### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1106

C ATERPILLAR L OGISTICS

, I NC

.,

Petitioner

,

v.

T HOMAS E. P EREZ

, Secretary of Labor,

Respondent

, and

I NTERNATIONAL U NION

, U NITED A UTOMOBILE

, A EROSPACE

AND A GRICULTURAL I MPLEMENT W ORKERS OF A MERICA

, Intervening Respondent

.

____________________

Petition for Review of an Order of the

Occupational Safety and Health Review Commission

____________________

S UBMITTED N OVEMBER 27, 2013

— D ECIDED D ECEMBER 12, 2013

____________________

Before B AUER and E ASTERBROOK

, Circuit Judges

, and

C HANG

, District Judge

. *

* Of the Northern District of Illinois, sitting by designation.No. 13

‐ 1106 2

E ASTERBROOK

, Circuit Judge

. The first time this case was

here, we held that an administrative law judge erred by fail

‐ ing 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 pen

‐ alty for failing to report an injury as work

‐ related, 2012

OSAHRC L EXIS 118 (Oct. 9, 2012), and the Occupational Safe

‐

ty and Health Review Commission again declined to review

the ALJ’s decision. 2012 OSAHRC L EXIS 119 (Nov. 20, 2012).

Caterpillar has filed another petition for judicial review.

One of Caterpillar’s workers, MK, developed epicondyli

‐

tis. (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 depart

‐

ment, 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 musculo

‐

skeletal disorders. Relying on guides issued by the National

Institute for Occupational Safety and Health and the Ameri

‐

can Medical Association—both of which conclude that repet

‐

itive motion plus force (weight or impact) can cause epicon

‐ dylitis, and that pronation plus force also can cause the con

‐

dition, but that repetitive motion alone does not—the panel3 No. 13

‐ 1106

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 re

‐ petitive motion unless the motion entailed force, and by ref

‐

erence to Caterpillar’s own experience. Just one worker in

the packing department’s history (MK herself) has devel

‐ oped epicondylitis, and the experts thought that this demon

‐

strates that the sort of tasks performed there do not cause or

contribute to epicondylitis.

Against this, the Secretary offered a single witness: Rob

‐

ert Harrison, a Clinical Professor of Medicine at the Univer

‐ sity of California at San Francisco. He acknowledged that the

packing department is a light

‐ force environment but testi

‐

fied that, nonetheless, the combination of moderate repeti

‐

tion 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 epicon

‐ dylitis. 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 fur

‐

ther proceedings. We held that Caterpillar had failed to ex

‐

haust its administrative remedies with respect to the epide

‐ miological studies, which it did not call to the Commission’sNo. 13

‐ 1106 4

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 Caterpil

‐

lar’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 L EXIS 118 at

*27. He called Caterpillar’s experience “purported” counter

‐ vailing 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 histo

‐

ry to establish whether [their] experience of a particular inju

‐

ry 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 work

‐

er’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 employer’s experience could support his position but

not disprove it. Since the ALJ had decided to accept Harri

‐

son’s position, and Harrison had declared that evidence con

‐

trary to his position is worthless, the ALJ decided that Cat

‐ erpillar’s experience does not undermine his original conclu

‐

sion.

This is circular. We remanded this case because the ALJ

accepted a minority view within the medical profession

without trying to reconcile that view with evidence—both

epidemiological studies and Caterpillar’s own experience.5 No. 13

‐ 1106

Instead of carrying out that task by testing Harrison’s con

‐

clusions, the ALJ took them as established and then declared

that, because Harrison himself did not think contrary evi

‐

dence material, there is no need to engage with that evi

‐

dence. Such a heads

‐ I

‐ win

‐ tails

‐ you

‐ lose declaration does

more to make a witness look like a quack than it does to

support reliance on the witness’s approach. Harrison’s con

‐

clusion that data can support a thesis but not undermine it is

un

‐ scientific and anti

‐ intellectual; it is a hallmark of the sci

‐

entific method to follow the data whichever way they point.

We are surprised that an ALJ would echo such a position

and that the full Commission would decline to intervene.

Judges and other lawyers must learn how to deal with scien

‐

tific evidence and inference. See Jackson v. Pollion

, 733 F.3d

786 (7th Cir. 2013).

The prevailing view in the medical profession, which has

both general (epidemiological) and specific (this workplace)

support, is that repetitive motion plus force leads to the de

‐ velopment of epicondylitis. A discipline’s prevailing view

may be wrong; better models and more evidence have over

‐

turned many a confidently held belief. Prevailing views, and

the data behind them, still must be considered; they cannot

be ignored on the say

‐ so of any witness. Yet the ALJ joined

Harrison in disparaging statistical analysis. He wrote that

epidemiological and employer

‐ specific data do not count for

much because “none of these [other] people are [sic] MK.

Similar to the concept of the ‘eggshell skull’ plaintiff in civil

litigation, you take your workers as they are.” 2012

OSAHRC L EXIS 118 at *32. This is incompatible with our first

opinion. It also misunderstands the bearing of statistics.No. 13

‐ 1106 6

Harrison believes that light repetitive motion causes epi

‐ condylitis; the bulk of the profession thinks that force is nec

‐

essary. The way to test whether Harrison is correct is to look

at data from thousands of workers in hundreds of workplac

‐

es—or at least to look at data about hundreds of worker

‐

years in Caterpillar’s own workplace. Any given worker may

have idiosyncratic susceptibility, though there’s no evidence

that MK does. But the antecedent question is whether Harri

‐

son’s framework is sound, and short of new discoveries

about human physiology only statistical analysis will reveal

the answer. Any large sample of workers will contain people

with idiosyncratic susceptibilities; the Law of Large Num

‐

bers ensures that their experience is accounted for. If studies

of large numbers of workers show that the incidence of epi

‐ condylitis on jobs that entail repetitive motion but not force

is no higher than for people who do not work in jobs requir

‐ ing repetitive motion, then Harrison’s view has been refuted.

Our first opinion posed, as a potential obstacle to relying

on Caterpillar’s experience, the question whether the sample

size is large enough to draw a statistically significant infer

‐

ence given the rarity of epicondylitis in the general popula

‐

tion. 674 F.3d at 709. The ALJ did not explore statistical sig

‐

nificance on remand—indeed, he declined to reopen the rec

‐

ord so that evidence on this issue could be adduced. Cater

‐ pillar’s experience therefore cannot be discounted as reflect

‐ ing a sample too small to support reliable conclusions.

One more subject deserves mention. The ALJ disparaged

Caterpillar’s experience in part because similar data “will

not always be present in every case”. 2012 OSAHRC L EXIS

118 at *27–28. In other words, the ALJ bypassed available ev

‐

idence because other employers might not be able to offer7 No. 13

‐ 1106

the same kind of evidence. This is irrational. If the camera in

a police car captures the events of a high

‐ speed chase, the

judiciary would not ignore that video just because other po

‐

lice cars lack cameras; likewise, if the police record an inter

‐ rogation, courts will consider that information rather than

wait for the day when all interrogations are recorded. Cf.

Scott v. Harris

, 550 U.S. 372 (2007) (not only relying on a vid

‐

eo of a chase but also including it as part of the Court’s opin

‐

ion). Scientists recently used videos of an asteroid’s entry

over Russia, captured serendipitously by dashboard cams, to

infer the size, mass, composition, velocity, entry path, and

explosive force of the event. See Olga P. Popova, et al., Chel

‐ yabinsk Airburst, Damage Assessment, Meteorite Recovery, and

Characterization

, 342 Science 1069 (Nov. 29, 2013). No scientist

would have dreamed of saying anything like: “Because few

objects entering from space are recorded in such detail, we

will ignore the evidence available about this entry.” Yet that

is what the ALJ did with Caterpillar’s experience.

The Department of Labor has had ample opportunity to

address the significance of Caterpillar’s experience. It failed

to do so and is not entitled to a third crack. The petition for

review is granted, and the citation is vacated.