holding that the ALJ’s apparent error in incorrectly describing the burden of proof was harmless where the ALJ had earlier “articulated exactly the right set of standards for this case” and “had the right standard in mind when he assessed the employer’s evidence”
How later courts described this case
- holding that the ALJ’s apparent error in incorrectly describing the burden of proof was harmless where the ALJ had earlier “articulated exactly the right set of standards for this case” and “had the right standard in mind when he assessed the employer’s evidence”
- explaining that, under preponderance-of-evidence standard, “[o]ne compelling witness ... can overwhelm ten contrary witnesses or a raft of papers, if the trier of fact chooses to believe the one witness and to disbelieve the ten”
- the presumption of compensability is overcome by production rather than persuasion
- “When considering an appeal from the BRB, we evaluate the propriety of the ALJ’s underlying decision. In so doing, we ask whether the ALJ’s decision is ‘supported by substantial evidence, in accord with the law, and not irrational.’ ”
Written by the judges who cited it.
The opinion
POSNER, Chief Judge,
with whom Judges COFFEY, EASTERBROOK, and MANION join,
dissenting.
I agree that the burden of persuasion remains on the claimant, but I disagree that the administrative law judge was entitled to regard Dr. Carroll’s evidence as too insubstantial to satisfy the employer’s burden of production. The isolated passages that the administrative law judge and this court quote from Dr. Carroll’s 72-page deposition give a misleading impression of the deposition as a whole. Carroll, a highly qualified cardiologist, opined that Janich had a type of heart condition, involving potentially fatal arrhythmias, that had *820 caused his death, and that this type of arrhythmia (ventricular arrhythmia) is aggravated by neither mental stress nor physical exercise. He may be wrong, but neither the agency nor this court addresses that issue. The suggestion that Carroll’s testimony lacked specificity or authority will not persuade anyone who has read his deposition carefully.
Dr. Carroll acknowledged that since there had been no autopsy and he had not been with Janich when he died, his opinion about the cause of Janich’s death was inherently “speculative,” a word that he was using not to denote the class of evidence that a tribunal might refuse to credit, but merely to acknowledge the limitations of medical science. Had he opined with greater definitiveness, his opinion would have been suspect. Apparently no honest medical opinion in the employer’s favor would carry any weight with this administrative law judge.
Bias to one side, in dismissing Carroll’s evidence as “speculative” the administrative law judge may have committed the unpardonable sin against administrative law that we noted in Peabody Coal Co. v. Director, 165 F.3d 1126 , 1128-29 (7th Cir.1999): applying stricter standards of admissibility than the Federal Rules of Evidence, even though those rules, which are designed to prevent amateur factfinders (jurors) and generalist judges from going astray, are inapplicable to administrative agencies, which are supposed to have the kind of specialized knowledge that should enable them to consider evidence without wearing blinders.
Having acknowledged his inability to achieve metaphysical certainty, Dr. Carroll explained in great detail why he believed that it was indeed a ventricular arrhythmia — an arrhythmia which (and here he was emphatic) is not aggravated by mental or physical stress — that had caused Ja-nich’s death. If Carroll was right, Janich’s death was completely unrelated to his employment; he would have died at the same instant had he retired six months earlier. Carroll may be wrong, but it is untenable to suggest that his evidence was not “substantial.”
Much of the deposition consisted of the opposing lawyer’s describing Janich’s activities in the hours before his death in hypothetical terms and asking whether these activities could have caused Janich’s sudden death. To each of these questions Carroll answered no; only to the question whether Janich’s working 244 hours over the course of the last 38 days of his life might have been a precipitating factor in his death did he answer “I don’t know.” This is the answer on which the administrative law judge and this court fasten. But the question had been interrupted by an objection to the inclusion in the question of the term “excessive hours” (which, oddly, does not appear in the transcript of the deposition), and it 'is likely that when Dr. Carroll said “I don’t know” he was merely expressing an uncertainty about the question that had been engendered by the objection to the term “excessive hours.” Since he testified repeatedly that stress and exercise were not precipitating factors' in Janich’s death, his “I don’t know” can’t be taken to be a considered response to the lawyer’s hypothetical. It came moreover toward the end of the deposition and the lawyer had been bombarding him with lengthy hypotheticals for some time.
To trash his testimony on the basis of “speculative” and “I don’t know” is the kind of tactic that agencies use only when they are determined to reach a preordained result willy-nilly. It is almost superfluous to add that the evidence of “stress” was extraordinarily thin. Janich worked 33 of the last 38 days of his life, which (given the total of 244 hours of work) averages out to 7.4 hours of work a day. Considering the essentially sedentary nature of his job, this was not a heavy workload, even if it did involve his working every other Saturday. Nor was his last day stressful. Janich sat in his office until someone told him to get a move on; then *821 he and Ms gang stood by while members of a different union closed the hatches. Rain is an ordinary event in this occupation; and even if the other members of the gang were scurrying about, Janich wasn’t. The most one can say is that he walked out of his office and yelled. Is that the kind of event that precipitates a heart attack? Maybe; but it is hardly such a powerful inference as to justify the administrative law judge in ignoring Dr. Carroll’s contrary medical opinion completely.
I think that what led the administrative law judge and now this court astray is the counterintuitive character of that opinion. “Everyone knows” that stress can precipitate a heart attack, and “stress” is such a vague term that “everyone knows” that Janich must have been under stress. But the reason everyone thinks that stress can cause a heart attack is that when a lay person thinks of heart disease he invariably thinks of coronary artery disease, the narrowing of the arteries in the heart. Coronary artery disease, which can precipitate a heart attack through a sudden blockage of a coronary artery by depriving the heart muscle of the blood it needs, can be aggravated by stress; and Janich had severe coronary artery disease. But it is not the only type of heart disease. According to Carroll, Janich’s death was precipitated not by a myocardial infarction (the type of heart attack produced by the blockage of a coronary artery) but by an irregularity in the beating of Janich’s heart. The condition that produced this irregularity was related to his coronary heart disease, and specifically to his previous heart attack, but there is no argument that this condition, the precipitator (in Carroll’s opinion) of the fatal heart attack, was worsened by any emotional or physical stress that Janich may have experienced on the day of his death or on the preceding 38 days. (I am assuming here that there was substantial evidence of stress; but there was not.) I do not find in either the agency opimons or this court’s opinion any recogmtion of the distinction that I have been expounding, though it is the basis of Carroll’s opinion.
If the Department of Labor is free to disregard medical evidence of the quality and specificity of Dr. Carroll’s, it will have been empowered to read out of the statute the requirement that the worker’s injury, to be compensable, have been employment-related. The case should be remanded to the Benefits Review Board with instructions to redetermine the claimant’s entitlement to benefits in light of Dr. Carroll’s substantial evidence to the contrary.