Walker v. Rothschild International Stevedoring Co.

HUFSTEDLER, Circuit Judge

(dissenting):

I cannot agree with the majority that substantial evidence in the record considered as a whole supports the Board’s disallowance of benefits to the petitioner. We must be mindful that the Supreme Court requires us to reweigh the evidence in these cases; we cannot simply apply a substantial evidence test. (Universal Camera Corp. v. N. L. R. B. (1951) 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 .) 1

The only evidence that tends to support the Board’s determination that Walker was not disabled was the testimony of three doctors, Levitt, Kimball and Anderson, that none of them could find adequate objective findings upon which to base a disability opinion. 2 When this testimony is placed in context, however, the significance of the lack of objective findings is dissipated.

Common experience demonstrates that soft tissue injuries in the back cause pain, and disability even when objective findings are marginal and, on occasion, even nonexistent. It is, of course, always possible that Walker has some compensation neurosis; but if he does, that neurosis is compensable as well. There is no indication whatever in the record that this man who worked as a longshoreman for *1141 many years was malingering or lying, or that he did not have the desire to work that he expressed under oath. Perhaps Walker could have fooled one doctor, but I seriously doubt that he could have fooled three (Behrans, Cooper, and Gray).

Dr. Levitt had certified that Walker was disabled; he never withdrew that certification. Indeed, in his report dated August 31, 1970 (only two months before Walker’s benefit payments were-stopped), Levitt indicated that he did not know when Walker would be likely to return to work. Levitt did not discharge Walker; rather, he referred him to other doctors for treatment because he did not know what to do for him. At the time he gave the “no objective findings” testimony, Dr. Levitt had not treated Walker for two and one half years. Dr. Kimball did not testify that there were no objective findings. He testified that his disability “would not be more than one per cent.” Moreover, Dr. Kimball was not a treating doctor and his conclusions were based upon a perfunctory examination. On cross-examination, it also became clear that Kimball had not taken into account the character of the work performed by longshoremen. Finally, Kim-ball admitted that “it’s possible [Walker] pulled a muscle and developed some fibrosis in the area accounting for resistant symptoms.” Dr. Anderson based his conclusions on a one-day examination of Walker. Although he found no atrophy of muscle, he did find a “rather profound” weakness in the upper arm. He also admitted that he “cannot specifically tell you whether or not he is able to work.”

I turn to the evidence supporting Walker’s claim of disability. Dr. Behrans, who had been treating Walker since 1972, testified that she had observed muscle spasms on both the right and the left sides of Walker’s back and further that she had noticed splinting of his back muscles when he moved. She concluded that Walker was suffering from a myofascial sprain or strain, an injury to the soft tissue of the back. Soon after beginning treatment, she took Walker off the muscle relaxants and pain medication prescribed by an earlier physician; as a result, when she put Walker through passive motion tests, assisting him as he moved his muscles through certain positions, he experienced substantial pain and increased muscle spasms. Behrans concluded that the injury was probably so severe that Walker would have trouble moving his muscles by himself as required in his work as a stevedore. While hesitating to apply a percentile rating system because of its arbitrary nature, Behrans indicated that she judged Walker’s disability to be 50 percent; she added, however, that Walker seemed to be improving somewhat under her care.

Dr. Cooper, who treated Walker beginning in October 1971, had repeatedly expressed the view that Walker suffered from sprain and strain of muscles and ligaments in his back and from fibromyositis involving the right rhomboid muscle. Contrary to the finding of the administrative law judge, Cooper (like Behrans) observed muscle spasms. Cooper expressed his judgment that Walker was at least partially disabled (1) in an attending physician’s report dated October 11, 1971 and (2) in a letter dated June 5, 1972. (While only one of these statements is referred to in the findings of fact, seemingly both documents were included in the file considered as part of the record by the administrative law judge in April 1973.)

Finally, there is Walker himself, who indicated that he had been working as a longshoreman for twelve years at the time of his accident. He described his pain and his reactions to treatment. He also testified that he sincerely desired to return to work.

Of course, an administrative hearing officer may disbelieve testimony of medical experts, but he cannot, consistently with his duty, ignore or fail to evaluate the full range of medical evidence given both at the hearing and in the written record. He disregarded the evidence supplied by Walker’s own physi *1142 cians in deeming it to be less reliable in principle than the information supplied by employer-approved panel doctors. The discrepancy between Levitt’s testimony and his earlier records is nowhere reflected in the findings of fact; nor was consideration given to the fact that Walker’s treating physicians were more intimately acquainted with his condition than were one-time consultants like Drs. Kimball and Anderson. The administrative law judge seems to have gone out of his way to discount the observations of Dr. Behrans, who had seen Walker most recently and had been most successful in treating his injury. Moreover, the administrative law judge did not evidence an understanding of the remedial purpose of the Longshoremen’s and Harbor Workers’ Compensation Act.

The Fifth Circuit has ruled that, in implementing the generous spirit of concern of Congressional policy, all doubtful questions of fact are to be resolved in favor of the injured employee and that the standard of proof to be applied by the hearing examiner in such proceedings is to be somewhat less stringent than a preponderance of the evidence. (Strachan Shipping Co. v. Shea (5th Cir. 1969), 406 F.2d 521, 522 .)

In my view, the Board recognized verbally, but did not apply, the appropriate standard of review. It simply isolated the few items of testimony that conceivably could have supported the administrative law judge’s findings, without evaluating the context in which those opinions were given or the other evidence in the record. That approach was flatly' rejected in Universal Camera Corp., supra. The fact that “irrationality” is now an alternative basis for overturning a hearing officer’s determination (e. g., O’Keefee v. Smith, Hinchman & Grylls Ass’n, Inc. (1965), 380 U.S. 359 , 85 S.Ct. 1012 , 13 L.Ed.2d 895 ) in no way dilutes the requirement to evaluate all the evidence.

The Board’s failure to mention either Dr. Behran’s testimony or the June 1972 letter of Dr. Cooper indicating his diagnosis of Walker’s disability suggests strongly that the Board erred in carrying out its reviewing function.

In short, the Board’s decision is against the great weight of the evidence, the only testimony that can be cited as supporting the Board’s conclusion is insubstantial, and when that evidence is viewed in the light of the whole record, any apparent support for the nondisability finding vanishes.

I would reverse and remand.

. As Mr. Justice Frankfurter, speaking for the Court, observed:

“Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. ...” ( 340 U.S. at 487-88 , 71 S.Ct. at 464 .)

“The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” ( 340 U.S. at 490 , 71 S.Ct. at 466 .)

. Dr. Levitt said there were “no objective findings”; Dr. Kimball said he turned up “little objective findings” of disability and Dr. Anderson testified that he could not ascertain “why [Walker] claims to be disabled.”