Wednesday, October 10, 2012

A Difficult Lesson in Substantial Evidence

Substantial - that's the evidentiary standard that governs the vast majority of workers' compensation litigation.

The standard of substantial evidence means that the evidence upon which the trier of fact relies can reasonably support the proposition for which it is raised, regardless of what other evidence is out there, and whether or not other evidence may be more persuasive.

In other words, the substantial evidence standard simply asks if the evidence relied upon by the judge is "good enough."

Which is why, in most circumstances, if one is not happy with the trial judge's decision based on the evidence, one should not make an evidentiary challenge unless one can prove fraud, bias or a clearly erroneous conclusion. Attempting to challenge substantial evidence is nearly always an expensive loser.

A Louisiana employer found that out and paid an additional penalty for doing so.

Dustin Estis claimed he injured his back when he fell down a flight of stairs while working for Ambar Lone Star Fluid Service. Estis called a co-worker to assist him after he was unable to get up after the fall. The co-worker called Estis' supervisor, who took Estis to a company physician.

Dr. Gregory Gidman noted tenderness in Estis' back, but found no bruises. An MRI showed a herniated disc and a lumbar bulge. Gidman referred Estis to a neurosurgeon. Estis also visited a physician's assistant and a doctor at Teche Occupational Medical Clinic. Both professionals observed contusions consistent with a fall. Estis chose Dr. John Cobb as his orthopedic surgeon and continued treatment for his injury.

At a contested case hearing Ambar disputed that Estis suffered a work-related injury. A workers' compensation judge found in favor of Estis and awarded $8,000 in penalties and $12,000 in attorney fees.

On Ambar's appeal, the 3rd Circuit Louisiana Court of Appeals noted that Dr. Gidman's report finding no bruises on Estis' back was rebuffed by two other medical professionals, and concluded that the judge's decision to find a compensable injury was not erroneous. In other words, the workers' compensation judge's findings were supported by substantial evidence (the appellate court does not use this term in its opinion, but it is clearly the evidentiary standard that is applied on review).

Similarly, the appellate court was not swayed by the employer's argument that Estis' claim should have been rejected because his story of events varied slightly over time, and Dr. Gidman's initial report showed no contusions, scrapes or scratches. The court said that Estis' version of events was corroborated by Ambar's safety officer, and the two medical professionals at Teche Occupational Medical Clinic found bruises consistent with a fall:

"The record reveals that Ambar has substituted suspicion and innuendo for facts and evidence. Unfortunately, neither of those imposters are sufficient to reasonably controvert Estis' claim."

Ambar was upset that the workers' compensation judge awarded Estis' attorney $12,000 in fees. Big mistake. The employer's appeal cost it an additional $16,000 in fees payable to the claimant's attorney for a total attorney fee award of $28,000.

Lesson for employers/carriers - don't mess with substantial evidence.

Case: Estis v. Ambar Lone Star Fluid Service, Nos. 12-206, consolidated with 12-207, 10/03/2012.

1 comment:

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