“Probe for assumptions (particularly the implicit, unarticulated assumptions) behind a line of reason.”
This is one of the more interesting and critical strategies that Brewer identifies. Too frequently we accept statements as fact without considering whether they are supported by facts and solid inferences or are instead based on assumptions that are ad hoc and contingent.
One area fraught with difficulty in this regard is surveillance footage. Consider a claimant who has a 10 pound lifting restriction due to an alleged low back injury. He is observed on a surveillance video transferring multiple bags of groceries and a gallon of milk from a cart to his car and then from his car to his house. Let us assume that we want to use the surveillance footage to argue that the claimant’s low back condition is not as disabling as he and his doctors claim it is. If we conclude that the footage supports or otherwise proves our argument, we must ask ourselves:
In our example we must first step back and ask what, in fact, are physician-imposed restrictions? Are they absolute limits or rough guides? What do they mean and what does it mean if someone does not strictly follow them? We frequently (and erroneously) assume in the context of physical restrictions that they limit performance absolutely or act as an absolute reinjury threshold. Unfortunately, as many IME physicians are wont to point out, medicine is both an art and a science. When a physician assigns physical restrictions, she is making an educated guess as to what level of physical activity the injured person can tolerate with an acceptably small risk of reinjury. Her guess is based on her general experience, training, education, and her particular experience with the patient. No physician can do better than make an educated guess and every honest physician would agree that physical restrictions are an approximation or guide. The individual variables between patients are so great as to make certainty impossible. Hence, restrictions do not mean that a person is physically incapable of lifting more than the limitations the physician sets. Neither does it mean that a person who lifts in excess of the restrictions will necessarily suffer injury. One simply cannot make the assumption based on a limited observation that an injured person lifting in excess of physician-imposed physical restrictions is not as disabled as the physician concludes.
Second, we have no idea whether the observed behavior exceeds the physician-imposed physical restrictions in the first place. We know that a gallon of milk weighs approximately 8.5 pounds, with minor variations depending on the fat content (whole milk is heaviest, skim or fat-free milk is lightest). This is clearly within the claimant’s restrictions. The rest of the groceries in our example are in bags. Unless the bags are clear and the surveillance video is particularly good, we will only be able to guess as to the weight of the contents of the bags. It may appear that the contents of the bags weigh more than 10 pounds if they are larger bags that appear full or if they are reusable bags that appear full. Even then, we are making an assumption based on a limited observation of tenuous support. The point is that we must examine our assumption before concluding the surveillance footage supports our argument that the claimant is exaggerating his disability based on transferring grocery bags from cart to car and car to house.
Third, we must ask ourselves what the impact of the footage will be on the trier of fact, not merely based on the footage itself, but on the probable testimony that the claimant will offer about the footage. I will restrict my comments to the worker’s compensation setting, which will undoubtedly be different than the personal injury setting. Consider what the ALJ will see: an adult shopping for groceries. While it is tempting to view such footage as a “gotcha” moment when we believe the claimant is exaggerating or fabricating disability, the ALJ is more likely to respond to the footage by thinking (and sometimes saying out loud), “so what?” From an ALJ’s perspective, the footage is not likely to be perceived as particularly nefarious because of the simple fact that shopping for groceries is an activity in which the vast majority of self-sufficient adults must engage regardless of their physical condition or whether a physician has imposed activity restrictions based on an alleged work-related condition. In my experience, some common ALJ responses to this type of footage include (with considerable smarm in most circumstances):
This is not to say that surveillance footage cannot be useful. Even in our example, the footage could be useful if there was additional evidence or information that supports the inference we want to make. If the footage was just one example among many showing the claimant moving easier or lifting more than his reported level of disability suggests he is capable of, the footage supports the inference we want to make. Also, if the claimant reports extreme disability and we have evidence that the grocery bags contain far more than 10 pounds, the footage would support our inference if he lifted and moved them with appreciable ease. The bottom line is that we do ourselves and our claims a disservice when we see what we want to see instead of examining the assumptions behind our conclusions.
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