If You Could Change One Thing

I hear people periodically wax philosophically about what they would change in this world if they could. There are those who express such thoughts globally (end world hunger), or very personally (that sunspot on my nose). And, I have heard the question asked in the context of workers' compensation in a variety of venues, as a regulator, an adjudicator, an attorney, and just as an observer. That came back to me recently when an appellate judge in Kentucky expressed some views on workers' compensation in Zoeller v. Amazon, 2018-CA-001511-WC.

The decision was rendered on June 21, 2019, and the Court designated that it was "not to be published." This blog has previously discussed the practice of appellate courts precluding decisions from having a precedential effect. See The Publication Distinction in Our Modern World.

The injured worker was disappointed that her claims were dismissed. She sought review by the Kentucky Board, which affirmed the trial judge. Kentucky is one of the states that has an intermediate administrative appellate process through which workers' compensation parties must progress before any review by a constitutional court. Ms. Zoeller, disappointed with the Board's affirmation, therefore sought review of the Board's and judge's decision with the Commonwealth Court of Appeals.

The factual setting was not extraordinary. The claimant worked for the employer, Amazon, for about two and one-half years when she "felt pain in her neck and right shoulder" while moving boxes. She sought treatment, returned to "light duty" and then "regular duty work without restriction." Despite the release, one day she was "unable to complete her shift due to neck pain," and again sought care. 

Within a month she had left Amazon. Thereafter she worked in a few places "through temporary employment agencies." and "ultimately filed two claims for workers’ compensation benefits" from Amazon related to the shoulder and neck. When she testified, she admitted there was "no specific event (that) occurred," causing her to return for medical care again and then leave Amazon in 2015. 

The Court provided a summary of various medical records documenting complaints, testing, examinations, diagnoses, and assignment of impairment ratings. This analysis included both the shoulder and the cervical spine. There were multiple physicians involved in Ms. Zoeller's care and treatment. The opinions that the various physicians expressed shared similarities, but also exhibited various distinctions. In other words, there were points upon which the various experts seemingly agreed and others upon which they did not. 

The majority opinion concluded that the "ALJ made thorough and specific findings regarding the evidence," including both "the medical and lay testimony." The judge concluded that Ms. Zoeller had "not borne her burden of proving that she suffered a work-related injury to her shoulder(s)." 

The Court noted that one doctor's opinions were "more persuasive to the ALJ because" the physician "went into detail to explain how she arrived at her conclusion as to causation." This was compared to another physician who provided "conclusory statements as an explanation of a causative relationship," which were deemed "not as persuasive." The Court mentioned that the first physician "included in her explanation information from treatment records and reports, some inconsistent with one another." Credibility has been mentioned here before, see Experts and Credibility,  Arguments and Emotions, and Blindness blindness. 

The Court described how Ms. Zoeller, in her appeal to the Board, had "asserted that the ALJ overlooked evidence that supported her claim." But, the Court noted that the standard in appellate review is not that there is or is not contradictory evidence, but whether "the ALJ’s determination" was "supported by substantial evidence." Because there was evidence to support the ALJ's decision, the argument that there was contradictory evidence, The Court noted, was "moot."

The Court noted that Ms. Zoeller's "arguments simply ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility." It noted that an employee can prove one part of a claim, "but fail to prove" another. The Court concluded that Ms. "Zoeller has simply not shown that there was evidence in her favor as to work-relatedness/causation that was 'so overwhelming that no reasonable person would fail to be persuaded by it."

One judge filed a separate opinion, a "concurrence," but noted she "would really prefer to dissent." The judge noted that the majority opinion of the court "is, no doubt, legally correct." Despite it being "correct," the concurring judge wrote to "protest the state of the law." This judge contended that there was "ample medical evidence in this record" that supported the worker 

"suffered a work-related injury, or at least an exacerbation of a pre-existing condition or of an age-related deterioration." 

The judge contended that Ms. Zoeller therefore "had to leave her job at Amazon."  As there was evidence that could have persuaded the trial judge, the "concurring" judge seems persuaded that the injured worker should prevail on her claims. The opinion seems to advocate for a process that is more deferential to evidence that supports a claim as opposed to a defense. 

The Judge took issue with the process by which there is a "finder of fact" that makes determinations as to which witnesses or evidence is most credible, logical, and accepted. She noted that in the American workers' compensation systems laws afford the finder of fact 

"virtually unbridled discretion to 'pick and choose' the evidence, quite often producing the untenable (but legally correct!) result that the beneficient purpose underlying the very genesis of the legislation is wholly undermined."

The judge essentially also laments that the law does not allow the appellate court to re-weigh the evidence; and that it instead allows the finder of fact to decide "which evidence to believe." She takes issue with an outcome that fails to resolve the worker's "pain and incapacity to perform the job at Amazon." Judge Combs finds it "lamentable," that an Administrative Law Judge might accept the opinions of one physician (or witness) and reject the opinions of "four other examining physicians." In that phrase, perhaps suggesting that determinations should be more mathematical (four on one side versus one on the other leading to a decision for the position on which there are four). 

Judge Combs concludes that a system in which a judge can make such a determination, accepting one opinion and rejecting others, casts a system that was designed to balance the interests of employees and employers into an "insurmountable burden of proof to the employee." Judge Combs advocates that the Kentucky Legislature should conclude that such fact-finding discretion has "emasculated that balanced and equitable legislative intent," and legislatively "correct this situation and restore equilibrium to the equation." Is it possible that what constitutes "equilibrium" of balance might be a subject upon which reasonable people could disagree?

This concurrence is an interesting analysis that casts criticism but proposes no solution. Judge Combs clearly rejects the process in which a trial judge makes determinations as to which witnesses are most credible. But, what system would the judge have the legislature enact in its place? If the Kentucky system is not "balanced or equitable," what alteration would render it so? Is it, perhaps, that the trial judge's judicial discretion is "virtually unbridled," and some limitation on the discretion would bring about the outcome the judge wishes.

Or, would another solution be simpler? Perhaps the solution is that witnesses should explain both opinions and the facts that lead to them? Should the law be altered to force the acceptance of opinions that are "conclusory statements" that perhaps lack factual support and explanation? Should the law be altered to somehow imbue opinions with credibility despite not explaining the information that is inconsistent or contradictory? In short, is the solution changing the law or for experts to better explain their opinions and the facts that support them?

What would you change, if you could change one thing?