ambiguous or equivocal evidence of causation may constitute substantial evidence
How later courts described this case
- ambiguous or equivocal evidence of causation may constitute substantial evidence
Written by the judges who cited it.
The opinion
LANDAU, J.,
dissenting.
When we review for “substantial evidence,” we are not required to affirm a factual finding if it is supported by any evidence, no matter how meager. The law requires more than that. It requires such evidence that “a reasonable mind would employ to support a conclusion.” Ruiz v. Employment *267 Division, 83 Or App 609, 614 , 733 P2d 51 (1987) (citing Cook v. Employment Division, 47 Or App 437, 441 , 614 P2d 1193 , rev den 290 Or 157 (1980)); see also de St. Germain v. Employment Division, 74 Or App 484, 488 , 703 P2d 986 (1985) (substantial evidence “ ‘means more than “any evidence,” a scintilla of evidence, or speculation’ ” (quoting Cantrell v. Employment Division, 24 Or App 215, 217 , 545 P2d 143 (1976))). With that standard in mind, I find it impossible to conclude that the markings that appear on a questionnaire sent to claimant’s physician, by themselves and with reference to no other testimony or evidence, constitute substantial evidence of a finding as to Dr. Rand’s opinion on the issue of causation.
Claimant’s attorney sent a faxed memorandum to Rand asking him to respond to two questions:
“Is it more probable than not that [claimant’s] favoring of his left shoulder is the major contributing cause of his right shoulder problem? Is it otherwise more probable than not that the right shoulder problem was caused in major part by the work at Young and Morgan or the left shoulder injury?”
Rand did not answer either question. He did not say “yes” to one and “no” to the other. He did not check either one. What he did was circle the words “not that” and the word parts “er pro.” He then underlined “not that [claimant’s] favo” and “cause of his right shoulder” and inserted the initials “LR” in the left margin.
Only rank speculation can make an opinion of any sort out of those markings. Certainly, it is possible that Rand intended them to mean something. From the markings themselves, however, it is impossible to say precisely what he intended them to mean. We cannot, for example, begin to tell whether the markings are intended to answer either question in the affirmative or whether the markings are instead mere indiscriminate doodles. In either event, the curious markings that appear on the attorney’s questionnaire are not the sort of evidence that reasonable minds would employ to support a finding of fact, and the mere fact that the Board reached a contrary conclusion does not mean that we must do likewise.
I respectfully dissent.