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One of the oft-repeated challenges of legal analysis is burdens of proof. The concept is confounding to many, sometimes even lawyers. In American litigation, much depends upon the burden of proof. Those who are familiar with the great American pastime, baseball, may be familiar with the oft-repeated "the tie goes to the runner." According toThe Hardball Times, this is an "age old adage." Despite that "age old" status, there are those who find no support therefore in the actual rules of baseball. Others go so far as to label it a myth.
In 2007, the Florida First District explained the burden of proof in Mitchell v. XO Communications, 966 So. 2d 489 (Fla. 1st DCA 2007). There, the injured worker sought permanent total disability benefits. When he did not prevail at trial, he sought review by the Court. He asserted that the trial judge's conclusions were not supported by "competent substantial evidence."
There are a number of "standards of review" that are employed by appellate courts. Three of them account for the vast majority of workers compensation cases. First, the court may question whether the trial judge abused discretion. Second, on questions of law, the court will interpret the law with no deference to the trial judge's conclusion; this is called de novo. Finally, as regards conclusions of fact (it did or did not happen, the worker is or is not employable, etc.), the court examines whether there is "competent substantial evidence" to support the trial judge's conclusions.
In Mitchell, the Court noted that an injured worker "has the burden to prove entitlement to" benefits. To do so, the worker "must present evidence the JCC finds persuasive." The Court reminded that the trial judge, the JCC, "may reject in whole or in part even uncontroverted testimony" if it is disbelieved or not credible. This applies to factual or even to expert medical testimony. A JCC may disbelieve and reject even expert testimony, but is not empowered to "make medical findings which contradict undisputed medical testimony." That last is a distinction some may struggle with.
The Court concluded Mr. Mitchell's arguments on appeal were not persuasive. It noted that Mr. Mitchell contended
"that many of the JCC's findings regarding his ability to work, and the permanent impairment ratings (PIR) attributable to his compensable injury, are not supported by competent, substantial evidence."
But, the Court explained: "a decision in favor of the party without the burden of proof is not required to be supported by competent, substantial evidence."
Mr. Mitchell prevailed on the appeal nonetheless. The Court concluded that the JCC either rejected or misstated expert testimony in the trial order. Whether the judge rejected testimony was not clear. As a result of the lack of clarity in the order, the Court concluded that the order was "inconsistent in its findings of fact and conclusions of law.
Those statements, or at least the specific statements recited by the Court, involved issues such as permanent impairment rating. The JCC both accepted experts' opinions on the subject and contradicted the experts' opinions elsewhere in the order. For that reason, the Court reversed for further proceedings.
The decision, written by Judge Hawkes, provides insight into the challenge that comes with the burden of proof. A party with the burden of proof, to prevail, must demonstrate the necessary facts at trial. Those facts required by the law for an award of benefits must be supported by competent substantial evidence. However, a judge might conclude that the evidence submitted in that hope do not survive scrutiny or cross-examination. Thus, a claim could fail even if there is no substantive evidence to the contrary.
For example, a physician might render an opinion regarding an injured worker having reached maximum medical improvement. But, that physician's records, other testimony, or explanations under cross-examination might undermine her or his conclusions. It is also possible that the cross-examination might undermine the physician more broadly on subjects such as medical expertise (some opinion is not within her or his area of practice), diagnostic testing (a diagnosis made without some test she or he also testified is necessary for a conclusion), or otherwise.
Upon return to the trial Judge in Mitchell, a new compensation order was entered. That too was appealed to the First District, and reviewed by a different panel of judges. There have been those who asked why such a subsequent review would not return to the same panel; essentially, the logic is for each new appeal to be assigned to a panel without reference to the case history. Judge Allen wrote the Court's second opinion in what was referred to as "Mitchell II."; Mitchell v. XO Communications, 3 So. 3d 1278 (Fla. 1st DCA 2009). The Court there concluded that the expert's opinions were "anything but unclear." And, in drafting the second order, "the JCC committed the same essential errors" as were illuminated in Mitchell I.
The Court found it "confusing" that it was unable to locate in the record any "medical testimony" to support some of the JCC conclusions, which were also "at direct odds with" other conclusions of the JCC. The Court concluded that
"the JCC's findings in the Mitchell I order and again in the order on remand are so conflicting and inconsistent as to make meaningful appellate review impossible."
The Court recognized how rare it is "to remand the same issue to the same judge for a second time," but concluded that there was no other appropriate course. The Court ordered "the JCC to enter a new, internally consistent order containing her ultimate findings of fact and conclusions of law." The JCC thereafter entered a third compensation order, noting the "rather emphatic wording of the district court's decision." The Court did not disturb that third order.
Thus, as to whether "the tie goes to the runner" in baseball we are no closer to the answer than we began. But, in legal proceedings the party with the burden must prove. That essentially means that a tie may well go to the party that does not have the burden. In other words, the tie may in fact go against the runner (the party that is striving to prove her or his case). The party without the burden might in fact prevail at trial without presenting any evidence. Despite this, I have suggested that bringing evidence is nonetheless the better course, see If you are not Perry Mason, Bring Evidence.
As important from the long history of the Mitchell litigation is the Court's admonition that a judge's decisions must be clear and concise. The findings of fact, that is what the judge accepts as having actually occurred, should be clearly stated. Those conclusions (findings) should not be contradicted or treated inconsistently elsewhere in the order. Furthermore, when the Court reverses with specific instructions for reconsideration and clarity, the trial judge's responsibility and task are clear. An appellate court should never have to remand a matter twice for clear and consistent findings.
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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