TOPIC 23 EVIDENCE
23.1 ADMINISTRATIVE PROCEDURE ACT--GENERALLY
Section 23 of the LHWCA provides:
(a) In making an investigation or inquiry or conducting a hearing
the deputy commissioner or Board shall not be bound by common
law or statutory rules of evidence or by technical or formal rules of
procedure, except as provided by this Act; but may make such
investigation or inquiry or conduct such hearing in such manner as
to best ascertain the rights of the parties. Declarations of a
deceased employee concerning the injury in respect of which the
investigation or inquiry is being made or the hearing conducted
shall be received in evidence and shall, if corroborated by other
evidence, be sufficient to establish the injury.
(b) Hearings before a deputy commissioner or Board shall be open
to the public and shall be stenographically reported, and the deputy
commissioners, subject to the approval of the Secretary, are
authorized to contract for the reporting of such hearings. The
Secretary shall by regulation provide for the preparation of a
record of the hearings and other proceedings before the deputy
commissioner or Board.
33 U.S.C. § 923.
[ED. NOTE: For information on claim procedure, the adjudicatory process, discovery and APA
formal hearing requirements, see Topic 19 generally.]
Section 556(e) of the Administrative Procedure Act (APA) states that the transcript of testimony
and exhibits, together with all papers and requests filed in a proceeding, constitute the exclusive record for
decision. See 5 U.S.C. § 556(e).
Pursuant to 20 C.F.R. § 702.338, evidence must be formally admitted into the record; a decision
issued based on evidence not formally admitted violates the APA. Ross v. Sun Shipbuilding & Dry Dock
Co., 16 BRBS 224 (1984) (ALJ did not rule on objections to admission, and thus documents never
became part of record).
In Williams v. Hunt Shipyards, Geosource, Inc., 17 BRBS 32 (1985), the judge erroneously
decided a motion for modification on the basis of evidence which was never formally admitted into
evidence. See Lindsay v. Bethlehem Steel Corp., 18 BRBS 20 (1986) (Board cannot consider evidence
submitted at oral argument indicating that claimant is barred from compensation due to a third-party
settlement; case remanded to ALJ to admit and consider evidence); Woods v. Bethlehem Steel Corp., 17
BRBS 243 (1985) (motion to dismiss appeal due to unapproved third party settlement denied as facts are
not in record; employee may seek Section 22 modification).
The hearing provisions of Section 556 of the APA are mirrored in Sections 23 and 27 of the
LHWCA, as well as the regulations that pertain to adjudication. 20 C.F.R. §§ 702.331 to 702.351. See
also Grandy v. Vinnell Corp., 14 BRBS 504 (1981) (Section 19(d) of the LHWCA incorporates APA
procedures).
Section 23(a) of the LHWCA provides that the hearing officer (now administrative law judge) shall
not be bound by common law or statutory rules of evidence, or by technical or formal rules of procedure.
It also states that declarations of a deceased employee shall be sufficient to establish injury if corroborated
by other evidence. See Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985). See also Rule 81(a)(6)
of the Federal Rules of Civil Procedure, providing that the Federal Rules apply to proceedings for
enforcement or review under the LHWCA.
[ED. NOTE: In Director, OWCP v. Greenwich Collieries (Maher Terminals) 512 U.S. 267 (1994),
the Supreme Court held that an injured worker claiming compensation must prove the elements of
her claim by a "preponderance of the evidence." The Court found that the "true doubt" rule under
which the claimant wins if the evidence is evenly balanced, is inconsistent with Section 7(c) of the
APA as that section is applied to the LHWCA. See Topic 23.7.1, infra.]
Section 23(b) provides for open hearings on the record and requires that hearings be
stenographically reported.
Section 27(a) grants the ALJ the authority to issue subpoenas, administer oaths, compel attendance
and testimony of witnesses, production of documents, and "all things conformable to law which may be
necessary to enable him effectively to discharge the duties of his office." 33 U.S.C. §§ 923(a)(b), 927(a).
Section 27(b) pertains to district court enforcement of lawful orders issued by adjudicators under
Section 27(a). See 5 U.S.C. § 556(c).
The regulations detail how formal hearings will be conducted. Section 702.337, for example,
pertains to the location and time of the formal hearing. Although continuances will not be granted except
in cases of extreme hardship, the judge's decision to continue a hearing will be overturned only for a clear
abuse of discretion. Colbert v. National Steel & Shipbuilding Co., 14 BRBS 465 (1981).
Section 702.338 requires parties or their representatives to attend the hearings, dictates that the
judge shall inquire into all matters at issue and receive evidence pertaining thereto, and allows the ALJ to
reopen the hearing for the receipt of new evidence deemed necessary. See Bingham v. General Dynamics
Corp., 14 BRBS 614 (1982); Sprague v. Bath Iron Works Corp., 11 BRBS 134 (1979), decision
following remand, 13 BRBS 1083 (1981), aff'd sub nom. Sprague v. Director, OWCP, 688 F.2d 862,
15 BRBS 11 (CRT) (1st Cir. 1982) (ALJ may inquire into matters not in the record to determine whether
they are relevant or subject to discovery).
An attorney's statement of the case is not evidence. Cronin v. Pro-Football, Inc., (BRB Nos. 99-1257 and 99-1257A)(Sept. 12, 2000)(Unpublished); see Johnsen v. Orfanos Contractors, Inc., 25 BRBS
329 (1992). In Johnsen, the Board reviewed an ALJ's finding that the injury at issue did not occur on
navigable waters. The Board rejected the claimant's contention that the ALJ erred in finding that no
evidence was presented indicating that the claimant was exposed to lead while in employer's boat, as it was
supported only by the claimant's attorney's opening statement.
23.2 ADMISSION OF EVIDENCE
[ED. NOTE: For a discussion on the use of deposition evidence, see infra, Topic 24.3. For a
discussion on OSHA compliance as substantial rebuttal evidence, see infra, Topic 27.1.14.]
Evidence must be formally admitted into the record. The adjudicative inquiry functions primarily
to ascertain the rights of the parties without the constraint of common law or statutory rules of evidence or
technical rules of procedure. Section 23(a); see Darnell v. Bell Helicopter Int'l, Inc., 16 BRBS 98, aff'd
sub nom. Bell Helicopter Int'l, Inc. v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT) (8th Cir. 1984).
The judge must fully inquire into matters that are fundamental to the disposition of the issues in a
case, and must receive into evidence all relevant and material testimony and documents. Williams v. Marine
Terminals Corp., 14 BRBS 728, 732 (1981); Bachich v. Seatrain Terminals of California, 9 BRBS 184
(1978); 20 C.F.R. § 702.338.
The failure to inquire into a matter which is fundamental to the disposition of the issues in the case
is a violation of 20 C.F.R. § 702.338. Gray & Co. v. Highlands Ins. Co., 9 BRBS 424 (1978). Such
inquiry is necessary to insure an informed decision. Sprague v. Bath Iron Works Corp., 11 BRBS 134
(1979). See also Camporeale v. Pittston Stevedoring Corp., 8 BRBS 297 (1978).
In Bachich, 9 BRBS 184 (1978), the judge erred by refusing to accept two medical reports offered
by the employer at the close of the hearing. In that case, the reports were "relevant and material" to the
dispute at issue in that case. Cf. Champion v. S & M Traylor Bros., 14 BRBS 251 (1981), rev'd on other
grounds, 690 F.2d 285, 15 BRBS 33 (CRT) (D.C. Cir. 1982); Smith v. Ceres Terminal, 9 BRBS 121
(1978) (ALJ properly refused to admit evidence under the circumstances of those cases).
The standards governing the admissibility of evidence in administrative hearings are less stringent
than those which govern under the Federal Rules of Civil Procedure. The ALJ is not bound by common
law or statutory rules of evidence or technical or formal rules of procedure, but must conduct hearings in
a manner which will best ascertain the rights of the parties. Casey v. Georgetown Univ. Med. Ctr., 31
BRBS 147 (1997). Brown v. Washington Metro. Area Transit Auth., 16 BRBS 80, 82 (1984), aff'd,
764 F.2d 926 (D.C. Cir. 1985) (rejecting claimant's argument that admissibility of depositions is limited
by Fed. R. Civ. Proc. 32).
The judge has great discretion concerning the admission of evidence, Hughes v. Bethlehem Steel
Corp., 17 BRBS 153, 155 n.1 (1985), and any decisions regarding the admission or exclusion of evidence
are reversible only if arbitrary, capricious, or an abuse of discretion. Wayland v. Moore Dry Dock, 21
BRBS 177 (1988); Champion, 14 BRBS at 255; Smith, 9 BRBS 121; see also Williams, 14 BRBS at
732-33 (within ALJ's discretion to exclude evidence offered in violation of pre-hearing order). The ALJ's
rulings regarding the admissibility of evidence are reversible only if they are arbitrary, capricious, an abuse
of discretion, or not in accordance with law. See Ramirez v. Southern Stevedores, 25 BRBS 260 (1992).
A judge may allow the admission of videotape and photographic evidence if it is relevant to the
extent of the claimant's alleged disability. Walker v. Newport News Shipbuilding & Dry Dock Co., 10
BRBS 101 (1979); see also Hughes v. Bethlehem Steel Corporation, 17 BRBS 153 (1985) (ALJ properly
admitted transcript of videotaped interview of the deceased employee under specific language of Section
23(a) of the LHWCA). (See Surveillance Evidence at Topic 23.3, infra)
The judge may also take administrative judicial notice of facts if it is done in the proper manner.
In so doing, the judge must provide the parties with "the opportunity to contradict the noticed facts with
evidence to the contrary." Jordan v. James G. Davis Constr. Corp., 9 BRBS 528.9, 530 (1978).
Thus, the Board has affirmed a judge's decision to give little weight to a doctor's testimony based,
in part, on the doctor's listing in the Directory of Medical Specialists. Lindsay v. Bethlehem Steel Corp.,
18 BRBS 20 (1986). The Board noted that the judge did not rely solely on the Directory in discrediting
the doctor; the employer submitted evidence as to the doctor's qualifications which the judge found
uncertain and the judge properly concluded that the Directory was admissible under Rule 201 of the
Federal Rules of Evidence, Fed. R. Evid. 201(b)(2), as a source whose accuracy cannot reasonably be
questioned.
The Board in Lindsay also affirmed the judge's refusal to take administrative notice of medical
textbooks submitted by employer where the judge relied instead on medical reports and testimony. The
judge concluded that the doctors' evaluations were more reliable than textbooks as the doctors had
personally examined the claimant.
[ED. NOTE: In Mullins v. Betty B. Coal Co., (BRB No. 95-1149) (Case No. 90-BLA-2597) (Mar.
14, 1996), a Black Lung Act decision, the Board held that an ALJ may take notice Altmen & Weil
Survey of Law Firm Economics when considering a fee petition, but nevertheless found that the
decision granting an award was not reasoned because the survey was not part of the record. Will
this philosophy be extended to LHWCA cases? And if extended, will it then become more broadly
applied? For instance, to the AMA's American Medical Directory which gives the specialties and
board certifications of physicians?]
A judge may draw an adverse inference against a party, concluding that where a party does not
submit evidence within his control, that evidence is unfavorable. Cioffi v. Bethlehem Steel Corp., 15 BRBS
201 (1982); Hansen v. Oilfield Safety, Inc., 8 BRBS 835, aff'd on recon., 9 BRBS 490 (1978), aff'd sub
nom. Oilfield Safety & Mach. Specialties, Inc. v. Harman Unlimited, Inc., 625 F.2d 1248, 14 BRBS 356
(5th Cir. 1980). See Lindsay, 18 BRBS 20 (any error by ALJ in drawing adverse inference is harmless).
The judge may admit at the hearing new evidence which has not previously been offered during
informal proceedings. The regulations do not require that all medical evidence be completed and presented
to the district director before the case is transferred for a formal hearing. McDuffie v. Eller & Co., 10
BRBS 685 (1979) (rejecting argument that medical examination not completed before transfer to ALJ is
inadmissible).
The regulations sanction adjourning the hearing and later reopening the proceedings for receipt of
additional evidence. A judge may add a new party under similar procedures. The party joined in this
manner is not prejudiced solely because it did not participate in the informal proceedings before the district
director, where that party was afforded the opportunity to cross-examine the opponent at a second formal
hearing. Bingham v. General Dynamics Corp., 14 BRBS 614 (1982).
The Board, in Parks v. Newport News Shipbuilding & Dry Dock Co., 32 BRBS 90 (1998),
affirmed a judge's decision to allow a claimant to enter additional evidence after her case was completed.
The employer's due process rights were not violated since the judge agreed to allow the employer the
opportunity to depose the three doctors who submitted identical affidavits composed by the claimant's
counsel and signed under oath by the three physicians. The employer, however, made no effort to
supplement the record. The Board further noted that the evidence submitted by the claimant was material
and relevant to the issue in dispute, namely whether the decedent had asbestosis.
In Ion v. Duluth, Missabe and Iron Range Railway Co.(Duluth II), 32 BRBS 268) (1998), the
Board noted that an ALJ is acting in his discretion in determining that further vocational evidence went
beyond the scope of rebuttal and therefore, was inadmissible.
A claimant's testimony regarding the decedent's level of financial support constitutes record
evidence of the decedent's support and there is no requirement under the LHWCA nor Section 152 of the
Tax Code that the claimant further substantiate her testimony with documentation (so long as the testimony
does not lack credibility). Angelle v. Steen Production Service, Inc., 34 BRBS 157 (2000).
23.3 SURVEILLANCE EVIDENCE
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that all information that is relevant
to a pending controversy should be disclosed unless it is privileged or enjoys immunity. The majority of
federal cases construing the scope of immunity for trial preparation materials hold that surveillance evidence
must be disclosed. See, e.g., Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505 (D. Haw. 1989);
Daniels v. National R.R. Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986); Martin v. Long Island R.R.
Co., 63 F.R.D. 53 (E.D.N.Y. 1974); but see contra Bogatay v. Montour R.R. Co., 177 F. Supp. 269
(W.D. Pa. 1959); Hikel v. Abousy, 41 F.R.D. 152 (D. Md. 1966).
In a case arising under the Jones Act, the Fifth Circuit has held that a surveillance videotape of
an injured worker's daily activities constituted substantive evidence subject to disclosure pursuant to
a discovery request. The trial court's admission of the tape solely for impeachment purposes, when the
evidence was in part substantive, constituted reversible error. Chiasson v. Zapata Gulf Marine Corp., 988
F.2d 513 (5th Cir. 1993), cert. denied, 511 U.S. 1029 (1994); cf. Harrison v. Taiwan Super Young Co.
Ltd., 105 F.3d 665 (9th Cir. 1997) (unpublished); see also Denty v. CSX Transportation, Inc., 168
F.R.D. 549 (E.D.N.C. 1996) (Fed.R.Civ.Pro. 26(a)(3) clearly excludes from pretrial discovery material
which will be used "solely for impeachment purposes;" the obvious rationale for excluding impeachment
material from discovery is that their disclosure would substantially impair their impeachment value.)
[ED. NOTE: Query--When, or how often, does evidence only have impeachment value and no
substantive value at all?]
Substantive evidence establishes the truth of a matter to be decided by the trier of fact.
Impeachment evidence is offered to discredit the witness and to reduce the effectiveness of the testimony.
The Court concluded in Chaisson that the tape, even if it had some impeachment value, should have been
disclosed since it also had some substantive value.
But see Wainwright v. Dawn Services, Inc., 1991 WL 197113, 1991 Lexis 13652 (E.D. La.
1991) (unpublished) (affirming U.S. Magistrate's denial to compel disclosure of tapes to be used as
impeachment evidence).
Photographic evidence such as motion pictures, videotapes and still pictures, may be admitted into
evidence if relevant to a material issue and properly authenticated. The decision whether to admit
surveillance films and the weight to be accorded such evidence are matters within the discretion of the
judge. Spectrum Arena v. Workmen's Compensation Appeal Bd., 51 Pa. Cmwlth. 381, 414 A.2d 445
(Pa. Commw. Ct. 1980) (the referee, in a back injury case, did not "capriciously disregard" a surveillance
film showing claimant carrying a shopping bag and going to visit neighbors).
An ALJ may consider video tapes and/or photographs in his decision and order. An ALJ
is not bound by common law or statutory rules of evidence or by technical rules of procedure. Thus, an
ALJ may investigate and conduct the hearing so as best to ascertain the rights of the parties. Walker v.
Newport News Shipbuilding and Dry Dock Co., 10 BRBS 101 (1979), aff'd 618 F.2d 107 (4th Cir.
1980), cert. denied 446 U.S. 943 (1980).
Such discretion is not unlimited, however, and an abuse thereof will result in a reversal. See, e.g.,
United States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1982); United States v. Harris, 534 F.2d 207 (10th
Cir. 1975), cert. denied, 429 U.S. 941 (1976).
In Westinghouse Electric Co. v. Workers' Compensation Appeal Board, 96 Pa. Cmwlth. 443, 507
A.2d 1287 (Pa. Commw. Ct. 1986), the court held that it was error to refuse to admit into evidence
surveillance films. Although the films were not admissible to establish that the claimant suffered no
disability, they were admissible to impeach the credibility of the claimant's evidence on the extent of his
disability.
The common law standard of admissibility for photographic evidence remains intact under the
Federal Rules of Evidence (FRE) as Rule 402 imposes a relevancy requirement and Rule 90(a) mandates
authentication or identification as a condition precedent to admissibility and this request is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent claims, i.e., that
the evidence accurately represents its subject. Moore v. Leaseway Transp. Corp., 49 N.Y.2d 720, 402
N.E.2d 1160 (1980).
Thus, otherwise probative motion pictures of a claimant's activities will be excluded, in the absence
of proper authentication. For example, where the camera person was not available to authenticate the
pictures and where his successor could not authenticate the full and complete movie account and where
the claimant "did not know" if he was the subject in the films, the proffered evidence was excluded.
General Accident, Fire & Life Assurance Corp. v. Camp, 348 S.W.2d 782 (Tex. Civ. App. 1961).
Motion pictures taken of the claimant after the injury were admitted, however, because the camera person
corroborated the film as an accurate depiction of what he had witnessed. Raban v. Industrial Comm'n,
25 Ariz. App. 159, 541 P.2d 950 (Ariz. Ct. App. 1975).
Once authenticated, any confusion or uncertainty over surveillance evidence goes to the weight of
the evidence, rather than its admissibility. Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192 (4th Cir.
1982).
[ED. NOTE: For a good discussion on surveillance in this area, see "The Use of Surveillance
Videos at the Formal Hearing From the Judge's Perspective" by District Chief Judge David W.
DiNardi (1993) and found on the OALJ web site, www.oalj.dol.gov, under "Longshore Speeches
and Memoranda."]
Evidentiary Value
If the purpose of surveillance films is to impeach a claimant's assertions as to the extent of his
disability, the degree of impeachment must be substantial to have any effect on the fact-finder.
Demonstrative evidence such as a surveillance film is, like all evidence, subject to interpretation and is
weighed along with all other evidence in the case.
Cases under the LHWCA, a humanitarian and beneficent statute, particularly are to avoid a "harsh
and incongruous result." There are times, however, when but one conclusion can be drawn from video
evidence under the LHWCA. In Phillips v. California Stevedore & Ballast Co., 9 BRBS 13, 16 (1978),
the judge relied primarily on the medical opinion of the independent examiner that the claimant could no
longer physically perform certain tasks.
The Board, however, after watching the same surveillance films as the judge, reversed the award
of benefits with these words:
The movie films, however, show claimant actually engaging in many of the
same physical tasks ... without any evident restriction or discomfort. It is
"patently unreasonable" to believe that the claimant can mount, dismount
and ride a horse but cannot climb and ascend from ships' ladders and
cargoes. To reach any other conclusion is to exult fantasy over reality.
9 BRBS at 16.
The evidentiary value of surveillance film is diminished if there is an attempt at improper influence
by evoking emotional responses instead of rational ones. Distortion can be intentional or inadvertent and,
sometimes, can result from the technical expertise of the photographer. Such distortion can be countered
by the other side's expert witness. All of these factors bearing upon the authenticity and reliability of the
evidence are considered by the judge as part of the evaluation process.
Two compensation cases will illustrate problems that have surfaced in reported cases. In Fee v.
Calcasieu Paper Co., 112 So.2d 439 (La. Ct. App. 1st 1959), videos of a claimant disabled by spinal
disc disease showing him shoveling gravel were not enough to justify reopening the case and terminating
benefits. In this case, the record reflected that elaborate detective work was done to induce the disabled
man to dig, to conceal cameras in fox holes and to spy on his other activities. The net result was to
convince the judge that the man was indeed disabled because he moved cautiously, used only his arms and
hands and never bent his back.
In another case, the activities recorded on surveillance films were apparently induced by payment
under the pretext that the claimant, in need of money at the time, was aiding in a criminal investigation. The
appellate court, however, held that the films were properly admitted because films "need not be taken with
either the knowledge or consent of the claimant," even if taken after the commencement of litigation.
Isadore v. Workmen's Compensation Appeal Bd., 77 Pa. Cmwlth. 346, 465 A.2d 1096 (Pa. Commw.
Ct. 1983).
Thus, the use of surveillance films at the formal hearing requires a balancing of the interests
protected by the work-product doctrine against the interest that would be advanced by disclosure. What
is good cause for discovery depends upon the reason a certain document is classified as work product and
the reason advanced for demanding discovery. This balancing of interests actually is a question of fairness
tempered by the basic concepts of the adversary system and the desirable aspects of pretrial discovery to
expedite the trial of a particular case.
23.4 ADMISSION OF HEARSAY EVIDENCE
Hearsay evidence is generally admissible if considered reliable. See Vonthronsohnhaus v. Ingalls
Shipbuilding, Inc., 24 BRBS 154 (1990), Richardson v. Perales, 402 U.S. 389 (1971). As hearings
before the administrative law judge follow relaxed standards of admissibility, the admission of evidence
depends on whether a reasonable mind might accept it as probative. Young & Co. v. Shea, 397 F.2d
185 (5th Cir. 1968), cert. denied, 395 U.S. 920 (1969). Hearsay evidence, where it possesses rational
probative force, may constitute substantial evidence to support an administrative finding. Camarillo v.
National Steel & Shipbuilding Co., 10 BRBS 54, 60 (1979).
In Colliton v. Defoe Shipbuilding Co., 3 BRBS 331, 335 (1976), the Board stated:
[U]nder the Administrative Procedure Act, evidence is not, because of its
nature as hearsay, automatically inadmissible in hearings before
administrative agencies subject to the Act. 5 U.S.C. § 556(d). ...
However, agency findings cannot be based solely on hearsay....
Ex parte medical reports may constitute substantial evidence without corroborating evidence
provided the opposing party is afforded the opportunity of cross-examining the physician. Avondale
Shipyards v. Vinson, 623 F.2d 1117, 1121-22 (5th Cir. 1980); Darnell v. Bell Helicopter Int'l, Inc., 16
BRBS 98 (1984), aff'd sub nom. Bell Helicopter Int'l, Inc. v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT)
(8th Cir. 1984).
The relaxed admissibility standard for hearsay evidence does not dispense with the right of cross-examination. Southern Stevedoring Co., Inc. v. Voris, 190 F.2d 275 (5th Cir. 1951). The opportunity
to cross-examine has been required in cases involving the introduction of ex parte medical reports.
Avondale Shipyards v. Vinson, 623 F.2d 1117 (5th Cir. 1980); Southern Stevedoring Co. v. Voris, 190
F.2d 275; Brown v. Washington Metro. Area Transit Auth., 16 BRBS 80 (1984), aff'd, 764 F.2d 926
(D.C. Cir. 1985); Darnell v. Bell Helicopter Int'l, Inc., 16 BRBS 98 (1984), aff'd sub nom. Bell
Helicopter Int'l, Inc. v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT) (8th Cir. 1984).
In Longo v. Bethlehem Steel Corp., 11 BRBS 654 (1979), the Board, relying on Richardson, 402
U.S. 389, upheld the admission into evidence of ex parte medical reports, despite their hearsay nature.
The Board reasoned that since the judge permitted a post-hearing deposition of the doctor to be taken, the
right of cross-examination by the adverse party was protected. The Board thus distinguished holdings by
the Fifth Circuit that ex parte reports were inadmissible where there was no opportunity to cross-examine. Southern Stevedoring Co., Inc., 190 F.2d 275. See Bethlehem Steel Corp. v. Clayton, 578
F.2d 113, 8 BRBS 663 (5th Cir. 1978).
In general, the Board will affirm the admission and consideration of an ex parte report where the
author is not biased and has no interest in the case, the opposing party has the opportunity to subpoena or
cross-examine the witness, including post-trial, and the report is not inconsistent on its face. Darnell, 16
BRBS at 100. See also Feezor v. Paducah Marine Ways, 13 BRBS 509 (1981) (Board reverses the
exclusion of ex parte reports by the ALJ on due process grounds).
[ED. NOTE: See Scott v. Flynt, M.D., 704 S. 2d 998 (S. Ct. of Mississippi 1996) (Held: Scope of
waiver of medical privilege in either a medical malpractice or personal injury action is limited to
information relevant to the injury placed in issue by plaintiff, and evidence obtained by opposing
party from ex parte contacts with patient's medical providers, without prior patient consent, is
inadmissible.) If such were applied to the LHWCA, would not the scope need to be wider than the
"relevant injury" so that the employer/carrier could inquire as to preexisting conditions in order to
develop a Section 8(f) claim? ]
Although procedural safeguards must be applied, the judge in this case could both admit the
relevant evidence and afford the opposing party the opportunity for rebuttal. Cf. Hughes, 17 BRBS at
155, where the Board upheld a judge's ruling admitting the transcript of an interview with a deceased
claimant.
The Board relied on Section 23(a) of the LHWCA which states:
Declarations of a deceased employee concerning the injury in
respect of which the investigation or inquiry is being made or the
hearing conducted shall be received in evidence and shall, if
corroborated by other evidence, be sufficient to establish the injury.
33 U.S.C. § 923(a). The requirement for an opportunity for cross-examination is not applicable to this
provision. This portion of Section 23(a) focuses on corroboration and a decedent's statements are not
corroboration. (However, the section does not say that uncorroborated statements by a decedent cannot
support a finding.)
Section 23 is a statutory recitation of the so-called "legal residuum" rule, which is that hearsay
evidence standing alone is not sufficient to support the judgment of an administrative tribunal unless there
is a residuum of legally admissible evidence to corroborate it. See B. Schwartz, Administrative Law (1976)
§§ 117-119; K.C. Davis, Administrative Treatise (1980) §§ 16.6-16.8.
[ED. NOTE: These authors discuss the viability of the legal residuum rule after Richardson v.
Perales, 402 U.S. 389 (1971). Davis believes the rule has been repudiated. Schwartz disagrees.]
In Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS 11 (CRT) (lst Cir. 1982), aff'g Sprague
v. Bath Iron Works Corp., 13 BRBS 1083 (1981), the court affirmed the Board's holding that the judge
properly excluded a letter written by a doctor to the employer's attorney under the work product rule of
Federal Rule of Civil Procedure 26(b)(3). The court noted that although the Federal Rules technically only
apply to proceedings to enforce or review compensation orders, see Fed. R. Civ. Proc. 81(a)(6),
application of Rule 26 (b)(3) is reasonable on policy grounds.
23.5 ALJ CAN ACCEPT OR REJECT MEDICAL TESTIMONY
[ED. NOTE: Determining the credibility of witnesses, including expert medical witnesses, is within
the purview of the ALJ and the Board must respect the judge's evaluation of all testimony. See also
infra, Topic 24.2 [Expert Witnesses].]
The judge is not bound to accept the opinion or theory of any particular medical examiner. The
judge may rely upon his/her personal observation and judgment to resolve conflicts in the medical evidence.
A judge is not bound to accept the opinion of a physician if rational inferences cause a contrary conclusion.
Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Ennis v. O'Hearne, 223 F.2d 755 (4th
Cir. 1955).
In Parks, 32 BRBS 90, the Board held that the judge's interpretation of the CAP/NIOSH
(Committee of the College of American Pathologists and the National Institute for Occupational Safety and
Health) criteria was supported by evidence. Specifically, the judge found that the interpretation of the
phrase "associated with," contained in the CAP/NIOSH report, can reasonably mean that asbestos bodies
need only be present on the same tissue slide, or in the same histologic section as the fibrosis in order to
be considered "associated with" the fibrosis and thus arrive at a diagnosis of asbestosis. (The employer's
expert required that the asbestosis bodies be imbedded in the fibrous tissue, or immediately adjacent to the
fibrous tissue in order for the asbestos bodies to be "associated with" the fibrosis.)
The judge, in Parks, 32 BRBS 90, found that sufficient doubt had been cast upon the employer's
expert's interpretation of the CAP/NIOSH criteria by other physicians and that no physician other than the
employer's expert directly disputed the diagnostic criteria under CAP/NIOSH employed by the claimant's
physicians and adopted by the judge. Thus, the judge concluded that the decedent had asbestosis and that
there was a causal nexus between the decedents's asbestos exposure and his death.
The trier of fact determines the credibility of the medical witnesses. Such determinations are to be
respected on appeal. John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961). The judge
determines the credibility and weight to be attached to the testimony of a medical expert. The trier of fact
can base one finding on a physician's opinion and, then, on another issue, find contrary to the same
physician's opinion on that issue. Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154 (1993)
(causation and disability are two separate issues, and ALJ may accept or reject all or any part of any
witness' testimony according to his judgment).
The judge is not required to accept the opinion or theory of a medical expert that contradicts the findings
of the adjudicator which are based on common sense. Avondale Indus., Inc. v. Director, OWCP, 977
F.2d 186 (5th Cir. 1992). It is within the ALJ's discretion to give more weight to the opinion of a doctor
who was able to provide an explanation for the claimant's pain than to a doctor who could offer several
possible theoretical reasons but could not relate the possible causes specifically to the claimant and did not
have an independent recollection of her. Cotton v. Army & Air Force Exchange Services, 34 BRBS 88
(2000).
The opinion of a treating physician that a claimant is unable to work at his former job is entitled to
greater weight than the opinion of a non-treating physician. Downs v. Director, OWCP, 152 F.3d 924,
(9th Cir. 1998) (Table)(July 10, 1998); see also Magallanes v. Bowen, 881 F.2d 747 (9th Cir.
1989)(Health and Human Services administrative law decision); Loza v. Apfel, 219 F.3d 378 (5th Cir.
2000)(Social Security administrative law decision).
It is solely within the judge's discretion to accept or reject all or any part of any testimony,
according to his judgment. Perini Corp. v. Hyde, 306 F. Supp. 1321, 1327 (D.R.I. 1969).
In DM & IR Railway Company v. Director, OWCP, 151 F.3d 1120 (8th Cir. 1998), the Eighth
Circuit found that, in Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court
did not diminish the scope of the fact-finding and credibility-determining roles traditionally assigned to ALJs.
Thus, the long-held standard that the LHWCA is to be liberally construed in favor of awarding
benefits survived the Collieries decision in all but "true doubt" situations where the ALJ
expresses doubt about which testimony to credit. For example, the ALJ was free to discredit the
testimony of a lay witness (owner of a fitness center) that contradicted the opinions of numerous medical
experts.
Medical evidence can constitute substantial evidence to support an employer's rebuttal of the
Section 20(a) presumption. Dearing v. Director, OWCP, 27 BRBS 72 (CRT) (4th Cir. 1993).
23.6 ALJ DETERMINES CREDIBILITY OF WITNESSES
[ED. NOTE: Determining the credibility of witnesses, including expert medical witnesses, is within
the purview of the ALJ and the Board must respect the judge's evaluation of all testimony. See also
infra, Topic 24.2 [Expert Witnesses] ]
In U. S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631
(1982), the claimant contended that he awakened the morning of November 20th with severe pains in his
neck, shoulders, and arms. Subsequently, he filed a claim under the LHWCA alleging that he had sustained
an injury during the course of his covered employment the day before. The judge discredited the claimant's
testimony and the corroborating testimony of a co-worker who claimed to have witnessed the accident and
found that a work-related accident never occurred November 19th. The D.C. Circuit remanded on the
basis that the "injury" which occurred the morning of November 20 was entitled to the Section 20(a)
presumption.
The Supreme Court reversed the D.C. Circuit by holding that the claimant had alleged an injury
at work November 19th. Since the judge had found that no work-related injury occurred on that date,
there was no basis for invoking the Section 20(a) presumption for the "injury" which arose in bed. "The
statutory presumption is no substitute for the allegations necessary to state a prima facie case." Id. at 616.
Implicit in this holding is the authority of the judge to assess the credibility of each witness, including a
claimant, even as to the existence of a work-related accident or injury. See also Sharp v. Marine Corps
Exch., 11 BRBS 197 (1979).
The Fifth Circuit sustained a credibility determination which was "tenuous, credulous and unwise,"
but corroborated by substantial evidence in the record. Plaquemines Equip. & Mach. Co. v. Neuman, 460
F.2d 1241, 1242 (5th Cir.), cert. denied, 409 U.S. 914 (1972).
It is solely within the judge's discretion to accept or reject all or any part of any testimony,
according to his judgment. Perini Corp. v. Hyde, 306 F. Supp. 1321, 1327 (D.R.I. 1969). The ALJ is
not bound by the opinion of one doctor and can rely on the independent medical evaluator's opinion and
evidence from the medical records over the opinion of the treating doctor. Duhagan v. Metropolitan
Stevedore Co., 31 BRBS 98 (1997).
The Board should not interfere with credibility determinations made by an ALJ unless they are
"inherently incredible and patently unreasonable." Cordero v. Triple A Machine Shop, 580 F.2d 1331,
1335, 8 BRBS 744, 747 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); Phillips v. California
Stevedore & Ballast Co., 9 BRBS 13 (1978). In Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941
(5th Cir. 1991), 25 BRBS 78 (CRT)(1991), the Fifth Circuit found that the Board had exceeded its
statutorily defined powers of review: " The Board impermissibly reweighed the evidence and made its own
credibility determinations." The court noted that all of the ALJ's determinations were amply supported by
the record. The ALJ had clearly explained that he chose not to rely on the evidence tending to show that
the claimant could physically perform certain jobs because he did not rely on certain testimony. He further
explained that he found the doctors' opinions on employment potential unrealistic because those opinions
failed to consider the pain endured by the claimant.
The Board has upheld an ALJ's admission of a claimant's criminal record and history of lying where
the ALJ determined that this evidence was relevant to his claim of stress disorder, since in diagnosing the
claimant's psychiatric conditions, the doctors relied on what the claimant told them. Houghton v. Marcom,
Inc., (BRB Nos. 99-0809 and 99-1315)(April 25, 2000)(Unpublished)(criminal record and history of lying
were properly admitted as this evidence was relevant to claimant's trustworthiness as a witness), 33 BRBS
711 (ALJ) (1999)..
23.7 ALJ MAY DRAW INFERENCES BASED ON EVIDENCE PRESENTED
Section 557 of the APA, 5 U.S.C. § 557, applies when hearings are conducted in accordance with
5 U.S.C. § 556. Section 557(c)(3)(A), requires that decisions rendered under the APA include a
statement of "findings and conclusions, and the reasons or basis therefor, on all material issues of fact, law,
or discretion presented in the record." The rule is designed to allow reviewing bodies to carry out their
function of determining whether decisions have been made according to the applicable statutes. Atchison,
Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800 (1973).
The judge must detail adequately the rationale behind the decision, and articulate why specific
medical evidence was relied upon. Williams v. Newport News Shipbuilding & Dry Dock Co., 17 BRBS
61 (1985); Whittington v. National Bank of Washington, 12 BRBS 439 (1980); Corcoran v. Preferred
Stone Setting, 12 BRBS 201 (1980). The judge should also analyze independently and discuss the
medical evidence. The failure to do so will violate the APA's requirement for a reasoned analysis.
Williams, 17 BRBS 61; Frazier v. Nashville Bridge Co., 13 BRBS 436 (1981). The incorporation of
factual and legal assertions from the brief of a party by the judge is impermissible if it fails to reflect an
independent review of the evidence by the judge. Williams, 17 BRBS 61.
The Board has remanded cases for clarification where the judge made conclusory findings of fact
without comment on conflicting evidence or without explicit acceptance or rejection of parts thereof.
Williams, 17 BRBS 61; Williams v. Nicole Enters., 15 BRBS 453 (1983); Bonner v. Ryan-Walsh
Stevedoring Co., Inc., 15 BRBS 321 (1983); Frazier v. Nashville Bridge Co., 13 BRBS 436 (1981);
Willis v. Washington Metro. Area Transit Auth., 12 BRBS 18 (1980).
The Board has also remanded in cases where the judge neglected to make specific fact-findings
in applying the LHWCA, or made ambiguous findings. Jones v. Midwest Mach. Movers, 15 BRBS 70
(1982); McDevitt v. George Hyman Constr. Co., 14 BRBS 677 (1982); Grimes v. Exxon Co., U.S.A.,
14 BRBS 573 (1981); Bentley v. Sealand Terminals, 14 BRBS 469 (1981); Shoemaker v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 141 (1980); Moore v. Paycor, Inc., 11 BRBS 483 (1979). It
has also remanded where the judge failed to address issues raised by the parties during the hearing. Wade
v. Gulf Stevedore Corp., 8 BRBS 335 (1978).
In other instances, the Board has directed the judge to make additional findings of fact or to provide
a more complete rationale for the conclusions. See generally Betz v. Arthur Snowden Co., 14 BRBS 805
(1981); Whitlock v. Lockheed Shipbuilding & Constr. Co., 12 BRBS 91 (1980); Lozupone v. Stepheno
Lozupone & Sons, 12 BRBS 148 (1979). In general, an order of a judge must contain a sufficient rationale
for the appellate tribunal to discern the reasons for the findings and thereby assess whether they are
supported by substantial evidence and are in accordance with the law. Corcoran v. Preferred Stone
Setting, 12 BRBS 201 (1980).
At the same time, however, appellate tribunals should not "review decisions in order to perfect the
administrative process to the nth degree." Administrative decisions should be affirmed, even when the
findings lack clarity, if the reasoning can be discerned. Alabama Power Co. v. Federal Power Comm'n,
511 F.2d 383, 392 (D.C. Cir. 1974). See, e.g., Richardson v. Safeway Stores, Inc., 14 BRBS 855
(1982); Hodgson v. Kaiser Steel Corp., 11 BRBS 421 (1979); Caudle v. Potomac Elec. Power Co., 9
BRBS 502 (1978), aff'd, 612 F.2d 586 (D.C. Cir. 1980).
In determining the facts, the adjudicator operates under the statutory policy of resolving all doubtful
fact questions in favor of the injured employee. Strachan Shipping Co. v. Shea, 406 F.2d 521, 522 (5th
Cir.) (per curiam), cert. denied, 395 U.S. 921 (l969); Young & Co. v. Shea, 397 F.2d 185, 188-89 (5th
Cir. 1968), cert. denied, 395 U.S. 920 (1969). But see Topic 23.7.1, infra, on the inapplicability of the
"true doubt" rule to LHWCA cases when the evidence is evenly balanced.
After ascertaining and articulating the basic facts, it is the prerogative of the judge to draw
inferences therefrom. Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 (1947). In Cardillo, the United
States Supreme Court upheld the prerogative of the adjudicator to determine whether the injury occurred
during the course of employment based on inferences from the basic facts. The Court stated:
In determining whether a particular injury arose out of and in the course
of employment, the Deputy Commissioner must necessarily draw an
inference from what he has found to be the basic facts. The propriety of
that inference, of course, is vital to the validity of the order subsequently
entered. But the scope of judicial review of that inference is sharply
limited. ... If supported by evidence and not inconsistent with the law, the
Deputy Commissioner's inference that an injury did or did not arise out of
and in the course of employment is conclusive. No reviewing court can
then set aside that inference because the opposite one is thought to be
more reasonable; nor can the opposite inference be substituted by the
court because of a belief that the one chosen by the Deputy Commissioner
is factually questionable.
330 U.S. at 477.
If the order of the judge is supported by substantial evidence on the record as a whole and is in
accordance with the law, it must be affirmed by the Board. The review by an appellate court is limited to
determining whether the Board concluded correctly that the order of the judge complied with that standard.
Avondale Indus., Inc. v. Director, OWCP, 977 F.2d 186, 189 (5th Cir. 1992).
The substantial evidence standard is less than a preponderance of the evidence. It is not necessary
that the conclusions of the judge constitute the sole inference that can be deduced from the basic facts. The
judge determines the credibility of witnesses and of conflicting medical evidence. Avondale, 977 F.2d 186.
The inference must be based, however, on the evidence, or the adjudicator abuses its discretion. Ennis v.
O'Hearne, 223 F.2d 755 (4th Cir. 1955).
23.7.1 The "True Doubt" Rule Is Inconsistent with § 7(c) of the Administrative
Procedure Act
Prior to the Supreme Court decision of Director, OWCP v. Greenwich Collieries, (Maher
Terminals), 512 U.S. 267, 28 BRBS 43 (CRT) (1994), in adjudicating benefits claims under the LHWCA,
the Department of Labor applied what it calls the "true doubt" rule. Invocation of the true doubt rule
allowed a claimant to prevail despite a failure to prove entitlement by a preponderance of the evidence, i.e.,
when the evidence was evenly balanced, the benefits claimant prevailed. However, in Greenwich
Collieries, the Supreme Court held that an injured worker claiming compensation under the LHWCA must
prove the elements of his claim by a "preponderance of the evidence." 512 U.S. 267.
[ED. NOTE: The "true doubt" rule had previously been applied in Longshore cases to assist the
claimant when the evidence in the record was of equal weight, favoring neither the claimant nor
employer. Greenwich Collieries, by holding that claimants can prevail only if they meet their burden
of proof by a preponderance of evidence without the assistance of the true doubt rule, significantly
affects Longshore procedure and puts an end to what many have called a "longshore common law"
practice. However, one must note that at least one circuit court has found that Greenwich Collieries
did not diminish the scope of the fact-finding and credibility-determining roles traditionally assigned
to ALJs. DM & IR Railway Company v. Director, OWCP,151 F.3d 1120 (8th Cir. 1998). Thus, the
long-held standard that the LHWCA is to be liberally construed in favor of awards benefits survived
the Collieries decision in all but "true doubt" situations where the ALJ expresses doubt about which
testimony to credit. For example, the ALJ was free to discredit the testimony of a lay witness
(owner of a fitness center) that contradicted the opinions of numerous medical experts. DM & IR
Railway.]
The Court in Greenwich Collieries held that Section 7(c) of the Administrative Procedure Act
(APA), 5 U.S.C. § 556(d), which places the "burden of proof" on a proponent of the rule or order, applies
to cases arising under the LHWCA. Id. Thereafter, the Court found that the application of the true
doubt rule is inconsistent with § 7(c) of the APA because it eases the claimant's burden of proving the
validity of his claim. Id. Section 7(c) of the APA states in pertinent part that:
Except as otherwise provided by statute, the proponent of a rule or order has the burden
of proof....
5 U.S.C. § 556(d) [Section 7(c)] (emphasis added).
[ED. NOTE: Thus, while the "true doubt" rule may not necessarily violate the APA in principle,
it specifically does violate APA practice when applied to the LHWCA because the LHWCA itself
does not statutorily provide for a "true doubt" rule.]
The invalidation of the true doubt rule by Greenwich Collieries affects the amount of proof
necessary for an expert medical opinion to support a contested claim. See, e.g., Holmes v. Universal
Maritime Service Corp., 29 BRBS 18, 21, n.3 (1995) ("The holding in Greenwich Collieries does affect
the issue of whether causation is established on the record as a whole"); see also Keele v. Joint Port Labor
Relations Committee, 29 BRBS 99, 106 (ALJ) (1995) (Claimant failed to meet his burden of proof that
his stroke was due to his employment, based on Greenwich Collieries).
23.8 ALJ MAY ACCEPT OR REJECT AMA GUIDES UNLESS REQUIRED
The 1984 Amendments to the LHWCA include a requirement that determinations of hearing loss
shall be in accordance with the Guides to the Evaluation of Permanent Impairment of the American Medical
Association. See 33 U.S.C. § 908(13)(E). Prior to that statutory modification, the Board had held that,
as the judge has discretion to accept or reject medical testimony, that discretion applied to the utilization
of the A.M.A. Guides in determining scheduled disabilities. Robinson v. Bethlehem Steel Corp., 3 BRBS
495 (1976).
In Fisher v. Strachan Shipping Co., 8 BRBS 578 (1978), the Board upheld the decision of the
judge not to follow the A.M.A. Guides. In Jones v. I.T.O. Corp. of Baltimore, 9 BRBS 583 (1979), the
Board sustained the order of the judge which was influenced by the A.M.A. Guides. Hearing loss is the
only determination which the LHWCA requires to be in accordance with the A.M.A. Guides.
23.9 FORMAL HEARINGS WILL BE TRANSCRIBED
All formal hearings before a judge shall be mechanically or stenographically reported. Copies may
be obtained from the official reporter by the parties and the general public. Corrections of the official
transcript may be approved by the judge for "errors of substance." 29 C.F.R. § 18.52.