If you're not Perry Mason, Bring Evidence

Friday, June 7, 2013 | 0

So long ago on a playground far, far away, children engaged in arguments on so many topics, hoping to persuade one another with such retailing logic as “oh huh.” There is little to be gained in an argument or discussion which centers on “yes it is” versus “no it’s not.” The classic “he said, she said” presents a dichotomy to the judge which is difficult at best. Saying it is or it is not does not in itself persuade. It reinforces that there is disagreement, but it does not describe or illuminate that disagreement. At the end of a trial, it should be apparent both how the party feels or believes, but also why.

The judge’s compensation order must be based upon conclusions that are supported by competent and substantial evidence. Too often, litigants present for trial without the necessary evidence to prevail. This happens when corners are cut, or issues are missed, and it happens to the best of attorneys. For example, the medical treatment records may be admitted pursuant to Fla. Stat. §440. 29 (4), however those medical records may not contain the ultimate conclusions required by Fla. Stat. §440.08, Fla. Stat. §440.13 or Fla. Stat. §440.15, to prevail upon the claim for benefits.

Has the expert stated in those records that the conclusions are “to a reasonable degree of medical certainty, based on objective relevant medical findings” for example? Has the expert stated in those records that the recommended care is “medically necessary” and/or “in accordance with established practice parameters and protocols of treatment?” If these elements are not stated in the medical records, counsel may consider something more in the evidentiary foundation, such as a deposition of the provider, to explain conclusions and establish statutory foundations.

Certainly it is possible to prevail in a dispute through cross-examination. I have seen it done, but not often. As an example, an expert witness conclusion, necessary under Fla. Stat. §440.13 to establish compensability, might be completely disregarded by the judge if, on cross-examination, the expert were to admit that the opinions rendered are not based upon fact or are not supported by medical findings. Alternatively, the cross examiner might be successful in getting the expert to admit that she or he is in fact not a doctor, or not an expert or is a visitor from another planet. These instances in which cross-examination will so completely erode the witness’ foundation are few. Perry Mason could do it every week. We were all entertained when people broke down on the witness stand under Perry’s withering glare. This is simply not how it works in the real world in the vast majority of cases.

Litigants should not count upon cross-examination to carry the day. In most instances the “burden of proof” party presents for trial with a measure of evidence, upon which a judge could rule in their favor. These instances provide the foundational “competent substantial evidence” or “CSE” upon which a sustainable order could be based. Conversely, in many instances, the party without the burden of proof presents with no evidence, and hopes to prevail simply upon the cross-examination of the other party’s evidence. In most instances, this is likely to be a recipe for failure.

In many instances, it is the claimant that has the burden of proof. It is the claimant who comes to trial seeking medical or indemnity benefits, and in order to prevail the claimant must present evidence of entitlement to these benefits. This is not always the case. We are also presented with situations in which the employer or carrier bears the burden of proof. Allegations of misrepresentation pursuant to 440.105, allegations of entitlement to prevailing party costs, allegations of entitlement to attorney’s fees as sanction, and allegations of entitlement to reimbursement, contribution, or exoneration by some other employer and/or carrier are all instances in which the employer/carrier will come to the hearing room with the burden of proof.

Regardless of which party bears the burden of proof, it is critical that the opposing party recognize that their defense or resistance should ordinarily include presentation of substantive evidence. Certainly, it is possible that the defending party may so critically impair the moving party’s evidence, that substantive opposing evidence is not required. However it is not likely a good bet.

If the moving party presents medical evidence supporting their allegation, in most instances that evidence should be met with contradictory evidence if that party hopes to prevail. If the treating physician opines that an injury is causally related to the accident, the defense may attack that opinion through cross. However, the defense is far more likely to prevail if it presents contrary CSE, through another medical opinion. There are those who resist this logic and argue that perhaps many medical opinions should be disregarded because of their very lack of foundation or supporting science. The failure of this logic is that such an attack is unlikely to proceed unless the science (or lack) is explained through the testimony of another expert. It will be unlikely that scientific failings in expert conclusions will be so within the Judge’s expertise, and thus subject to discredit absent such contrary scientific evidence.

As an example, the burden of proof party comes to trial with a physician’s deposition and records, which state the conclusion that there was a work injury, that it requires specific care, and that there is some period in which disability is appropriate. If these opinions are explained by the expert and are not contradicted, they are likely to be adopted by the Judge. That the opposing attorney disagrees with those opinions will not change the outcome. That the opposing attorney propounds Perry Mason questions to that expert will not likely change that outcome. Unless the withering cross results in that expert conceding error or withdrawing her/his opinion, the conclusions and opinions will remain uncontradicted.

If the burden of proof party brings vocational expert testimony to trial, it is likely that contradictory expert vocational testimony will be required in order to successfully resist that claim. This is no different than the medical question example posed above. Unless the cross-examination is effective in changing that expert’s testimony, those vocational opinions are likely to stand at the end of trial uncontradicted.

Likewise, if the burden of proof party comes to trial to prove misrepresentation, it is likely contrary evidence will be required to contradict that foundational evidence. This might be as simple as the testimony of the party accused of misrepresentation. It may be the testimony of the person(s) to whom alleged misrepresentations were made.

Certainly, it is less expensive to respond to allegations in a case without hiring these experts or deposing these witnesses. Certainly, it may be cheaper to defend a permanent total disability claim without hiring a vocational expert, or to defend a misrepresentation without some person being subpoenaed for trial. However it is a troublesome gamble to proceed to trial in hopes that the prosecuting party will not present competent substantial evidence to support their allegations. It is a similar gamble to proceed to trial in hopes that your Perry Mason cross-examination will so erode the other party’s evidence that you will prevail without evidence of your own.

I am not saying that it cannot happen. It just seems to not be the way to bet. It may be like winning an argument with the schoolyard "oh huh" argument.

David Langham is deputy chief judge for the Florida Office of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.