¹⁷Gehin, 2005 WI 16, ¶¶ 8, 81, 278 Wis. 2d 111; see supra note 9, bullets 1 & 4.

¹⁸Gehin, 2005 WI 16, ¶ 103, 278 Wis. 2d 111.

¹⁹Id. ¶ 104. The court uses stipulations as one example.

²⁰Id. ¶ 80 (court engages in weighing methodology); see supra note 9, bullet 3; see also, Gehin 2005 WI16, ¶ 81 278 Wis. 2d 111(court refers to "balancing competing concerns").

²¹Gehin, 2005 WI 16, ¶¶ 103, 104, 278 Wis. 2d 111; see supra notes 18 & 19 and corresponding text.

²²Gehin, 2005 WI 16, ¶ 80, 278 Wis. 2d 111; see supra note 9, bullet 3; see also Gehin, 2005 WI 16, ¶ 81, 278 Wis. 2d 111.

²³Wis. Stat. § 227. 57(6).

²⁴See Gehin, 2005 WI 16, ¶¶ 4, 110, 278 Wis. 2d 111; see supra notes 11 & 12 and accompanying text.

²⁵Gehin, 2005 WI 16, ¶¶ 69, 91, 278 Wis. 2d 111; see supra note 9, bullets 2 & 5. The Gehin court also quoted a commentator as follows: "In effect, medical reports constitute a class exception, at least in Social Security disability cases." Gehin, 2005 WI 16, ¶ 65, 278 Wis. 2d 111.

²⁶Id. ¶¶ 49-50, 86 (citing to Wis. Stat. chapter 227).

²⁷Id. ¶ 52.

²⁸Id. ¶¶ 51, 56, 65.

²⁹Id. ¶ 84.

³⁰Id. ¶ 89.

³¹In Wisconsin this probably is not true as most decision makers (that is, hearing examiners and administrative law judges) are attorneys. In fact, the hearing examiner in Gehin was an attorney and Gehin was represented by counsel. See id. ¶ 185 (Prosser, J., dissenting).

³²Id. ¶ 90.

³³Id. ¶ 92. It is curious that at one point in Gehin the court appears to make use of oral hearsay testimony to form at least part of the corroboration for written hearsay. See id. ¶ 40.

³⁴Id. ¶ 101.

³⁵Id. ¶¶ 93-100.

³⁶Id. ¶ 113 (Butler, J., concurring).

³⁷Id. ¶ 104.

³⁸As the court noted, the objection must be to "Findings of Fact being based on uncorroborated hearsay evidence" and not to the hearsay itself. An objection "on the grounds of hearsay would have been futile." See id. ¶ 107.

³⁹Id. ¶¶ 106-109.

⁴⁰See Outagamie County, 18 Wis. 2d at 312.

⁴¹For more information on the administrative hearing process, see A Primer on Administrative Hearings, 76 Wis. Law. 7 (July 2003), <www.wisbar.org/wislawmag/2003/07> and A Primer on Miscellaneous Hearings, 76 Wis. Law. 9 (Sept. 2003), <www.wisbar.org/wislawmag/2003/09>.

⁴²Wis. Stat. § 227.45(1).

⁴³One way around this would be to require only a very low level of corroboration, but this would undercut the very purpose of the legal residuum rule and gut it of its substance.

⁴⁴Gehin, 2005 WI 16, ¶ 103, 278 Wis. 2d 111.

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