Submitted Nov. 27, 2013.
Brent I. Clark, Seyfarth Shaw LLP, Chicago, IL, for Petitioner.
Allen H. Bean, Department of Labor Office of the Solicitor, Chicago, IL, Ray Darling, Jr., Occupational Safety & Health
Review Commission, Washington, DC, for Respondent.
Stephen A. Yokich, Cornfield & Feldman Chicago, IL, for Intervening Respondent.
Before BAUER and EASTERBROOK, Circuit Judges, and CHANG, District Judge.[*]
EASTERBROOK, Circuit Judge.
The first time this case was here, we held that an administrative law judge erred by failing to consider evidence undermining the view espoused by the expert whose testimony the ALJ accepted. We remanded so that this evidence could be addressed. Caterpillar Logistics Services, Inc. v. Solis, 674 F.3d 705 (7th Cir.2012). On remand, the ALJ again held that Caterpillar Logistics must pay a penalty for failing to report an injury as work-related, 2012 OSAHRC LEXIS 118 (Oct. 9, 2012), and the Occupational Safety and Health Review Commission again declined to review the ALJ's decision. 2012 OSAHRC LEXIS 119 (Nov. 20, 2012). Caterpillar has filed another petition for judicial review.
One of Caterpillar's workers, MK, developed epicondylitis. (Epicondylitis is an inflammation of one or more tendons near the elbow. Epicondylitis of the outer elbow is known colloquially as tennis elbow and epicondylitis of the inner elbow as golfer's elbow, though most instances are unrelated to sports.) A regulation requires employers to report injuries to the Department of Labor if " the work environment either caused or contributed to the resulting condition" . 29 C.F.R. § 1904.5(a). MK's work environment was a packing department, where workers remove items from containers and place them in boxes for shipping. That job requires repetitive hand movements and turning (pronation) of wrists, elbows, and shoulders. Caterpillar convened a five-person panel, which included three board-certified specialists in musculoskeletal disorders. Relying on guides issued by the National Institute for Occupational Safety and Health and the American Medical Association— both of which conclude that repetitive motion plus force (weight or impact) can cause epicondylitis, and that pronation plus force also can cause the condition, but that repetitive motion alone does not— the panel concluded that work in the packing department could not have caused MK's epicondylitis.
The Secretary of Labor does not contend, and the ALJ did not find, that MK's tasks entailed " force" within the meaning of these guides. At a hearing, several experts supported the conclusion of Caterpillar's panel not only on the basis of the guides but also by reference to epidemiological studies, which had found no relation between epicondylitis and repetitive motion unless the motion entailed force, and by reference to Caterpillar's own experience. Just one worker in the packing department's history (MK herself) has developed epicondylitis, and the experts thought that this demonstrates that the sort of tasks performed there do not cause or contribute to epicondylitis.
Against this, the Secretary offered a single witness: Robert Harrison, a Clinical Professor of Medicine at the University of California at San Francisco. He acknowledged that the packing department is a light-force environment but testified that, nonetheless, the combination of moderate repetition plus pronation of the wrist, hand, and forearm must have caused MK's condition. He did not explain, however, why if this is so no other worker in the history of Caterpillar Logistics' packing
operations has been troubled by epicondylitis. Nor did he discuss any epidemiological study, pro or con. Harrison's view appears to be one that few if any other specialists espouse, but the ALJ accepted it. In doing so the ALJ, like Harrison, ignored the epidemiological studies and Caterpillar's experience. That is why we remanded for further proceedings. We held that Caterpillar had failed to exhaust its administrative remedies with respect to the epidemiological studies, which it did not call to the Commission's attention, but that it had preserved an objection to the ALJ's disregard of the experience of its own packing department.
After disposing of some preliminary matters that we need not mention, the ALJ began his discussion of Caterpillar's experience by asserting that our decision rests on a legal error and is " inconsistent with the statutory and regulatory scheme for recording injuries" . 2012 OSAHRC LEXIS 118 at *27. He called Caterpillar's experience " purported" countervailing evidence and asserted that it is entitled to little weight because, among other things, other employers will not necessarily have a " sufficient amount of operating history to establish whether [their] experience of a particular injury is consistent with, or in excess of, incidence rates in the general population." Id. at *28. The ALJ then observed that Dr. Harrison had testified that " a finding that epicondylitis occurred at [Caterpillar] at a rate greater than that of the general population would confirm his finding that [the worker's] epicondylitis was work-related; however, he also stated that the historical data is not a consideration as to whether a particular incidence of epicondylitis is work-related" . Id. at *29 (emphasis in original). In other words, Harrison stated that an ...