Substantial Evidence Must Have Some Substance

By Stephen C. Embry, Embry and Neusner, Groton, Connecticut

Science, clinical medicine, and the law live in the same city but in different neighborhoods. Each of the disciplines is concerned with the development and organization of information to answer questions, but the methods and purposes do not fully overlap. Science is interested in universal truths, and its methods are designed to seek absolute rather than relative truth.

The scientific method generally requires that a hypothesis be tested under controlled circumstances and the results found to be repeatable in numerous settings. Even then the spirit of science is suspicion and the scientist must keep an open mind and believe that future tests and experiments will produce different results.

Clinical medicine is concerned primarily with differential diagnosis, which, by definition, involves uncertainty and probability. The doctor can use standardized tests and acquired knowledge to derive possible causes for pathologies and to diagnose disease and then must choose from a range of treatments. This involves an approach to treatment based on probabilities rather than a scientific analysis of absolute treatments. This uncertainty principle arises from the very nature of treatment of individual patients. These individual patients have different and idiosyncratic responses to different stimuli and pathogens and will respond differently to recommended courses of treatment. The clinician cannot afford to only treat disease based on the standards of universal scientific certainty, but must always be pushing forward into, at best, partially-charted territory. The doctor must constantly correct course based upon results and failures. The treatment will usually not be final although the results may be irreversible.

The law is also required to engage in evaluation of evidence and ultimately choose among limited options. The purpose of the law, however, is dispute resolution and not truth determination. The system is designed to produce tension and fear of loss to encourage compromise so that the parties can agree upon a resolution of their dispute. If this fails and the litigation proceeds to conclusion, the result is always based on probabilities, but the conclusion must be final, even if flawed.

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A Zenn diagram of science, clinical medicine, and the law would overlap in part but legal solutions will rarely coincide entirely with scientific certainty. This principle is recognized and memorialized by Section 20 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C.S. § 920), which generally resolves doubts in favor of the claimant. Barscz v. Director, OWCP, 486 F.3d 744, 41 BRBS 17(CRT) (2d Cir. 2007).

The District of Columbia Court of Appeals, in Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968), fully explored the tension between medical and legal definitions of causation. There, the claimant had died while answering the call of nature at the worksite. The employer’s medical expert indicated that he did not believe this activity caused the decedent’s heart-related death. The Wheatley court noted that the presumption of compensability of 33 U.S.C.S. § 920(a) is based in part on the humanitarian purpose of the Longshore Act. It further noted that in order to rebut this presumption the respondent must do more than simply offer a bald opinion by an expert, and must instead offer “substantial evidence to the contrary.” The court noted that such “evidence may be hard to develop, given the limits of medical ability to reconstruct why ‘something unexpectedly goes wrong within the human frame.’ But that is precisely why the presumption was inserted by Congress. It signals and reflects a strong legislative policy favoring awards in arguable cases.” Consequently, the evidence must be evaluated to determine if it is “substantial.” Mere “isolated” evidence will not rise to the level of “substantial.” Wheatley, supra, at 313-314.

The court in Wheatley also noted that the issue to be determined was a legal, not a medical issue. The “premise underlying [the expert’s] opinion is at core a proposition of law, not science, that lies outside the province of his expertise.” Stated differently, the question is one of legal, not medical, causation.

The core of legal causation is based on positive evidence and generally the presumption cannot be rebutted by negative inferences and, in fact, the absence of evidence is not evidence at all. Adams v. General Dynamics Corp., 17 BRBS 258 (1985).

Wheatley the employer's expert testified that Mr. Wheatley had arterial heart disease, which was the “major reason,” he had the heart attack. However, he had had this disease for an indeterminate time prior to his death, and something caused him to go from being alive with coronary disease to being dead with coronary disease. The precipitating factor was the legal cause, while the pathological condition was the medical cause. The two concepts did not overlap, and it was the failure to rebut the presumption that the act of urinating in the cold was the precipitating factor that decided the case.

In evaluating the evidence to determine if it is substantial one must determine if it is supported by the facts underlying the opinion.

In Dower v. General Dynamics Corp., 14 BRBS 324 (1981), the Benefits Review Board found that the opinion of the medical expert was based on an incorrect reading of scientific studies and was thus not substantial evidence.

In order for the evidence to be “substantial” it must be based on a correct reading of the evidence found in the record. In American Grain Trimmers, Inc. v. OWCP (Janich), 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999), cert. denied, 528 U.S. 1187, 146 L. Ed. 2d 98, 120 S. Ct. 1239 (2000), the employer presented expert opinion that the claimant’s heart attack was not work-related. The Seventh Circuit noted that “substantial” evidence required more than some evidence, it must be of a certain quality, it must be “specific and comprehensive, not speculation.”

In Janich, the doctor stated with reasonable medical certainty that claimant’s work did not cause the injury, but admitted that he did not have any idea what work Mr. Janich was doing. The court found that this medical opinion was not “substantial evidence.”

There has been a recent trend to simply elevate any evidence to the level of “substantial,” and some trial courts have held that the mere production of a medical opinion will rebut the presumption if “a reasonable man might believe it.” However, the statute does not provide that the presumption is rebutted by the production of some evidence, but only substantial evidence. Consequently the administrative law judge must first determine if the medical opinion is based on the legal, not scientific or medical, definition of causation. The judge must also determine whether the medical opinion is based on actual, non-speculative evidence in the record, and by positive evidence and not negative inference or the lack of evidence.

© Copyright 2015 Law Offices of Embry and Neusner. All rights reserved. Reprinted by permission.