# American Grain Trimmers, Inc., and Frank Gates-Acclaim v. Office of Workers' Compensation Programs, and Marian Janich

> Court of Appeals for the Seventh Circuit · June 21, 1999 · 181 F.3d 810

URL: https://www.frixlaw.com/law-library/cases/9492245

## Case

- **Full name:** AMERICAN GRAIN TRIMMERS, INC., and Frank Gates-Acclaim, Petitioners, v. OFFICE OF WORKERS’ COMPENSATION PROGRAMS, and Marian Janich, Respondents
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** June 21, 1999
- **Citations:** 181 F.3d 810; 1999 U.S. App. LEXIS 13606; 1999 WL 404697
- **Precedential status:** Published
- **Opinion:** Dissent by Flaum
- **Judges:** Posner, Bauer, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne, Rovner, Wood, Evans
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492245

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

FLAUM, Circuit Judge,
joined by MANION, Circuit Judge,
dissenting.
While I fully agree with the Majority’s well reasoned analysis of the 20(a) presumption, I dissent from the result because I believe that affirming the ALJ’s decision undermines the very approach announced today.
As the Majority explains, the 20(a) presumption is overcome by production, not persuasion. Once the employer produces substantial evidence suggesting that the employee’s death was not work-related, coverage is no longer presumed but must be proved by the claimant based on a preponderance of the record evidence. Substantial evidence in this context refers to the mimmum quantity of evidence which, if believed, could support a particular decision or finding. See Steadman v. SEC, 450 U.S. 91, 98 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981); Del Vecchio v. Botvers, 296 U.S. 280, 286 , 56 S.Ct. 190 , 80 L.Ed. 229 (1935). As the Majority notes, this standard has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 , 91 S.Ct. 1420 , 28 L.Ed.2d 842 (1971); see Garvey Grain Co. v. Director, OWCP, 639 F.2d 366, 370 (7th Cir.1981) (per curiam) (“Substantial evidence must be enough to justify, if the trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn from it is one of fact for the jury.”).
*822 Unfortunately, I believe the ALJ did not apply this approach or standard to Janich’s case. The record strongly suggests that he shifted the burden of proof to the employer and required it to do much more than produce substantial evidence in rebutting the 20(a) presumption. The ALJ, relying on the BRB’s decision in Kubin v. ProFootball, Inc., 29 BRBS 117 (1995), stated that, “Section 20(a), once invoked, shifts the burden of proof to the employer on the issue of causation such that the employer must prove that the disability (or death) was neither caused nor aggravated by the claimant’s employment.” Even if, as the Majority asserts, this statement is dicta, I do not share their confidence that the ALJ nonetheless “had the right standard in mind.” On the contrary, the ALJ’s assessment of AGT’s evidence supports the opposite conclusion.
The BRB affirmed the ALJ, stating that his opinion had “concluded that [Doctor Carroll’s] testimony did not rebut the 20(a) presumption as his opinion was based on speculation and probabilities.... As the record supports the [ALJ’s] conclusion that Dr. Carroll’s opinion did not unequivocally rule out a connection between decedent’s employment and his death, he did not err in finding it insufficient to rebut Section 20(a).” 1 However, as Chief Judge Posner explains, the fact that the doctor’s conclusion was probabilistic and called for some degree of speculation did not make it insubstantial. More revealing is the BRB’s statement that Dr. Carroll failed to rebut the presumption because he could not unequivocally rule out all work-related causes of death. This conclusion may have been appropriate for a party bearing the burden of proof, but not for a party whose only burden was to produce substantial evidence. The ALJ’s statement only makes sense if he (mistakenly) believed that the employer retained the burden of proof on the question of causation and had to refute the presumption of coverage by at least a preponderance of the evidence.
Had the Majority’s approach actually been followed, the ALJ would have eliminated the presumption and analyzed the case on the record as a whole, with the claimant bearing the ultimate burden of proof. This does not appear to have happened. Without necessarily accepting Judge Posner’s view of the evidence’s strength (nor the Majority’s view of its weakness), I believe that Dr. Carroll’s testimony was at least substantial. The doctor stated that due to the nature and history of Janich’s heart problems, it was more likely than not that work played no role in his death. This is certainly “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 , 91 S.Ct. 1420 . Because AGT had produced “substantial evidence to the contrary,” 33 U.S.C. § 920 (a), the ALJ should have extinguished the presumption of coverage at that point.
This is not to say that the ALJ’s finding of coverage was ultimately incorrect. He may well have concluded that Mrs. Janich proved by a preponderance of the evidence that Mr. Janich’s work was the most likely cause of his death. But because we cannot be sure what role the improperly retained presumption played in the decision, we should remand for reconsideration consistent with the clear approach the Majority outlines today. In attempting to save the ALJ’s decision by claiming that he never shifted the burden of proof and only required the employer to produce substantial rebuttal evidence, the Majority runs the risk of either creating uncertainty about its approach in future cases or of establishing a far more demanding (and novel) version of the substantial evidence standard.
. It should be emphasized that the doctor's' testimony, which was credited by the ALJ, was not based on speculation, but on a review of the decedent’s medical history and an understanding of Janich's duties.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492245. Public record. Not legal advice.