New Washington Administrative Code (WAC) rules that set guidelines for independent medical examinations (IME) take effect on April 23, 2022.…
The burden of proof has two parts: a burden of production and a burden of persuasion. Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 433, 886 P.2d 172 (1994). A party with the burden of production on a particular fact in issue must produce sufficient evidence to warrant submitting that issue to the trier of fact. State v. Paul, 64 Wn. App. 801, 806, 828 P.2d 594 (1992). Otherwise, the party has failed in meeting their burden and must automatically loose. Whether a party has produced a sufficient quantity of evidence to submit the factual issue to the trier of fact presents a legal question to be decided by the court. Paul, 64 Wn. App. at 806. In other words, each case is fact sensitive so that there is no generalized statement of what quantity or type of evidence will suffice for every case. A party will still lose their case if both sides meet their burden of production but only the opposing side meets their burden of persuasion. Sometimes, a court will find that evidence is equally balanced and may then be forced to rule on the facts using presumptions. For example, there is a presumption that the Board of Industrial Insurance Appeals has decided a case correctly, and only when an appealing party overcomes this burden may a Superior Court rule in that party’s favor. Ruse v. Dep’t of Labor & Indus., 138 Wn.2d 1, 5-6, 977 P.2d 570 (1999). A “tie” in the scenario of a Superior Court appeal always yields the same result as was determined by the Board below.
A party with the burden of persuasion must convince the trier of fact that the contested fact is true to a specific degree of persuasion, using one of three standards:
- Beyond a reasonable doubt
- Clear, cogent, and convincing
- Preponderance of the evidence
1. Beyond a Reasonable Doubt
Very little is determined in workers’ compensation litigation using the “beyond a reasonable doubt” standard. However, abuse of discretion cases and motions for summary judgment invoke functionally equivalent burdens. Abuse of discretion cases require the claimant to show that “no reasonable person” would find as the Director of Labor & Industries has found. If “no reasonable person” could so find, then clearly the proofs in favor of the alternative contention made by the claimant must be demonstrated beyond a reasonable doubt. Meanwhile, the same is true of matters that can be found “as a matter of law,” because in those situations, no contestable facts remain. Things can be decided on summary judgment only because all reasonable doubt as to all facts has been resolved. There is nothing to submit to the trier of fact precisely because the case has already been proved beyond a reasonable doubt.
2. Clear, Cogent and Convincing
The “clear, cogent and convincing” standard is used when the interests of justice urge significant caution against making the finding requested. For example, fraud cases against an injured worker must be proved by this standard. The standard is said to be somewhere between the “preponderance of evidence” standard and the “beyond a reasonable doubt” standard, but its precise degree of persuasion has itself been hard to articulate when examined closely in legal treatises and by courts. For example, if one is already “convinced,” isn’t one already persuaded beyond a reasonable doubt? If the proposition is “clear,” why look for further weigh the evidence in the record? If the end result has been proved by “cogent,” meaning “compelling” proofs, how far between preponderance and having no reasonable doubt does the fact finder need to be persuaded? Courts struggle, as do juries, because realistically this standard is vague no matter how it’s described in pattern jury instructions.
3. Preponderance of Evidence
Finally, there’s the “preponderance of evidence” standard, the easiest in civil law absent the existence of a controlling presumption. This standard is met when a mere scintilla (the smallest possible amount) of evidence favors one side over the other. Unfortunately, this too is a difficult standard to define accurately since each juror on a panel, or each different judge presiding at a bench trial, is likely to weigh each piece of evidence slightly differently than others. For this reason, when put to the “preponderance of evidence” burden of persuasion, parties are well-advised to litigate as if they are trying to prove their case to a far more difficult standard. Attempting to prove just the bare minimum, even to try and save litigation costs, is a good way to misjudge and loose. If you can’t tell what the other person might think about your evidence, try to give them more so that they will have less reason to doubt your position.
If you wish to win your Labor & Industries case, prove it and then prove it some more! It’s never too early to consult with an attorney. Use experienced and competent workers’ compensation counsel who are familiar with the Industrial Insurance Act and the forums in which these cases are contested. Know the administrative process that applies at the Department and how this differs from the judicial process at the Board of Industrial Insurance Appeals and higher courts. Different forms of proof are allowed in different forums. How you position your case at the Department may determine whether you are dragged to, or forced to file at, the Board of Industrial Insurance Appeals, as well as how vigorously you will need to fight.
When proving your case, select your witnesses carefully, with a specific understanding of what witnesses and evidence the opposing side may deploy against you. Use discovery aggressively, and motions in limine strategically, to limit or negate the opposing side’s tactical advantages. Hire appropriate, independent experts if your own care providers are unable or unwilling to testify (some simply decline to be involved in legal matters), including while your case remains before the Department. If you don’t know which doctors are likely to testify best on your behalf, or your doctor takes the position that they didn’t study medicine for decades only just to spend all their time in court, ask your Labor & Industries attorney how to deal with this common problem. Prepare your side’s experts and lay witnesses as well as possible for trial so there will be no surprises or upsets. Know the court rules and the rules of evidence, because without this knowledge you may not be able to get even the most competent and persuasive proofs admitted into evidence.
A recent public records information request made by Washington Law Center produced a certification by the Department, with help from the Board of Industrial Insurance Appeals, that just less than one in four Department orders are “reversed and remanded” (overturned) at the Board or higher courts. You cannot afford to have the deck this stacked against you by the time you first arrive at the Board. You must start overproving your case and hardening it against attacks before you ever get close to litigation. Washington Law Center rarely loses our litigation battles in comparison, but that is often because we have prepared our cases so well while they are still before the Department (claims managers often cannot anticipate how litigation will go at the Board and courts because they do not participate in litigation like we do….which gives us a significant, strategic advantage). You must do the same.
Disclaimer: Nothing on this page constitutes legal advice. Only an attorney can give legal advice. Each case is dependent upon its own facts and circumstances so nothing on this page may be understood or reasonably relied-upon as a promise of what our representation will yield in your unique case. The content of Washington Law Center’s Labor & Industries posts are solely the opinions of Spencer D. Parr, our managing L&I attorney.
ABOUT THE AUTHOR:
Spencer Parr is a litigation and trial attorney at Washington Law Center focused primarily in the areas of Labor & Industries claims and injury pension benefits. Before co-founding Washington Law Center, Spencer served in the U.S. Army. He has litigated major issues in the law, represented clients from coast to coast, and dedicated his professional life to assisting the injured and disabled. Click here to learn more about Spencer. View More Labor & Industries and Work Injury Resources.