Legitimate Doubt in the Worker's Compensation System
Recently, I have had two different decisions from the Wisconsin Court of Appeals concerning an interpretation of whether legitimate doubt exists in a Worker's Compensation claim. While an article such as this normally addresses recent case law developments, both in preparing those cases and in reviewing the decisions, it has occurred to me that the area of what constitutes a "legitimate doubt" is probably one of the most difficult concepts to understand when all of the case law and statutory framework is considered. To put it another way, there exists a legitimate doubt in the Worker's Compensation System as to when and how the "legitimate doubt" standard is or can be utilized.
One of the fundamental tenets of the Worker's Compensation System at least on paper has been that whatever the statutory or administrative framework, the burden of proof still rests on the applicant. Those practitioners of Worker's Compensation are all too familiar with the hurdle that confronts a litigant in an effort to overturn a decision of LIRC. Intermixed in this process however, it is the concept of "legitimate doubt". Where there exists a legitimate doubt, Wisconsin Courts have determined that it becomes the duty of LIRC to deny the claim because the applicant has failed to sustain his or her burden of proof. This was set out in the leading case concerning legitimate doubt of Bumpas vs. Dilhr, 95 Wis.2d, 334, 290 N.W.2d 504 (1980). However, while the Bumpas case does set forth a useful tool In analyzing a Worker's Compensation claim, the application is not so consistent.
The question of what constitutes a "legitimate doubt" must necessarily include an evaluation of what is and is not legitimate. With any case there is always some doubt. In order to deny an application because of a failure to meet the burden of proof, courts properly require LIRC to find a legitimate doubt. It is not an absolute doubt or a extreme doubt but rather a legitimate doubt. Wisconsin Courts have attempted to further define the scope of a legitimate doubt as requiring LIRC to base an award of benefits that is beyond mere possibility or speculation. White vs. LIRC 2000, 239 Wis. 2d 505, 620 N.W.2d 442,(Ct App 2000). Therein lies the problem. The standard of legitimate doubt seemingly requires the applicant to present a claim that succeeds based on the preponderance of evidence as is seen in civil litigation yet Courts will not disrupt the LIRC finding unless it is based on mere possibility or speculation.
One of the two cases I litigated before the Court of Appeals involved a claim in which the treating doctor originally authors a report that indicates that there was no work related injury. That same treating doctor later submitted a 16-B upon which the appropriate box was checked identifying that it was a work related injury. With the doctor not testifying and with LIRC only having to review the pieces of papers before it, does not the existence of one credible medical report from a doctor, which contradicts another medical report from that same doctor create a legitimate doubt? Bumpas tells us that a legitimate doubt exists where there is some inherent inconsistency or conflict in the testimony. If the treating doctor has given two different versions, is there not a legitimate doubt as to the claim, thereby requiring a denial of benefits? The Court of Appeals did not so hold.The second case before the Court of Appeals has LIRC determining that the applicant showed signs of symptom magnification and was essentially untruthful in his testimony. The LIRC determined that legitimate doubt existed as to benefits but only as it pertains to a claim for benefits above ten percent PPD. In other words, LIRC made the threshold determination of legitimate doubt but determined that the legitimate doubt only comes into play on certain benefits, in this case an arbitrary line of those above ten percent. The Courtof Appeals did not see this as a problem.
The Bumpas case sets forth a fairly high standard that requires the dismissal of the application where there exists a legitimate doubt. The Bumpas case also imposes upon a reviewing court the obligation to Determine whether there exists sufficient evidence to establish a legitimate doubt. It would appear that this is a threshold test which LIRC and a reviewing court must undertake. However, while courts have determined that LIRC cannot rely on its "cultivated intuition" (see Leist vs. LIRC 183 Wis.2nd 450, 515 N.W. 2nd 268 1994), those same courts also are quick to identify that the findings of LIRC are conclusive as long as they are supported by substantial and credible evidence at set forth in 102.23(6). (See also Bretel vs. LIRC 104 Wis. 2nd 93, 553 N.W. 2nd 550, Court of Appeals 1996). The problem exists where a particular case confronts LIRC with substantial and credible evidence that can be interpreted differently. While LIRC is given the ability to determine and evaluate the weight and credibility of the evidence, it cannot do so at the expense of the legitimate doubt test set forth by the courts in the State of Wisconsin.
The substantial and credible evidence tests which parties are confronted with are inconsistent and perhaps even insurmountable at times. There is no question that LIRC has the discretion and has been yielded the power to evaluate the weight and credibility of evidence. However, there is no meaningful appeal if notions of legitimate doubt are secondary to the catchall finding that there exists substantial and credible evidence in the record. There can exist in the record substantial and credible evidence but so long as Courts in Wisconsin recognize that LIRC must deny a claim where there exists a legitimate doubt, more is required in the record than substantial and credible evidence. There must be such a level of substantial and credible evidence that there no longer exists a legitimate doubt.