Judge's Benchbook:

Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic 23 - Evidence


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Description

Topic

Evidence

23

  • Evidence ADA

23.1

  • Admission of Evidence

23.2

  • Evidence--ALJ Can Accept Or Reject Medical Testimony

23.5

  • ALJ Determines Credibility of Witnesses

23.6

  • ALJ May Draw Inferences Based On Evidence Presented

23.7

TOPIC 23

Topic  23.1  Evidence�APA�Generally 

 

Mai v. Knight & Carver Marine , (Unpublished)(BRB No. 04-0183)(Oct. 15, 2004).

 

            This case contains a discussion of the �adverse inference rule.�  Here the Board rejected the claimant's contention that an adverse inference should have been drawn based on the employer's failure to produce the claimant's time cards, which the claimant alleges would have shown maritime employment:

 

�Such an inference cannot substitute for claimant's failure to establish an essential element of his claim, namely, that he engaged in maritime employment.  Moreover, employer correctly contends that claimant could have obtained this evidence through discovery, but apparently made no attempt to do so.�


Topic 23.1      Evidence

 

Newport News Shipbuilding & Dry Dock Co. v. Harris-Smallwood, (Unpublished)(No. 02-1590) ( 4th Cir July 12, 2004).

 

            In this unpublished matter involving Sections 12 and 13, the Fourth Circuit provides a good discussion dealing with crediting testimony of witnesses and weighing contradictory evidence and Section 8(f).


Topic 23.1      Evidence  APA--Generally

 

Burley v. Tidewater Temps, Inc ., 35 BRBS 185 (2002).

 

            Here the Board found the ALJ's exclusion from evidence of a labor market survey to be an abuse of discretion and a violation of 20 C.F.R.. � 702.338 ("...The [ALJ] shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. ...) by excluding this relevant and material evidence. Significantly, the Board stated:

 

Moreover, given the importance of the excluded evidence in this case and the administrative law judge's use of permissive rather than mandatory language in his pre-hearing order, employer's pre-hearing submission of its labor market survey to claimant ...does not warrant the extreme sanction of exclusion.

 

While the submission time of this report did not comply with the pre-trial order, employer argued that it was reasonable in that it was in direct response to a doctor's deposition taken only four days prior to the time limit. Furthermore, the employer argued that the ALJ's pre-trial order used the permissive rather than mandatory language ("Failure to comply with the provisions of this order, in the absence of extraordinary good cause, may result in appropriate sanctions.")

 

            In ruling in favor of the employer on this issue, the Board distinguished this case from Durham v. Embassy Dairy , 19 BRBS 105 (1986) (Held: ALJ has discretion to exclude even relevant and material evidence for failure to comply with the terms of a pre-hearing order even despite the requirements of Section 702.338) and Smith v. Loffland Bros ., 19 BRBS 228 (1987) (Held: party seeking to admit evidence must exercise due diligence in developing its claim prior to the hearing.) The Board noted that Durham did not involve the last minute addition of a new issue, i.e., the availability of suitable alternate employment, but rather employer's failure to list a witness, whose testimony would have been with regard to the sole issue in that case, in compliance with the ALJ's pre-hearing order. Similarly, the Board distinguished Smith as a case where the party did not exercise due diligence in seeking to admit evidence.

 

            Additionally, in Burley , the Board found that the ALJ properly invoked the Section 20(a) presumption, finding that the parties stipulated that the claimant sowed that he suffered an aggravation to a pre-existing, asymptomatic fracture in his left wrist and that conditions existed at work which could have caused this injury.


Topic 23.2      Admission of Evidence

 

Patterson v. Omniplex World Services , 36 BRBS 149 (2003).

 

            This Defense Base Act case has issues concerning the admission of evidence and the scope of the relevant labor market for suitable employment purposes. Here, the claimant from Missouri was injured while employed as a security guard in oscow as an embassy construction site. He had previously worked for this same employer for approximately six years before this injury in various locations.

 

            After the close of the record in this matter, the employer requested that the record be reopened for the submission of "new and material" evidence which became available only after the close of the record. Specifically, the employer asserted that in a state court filing dated subsequent to the LHWCA record closing, the claimant stated that he had previously been offered and had accepted a security guard job in Tanzania.

 

            The claimant argued that this evidence should not be admitted as it was outside the relevant Trenton, Missouri, labor market. The ALJ issued an Order Denying otion to Reopen Record, stating that his decision would be based upon the existing record "due to the fact that the record was complete as of the date of the hearing together with the permitted post-hearing submissions, the complexity of the matters being raised post-hearing, the delays that would be encountered if further evidence is admitted, and the provisions of Section 22 of the Act which provide for modification of the award, if any."

 

            In overturning the ALJ on this issue, the Board found the evidence to be relevant and material, and not readily available prior to the closing of the record. The evidence was found to be "properly admissible under Section 18.54(c) of the general rules of practice for the Office of Administrative Law Judges, as well as under the specific regulations applicable to proceedings under the Act. 20 C.F.R. §� 702.338, 702.339. See Generally Wayland v. Moore Dry Dock , 21 BRBS 177 (1988).

 

            The Board further noted that Sections 18.54(a) of the Rules of Practice and 20 C.F.R. § 702.338 explicitly permit an ALJ to reopen the record, at any time prior to the filing of the compensation order in order to receive newly discovered relevant and material evidence.

 

            While the Board affirmed the ALJ's conclusion that Missouri is the claimant's permanent residence, and thus his local labor market in the case, the Board opined that the ALJ should have considered the significance of the claimant's overseas employment in evaluating the relevant labor market. The Board concluded that, given the claimant's employment history, the labor market cannot be limited solely to the Trenton, Missouri, area. Additionally, the Board noted that, in fact, the claimant has continued to perform post-injury security guard work in the worldwide market.


Topic  23.2     Admission of Evidence

 

[ED. NOTE: Since the following Black Lung case involves the OALJ regulation, 29 C.F.R. § 18.20, it is mentioned here. ]

 

Johnson v. Royal Coal Co ., 326 F.3d 421 ( 4th Cir . 2003).

 

            In this matter, the Fourth Circuit found that the Board incorrectly upheld the ALJ's failure to address admissions and erred in finding that 29 C.F.R. § 18.20 (Failure to respond appropriately to an outstanding admission request constitutes admissions) does not apply to the Black Lung Act.  The Fourth Circuit further found that, based on a consideration of the analogous Fed. R.Civ. P. 36, an opposing party's introduction of evidence on a matter admitted [via failure to respond to requests for admissions] does not constitute either a waiver by the party possessing the admissions, nor as a constructive motion for withdrawal or amendment of admissions.


Topic 23.5      Evidence�ALJ Can Accept Or Reject Medical Testimony

 

Cooper/T. Smith, Inc, v. Veles , (Unreported)(No. 03-60809)( 5th Cir. March 17, 2004); 2004 U.S. App. LEXIS 5077.

 

            In this Section 20(a) presumption case, the employer faulted the ALJ for preferring the testimony of treating physicians over the respondent's expert witness and for crediting the claimant's testimony with respect to the difficulties caused by his knee and back. However, the Fifth Circuit found that the ALJ's findings were supported by substantial evidence, and that the Board acted properly in refusing to gainsay them. The court found that although the respondents pointed to the employer's physician's doubts that the back injury flowed from the claimant's limp, and also pointed to the claimant's "hypersensitivity" to pain, it was within the ALJ's purview to exercise his judgment in evaluating witnesses' credibility and in assembling the evidence presented to him. "Merely because different determinations of credibility could have led to different conclusions, does not mean that the ALJ's fact finding was unsupported by substantial evidence."


Topic 23.5      Evidence�ALJ Can Accept Or Reject Medical Testimony

 

[ED. NOTE: The following Black Lung Benefits Act case is included because it may be applicable to Longshore cases. For a thorough discussion, please see the Black Lung portion of this Digest. ]

 

Eastover Mining Co. v. Williams, 338 F.3d 501 ( 6th Cir. 2003).

 

            In Black Lung cases, the Sixth Circuit has retreated from its earlier position that the treating physician's opinion is entitled to controlling weight. [The Longshore Bar has long called this concept of giving controlling weight to the treating physician, the �treating physician rule.�] In its opinion, the Sixth Circuit notes the Supreme Court's position in Black & Decker Disability Plan v. Nord , 123 S.Ct. 1965 (2003)(Ginsburg, J.) wherein a unanimous Court criticizes the usefulness of automatically granting deference to the opinion of a treating physician.


Topic 23.5      Evidence�ALJ Can Accept or Reject Medical Evidence

 

[ED. NOTE: The following Social Security case is included since its holding may be applied in a Longshore context as well. ]

 

Connett v. Jo Anne B. Barnhart, Commissioner, 340 F.3d 871 ( 9th Cir. 2003).

 

            At issue here was the ALJ's acceptance/rejection of medical evidence. The Ninth Circuit noted that the ALJ who holds a hearing in the commissioner's stead, is responsible for determining credibility and resolving conflicts in medical testimony, and that when rejecting a claimant's testimony, the ALJ must be specific. An ALJ may reject pain testimony, but must justify his/her decision with specific findings. In the instant case, the court noted that the ALJ's rejection of certain claims regarding the claimant's limitations was based on clear and convincing reasons supported by specific facts in the record that demonstrated an objective basis for his finding. �The ALJ stated which testimony he found not credible and what evidence suggested that the particular testimony was not credible.� Therefore, the decision was supported by substantial evidence.

 

            As to other claims where the ALJ did not assert specific facts or reasons to reject the claimant's testimony, the matter was reversed. In addressing the treating physician's opinion, the Ninth Circuit noted that where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. The ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician �if the ALJ makes �findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. In the instant case the Ninth Circuit found that the treating physician's extensive conclusions were not supported by his own treatment notes.

 

            The claimant also alleged that the �crediting as true� doctrine is mandatory in the Ninth Circuit . The �crediting as true� doctrine holds that an award of benefits is mandatory where the ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony. However, the Ninth Circuit specifically stated that it is not convinced that the doctrine is mandatory in that circuit. In finding that there is no other way to reconcile the case law of the circuit, the court stated, �Instead of being a mandatory rule, we have some flexibility in applying the �crediting as true� theory.�


Topic 23.6      ALJ Determines Credibility of Witness

 

Newport News Shipbuilding & Dry Dock Co. v. Harris-Smallwood, (Unpublished)(No. 02-1590) ( 4th Cir July 12, 2004).

 

            In this unpublished matter involving Sections 12 and 13, the Fourth Circuit provides a good discussion dealing with crediting testimony of witnesses and weighing contradictory evidence and Section 8(f).


Topic 23.6      Evidence�ALJ Determines Credibility of Witnesses

 

[ED. NOTE: The following Social Security case is included since its holding may be applied in a Longshore context as well. ]

 

Connett v. Jo Anne B. Barnhart, Commissioner, 340 F.3d 871 ( 9th Cir. 2003).

 

            At issue here was the ALJ's acceptance/rejection of medical evidence. The Ninth Circuit noted that the ALJ who holds a hearing in the commissioner's stead, is responsible for determining credibility and resolving conflicts in medical testimony, and that when rejecting a claimant's testimony, the ALJ must be specific. An ALJ may reject pain testimony, but must justify his/her decision with specific findings. In the instant case, the court noted that the ALJ's rejection of certain claims regarding the claimant's limitations was based on clear and convincing reasons supported by specific facts in the record that demonstrated an objective basis for his finding. �The ALJ stated which testimony he found not credible and what evidence suggested that the particular testimony was not credible.� Therefore, the decision was supported by substantial evidence.

 

            As to other claims where the ALJ did not assert specific facts or reasons to reject the claimant's testimony, the matter was reversed. In addressing the treating physician's opinion, the Ninth Circuit noted that where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. The ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician �if the ALJ makes �findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. In the instant case the Ninth Circuit found that the treating physician's extensive conclusions were not supported by his own treatment notes.

 

            The claimant also alleged that the �crediting as true� doctrine is mandatory in the Ninth Circuit . The �crediting as true� doctrine holds that an award of benefits is mandatory where the ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony. However, the Ninth Circuit specifically stated that it is not convinced that the doctrine is mandatory in that circuit. In finding that there is no other way to reconcile the case law of the circuit, the court stated, �Instead of being a mandatory rule, we have some flexibility in applying the �crediting as true� theory.�


Topic  23.6     ALJ Determines Credibility of Witnesses

 

Stevens v. General Container Services , (Unpublished) (BRB No. 01-0677A)(April 30, 2003).

 

            Here the ALJ's authority to obtain answers to his own interrogatories and thereby discredit the claimant was upheld by the Board.  At the hearing, the ALJ had observed that the claimant's demeanor while testifying on direct for an hour indicated severe back pain.  However, after a 30 minute break and upon resuming the witness stand, the claimant acted as though he were free of pain.  The ALJ later sent the claimant interrogatories to elicit whether he had taken pain medication during the break.  The claimant answered that he had taken pain medication six hours earlier.  From this response the ALJ concluded, in part because of the changed demeanor on the stand that the claimant was not credible about having severe back pain.  The ALJ had concluded that the claimant had 'simply forgot to resume the demeanor he had earlier employed for the purpose of conveying that he was in severe back pain.�  The Board found that the claimant's disagreement with the ALJ's weighing of the evidence is not sufficient reason for the Board to overturn it.


Topic  23.7     Evidence�ALJ May Draw Inferences Based on Evidence Presented

 

Mai v. Knight & Carver Marine , (Unpublished)(BRB No. 04-0183)(Oct. 15, 2004).

 

            This case contains a discussion of the �adverse inference rule.�  Here the Board rejected the claimant's contention that an adverse inference should have been drawn based on the employer's failure to produce the claimant's time cards, which the claimant alleges would have shown maritime employment:

 

�Such an inference cannot substitute for claimant's failure to establish an essential element of his claim, namely, that he engaged in maritime employment.  Moreover, employer correctly contends that claimant could have obtained this evidence through discovery, but apparently made no attempt to do so.�


Topic 23.7      Evidence�ALJ May Draw Inferences Based On Evidence Presented

 

[ED. NOTE: The following Social Security case is included since its holding may be applied in a Longshore context as well. ]

 

Connett v. Jo Anne B. Barnhart, Commissioner, 340 F.3d 871 ( 9th Cir. 2003).

 

            At issue here was the ALJ's acceptance/rejection of medical evidence. The Ninth Circuit noted that the ALJ who holds a hearing in the commissioner's stead, is responsible for determining credibility and resolving conflicts in medical testimony, and that when rejecting a claimant's testimony, the ALJ must be specific. An ALJ may reject pain testimony, but must justify his/her decision with specific findings. In the instant case, the court noted that the ALJ's rejection of certain claims regarding the claimant's limitations was based on clear and convincing reasons supported by specific facts in the record that demonstrated an objective basis for his finding. �The ALJ stated which testimony he found not credible and what evidence suggested that the particular testimony was not credible.� Therefore, the decision was supported by substantial evidence.

 

            As to other claims where the ALJ did not assert specific facts or reasons to reject the claimant's testimony, the matter was reversed. In addressing the treating physician's opinion, the Ninth Circuit noted that where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. The ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician �if the ALJ makes �findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. In the instant case the Ninth Circuit found that the treating physician's extensive conclusions were not supported by his own treatment notes.

 

            The claimant also alleged that the �crediting as true� doctrine is mandatory in the Ninth Circuit . The �crediting as true� doctrine holds that an award of benefits is mandatory where the ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony. However, the Ninth Circuit specifically stated that it is not convinced that the doctrine is mandatory in that circuit. In finding that there is no other way to reconcile the case law of the circuit, the court stated, �Instead of being a mandatory rule, we have some flexibility in applying the �crediting as true� theory.�


Topic  23.7     ALJ May Draw Inferences Based On Evidence Presented

 

[ED. NOTE: Since the following Black Lung case involves the OALJ regulation, 29 C.F.R. § 18.20, it is mentioned here. ]

 

Johnson v. Royal Coal Co ., 326 F.3d 421 ( 4th Cir. 2003).

 

            In this matter, the Fourth Circuit found that the Board incorrectly upheld the ALJ's failure to address admissions and erred in finding that 29 C.F.R. §18.20 (Failure to respond appropriately to an outstanding admission request constitutes admissions) does not apply to the Black Lung Act.  The Fourth Circuit further found that, based on a consideration of the analogous Fed. R.Civ. P. 36, an opposing party's introduction of evidence on a matter admitted [via failure to respond to requests for admissions] does not constitute either a waiver by the party possessing the admissions, nor as a constructive motion for withdrawal or amendment of admissions.


Topic  23.7     ALJ May Draw Inference Based on Evidence Presented

 

Stevens v. General Container Services , (Unpublished) (BRB No. 01-0677A)(April 30, 2003).

 

            Here the ALJ's authority to obtain answers to his own interrogatories and thereby discredit the claimant was upheld by the Board.  At the hearing, the ALJ had observed that the claimant's demeanor while testifying on direct for an hour indicated severe back pain.  However, after a 30 minute break and upon resuming the witness stand, the claimant acted as though he were free of pain.  The ALJ later sent the claimant interrogatories to elicit whether he had taken pain medication during the break.  The claimant answered that he had taken pain medication six hours earlier.  From this response the ALJ concluded, in part because of the changed demeanor on the stand that the claimant was not credible about having severe back pain.  The ALJ had concluded that the claimant had 'simply forgot to resume the demeanor he had earlier employed for the purpose of conveying that he was in severe back pain.�  The Board found that the claimant's disagreement with the ALJ's weighing of the evidence is not sufficient reason for the Board to overturn it.