Caterpillar Logistics Services , Inc . v. HILDA L. SOLIS , Secretary of Labor

Of the Northern District of Illinois, sitting by designation. Œ
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2958
C ATERPILLAR L OGISTICS S ERVICES , I NC .,
Petitioner,
v.
H ILDA L. S OLIS , 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
A RGUED F EBRUARY 14, 2012—D ECIDED M ARCH 20, 2012
Before E ASTERBROOK , Chief Judge, B AUER , Circuit Judge,
and C HANG , District Judge.Œ

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2 No. 11-2958
E ASTERBROOK , Chief Judge. A regulation issued under
the Occupational Safety and Health Act requires em-
ployers to maintain a log of work-related deaths, injuries,
and illnesses. 29 C.F.R. §1904.4(a). Another regulation
defines a death, illness, or injury as work-related if “the
work environment either caused or contributed to the
resulting condition”. 29 C.F.R. §1904.5(a). The phrase
“contributed to” presumably means an increase in likeli-
hood. How much of an increase is enough neither the
regulation, nor any of the Secretary’s decisions, says.
Caterpillar Logistics Services sells parts for Caterpillar
tractors, earth-moving machines, and other products.
When orders arrive, employees locate the parts, put
them in bags (which the parties call totes), and place the
totes on a conveyor belt to the packing department
(“Consol Pak” in the parties’ jargon). Employees in
the packing department remove the parts from the
totes, use a scanning gun to read bar codes that reveal
which part goes to what destination, and put the
parts in shipping containers. Most of the totes sent to
the packing department weigh ten pounds or less; none
exceeds 50 pounds. During a normal day, each em-
ployee in the packing department fills 12 to 14 shipping
containers with parts or bags of small parts—about
650 totes of parts per worker per day must be scanned
and placed in the right shipping container. The process
requires repetitive hand movements, and turning (prona-
tion) of wrists, elbows, and shoulders.
About five weeks after beginning work in the packing
department in April 2008, MK began to feel pain in her

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No. 11-2958 3
right elbow. After another five weeks had passed, MK
visited Caterpillar Logistics’ medical clinic. Norma Just,
a staff physician, put MK on leave until her condition
could be diagnosed. Dr. Just concluded a few weeks
later that MK had both medial and lateral epicondylitis
in her right arm. Epicondylitis is a painful swelling of
the ligaments and tendons around a joint. Lateral
epicondylitis is colloquially known as “tennis elbow” and
medial epicondylitis as “golfer’s elbow,” although both
conditions can arise from other causes, and most
instances are unrelated to sports. MK did not work for
the next three months, during which her condition im-
proved (though, while off, she was diagnosed with
medial and lateral epicondylitis in her left arm too). She
returned to work in the packing department but after
a month, when her condition failed to continue im-
proving (as it had while she rested at home), she trans-
ferred to a position placing parts in racks. She has recov-
ered from the epicondylitis.
Caterpillar Logistics had to decide whether to log
MK’s injury as “work related.” It reviewed guides issued
by the National Institute for Occupational Safety and
Health, and the American Medical Association, both of
which conclude that repetitive motion plus force
(weight or impact) can cause epicondylitis, and that
pronation plus force also can cause the condition, but that
repetitive motion alone does not. Dr. Just concluded
that MK’s work activities had not contributed to her
epicondylitis. Caterpillar Logistics convened an internal
review panel with five members (three board-certified
in musculoskeletal disorders); they agreed with Just’s

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4 No. 11-2958
decision. But the Department of Labor did not and as-
sessed Caterpillar Logistics a $900 penalty for failing
to log a work-related injury. After a four-day hearing,
Administrative Law Judge Augustine agreed with the
Department’s position and sustained the penalty. 2011
OSAHRC L EXIS 65, 23 O.S.H. Cas. (BNA) 1806 (May 24,
2011). The full Occupational Safety and Health Review
Commission declined to review that decision, which
became the Secretary’s final ruling.
Robert Harrison, the only physician to testify in
support of the Department’s position, provided
the basis of the ALJ’s decision. Dr. Harrison, a Clinical
Professor of Medicine at the University of California
at San Francisco, agreed with Caterpillar Logistics’
experts that the packing department is a light-force
environment. He testified that, nonetheless, the comb-
ination of moderate repetition plus pronation of the
wrist, hand, and forearm must have caused MK’s condi-
tion (Dr. Harrison used the standard phrase: “reasonable
degree of medical certainty”). He did not explain, how-
ever, why if this is so no other worker in the his-
tory of Caterpillar Logistics’ operations has contracted
epicondylitis (the packing department has been running
the same way for about 10 years, with a staff of 30, for
300 person-years of experience). Nor did he discuss
any epidemiological study, pro or con. Caterpillar Logis-
tics’ witnesses did discuss these matters.
ALJ Augustine agreed across the board with Dr.
Harrison—and, like him, ignored much evidence incon-
sistent with Harrison’s conclusions. Caterpillar Logistics’
petition for review by the full Commission did not point

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No. 11-2958 5
out that both Dr. Harrison and the ALJ had disregarded
available epidemiological studies showing (at least in
the employer’s understanding) that jobs similar to its
packing department are not associated with an in-
creased incidence of repetitive-motion injuries. This
omission forfeits the point for our purposes; the
employer failed to exhaust its administrative remedies.
But Caterpillar Logistics did ask the Commission to
reverse the ALJ because he disregarded the employer’s
own 300-person-year experience, and the evidence
from several witnesses the ALJ did not mention.
Harrison’s testimony supplies substantial evidence
for the ALJ’s decision. Dr. Harrison was properly quali-
fied as an expert, and an agency is entitled to accept
the evidence that it finds most persuasive, even if more
witnesses testified to a different view (as happened
here). See Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951); NLRB v. Walton Manufacturing Co., 369 U.S. 404
(1962). Harrison discussed the fact that MK developed
epicondylitis in her left arm two weeks after leaving
the packing department. He thought that the con-
dition’s genesis may have been in the workplace,
coupled with a tendency to use the left arm more (at
both work and home) after pain began in the right arm.
The ALJ accepted this view and was entitled to do so.
When emphasizing that Caterpillar Logistics had not
supplied any competing explanation for MK’s condition,
the ALJ did not contradict Home Depot #6512, 2009
OSAHRC L EXIS 58, 22 O.S.H. Cas. (BNA) 1863 (Sept. 16,
2009), a decision by the full Commission. Home Depot
concludes that an employer is not required to show a non-

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6 No. 11-2958
work cause for an injury and that, when the only
evidence of record was that an employee had died in a
parking lot (apparently he had fainted and hit his head
on the ground when he fell), the Department had not
established by a preponderance of the evidence that
the death was work-related. ALJ Augustine concluded
that Dr. Harrison’s testimony supplied the sort of evi-
dence missing in Home Depot; and in evaluating
the probability that conditions at work increased the
probability of a given injury, the agency may con-
sider the absence of a competing explanation. (There
may be such an explanation, but it is not in the record;
Caterpillar Logistics did not try to show the genesis of
MK’s condition.)
Substantial evidence is not enough to sustain an ad-
ministrative decision, however. The adjudicator also
must take account of competing evidence and infer-
ences. That’s essential to show why the agency credited
one witness rather than another. See, e.g., Morgan Stanley
Capital Group Inc. v. Public Utility District of Snohomish
County, 554 U.S. 527, 552 (2008); Richard J. Pierce, Jr., 2
Administrative Law Treatise §11.2 (5th ed. 2010). This
principle does not require elaborate discussion; the goal
is not to produce tedious opinions that bury the
analysis under an avalanche of detail. See Stephens v.
Heckler, 766 F.2d 284 (7th Cir. 1985). But it does require
the agency to test its hypothesis against competing hy-
potheses. It may not simply ignore strong indications
that its favored witness got things wrong. See, e.g.,
Bjornson v. Astrue, No. 11-2422 (7th Cir. Jan. 31, 2012).
That’s what happened here.

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No. 11-2958 7
The big consideration missing from the ALJ’s analysis
is Caterpillar Logistics’ 300-person-years of experience
with its packing department. Epicondylitis occurs at a
rate of about 1% to 2% per year in the general popula-
tion. (Or so the parties tell us.) This implies that
Caterpillar Logistics should have encountered between
three and six cases of epicondylitis among the staff of
the packing department if work played no causal role
at all. It actually had one case (MK’s). If conditions in
the packing department do cause or contribute to
epicondylitis, the condition should occur at levels ex-
ceeding those of the populace at large. The record does
not show an elevated incidence.
It might require a statistical analysis to determine
whether the incidence of epicondylitis among the staff
could have been the result of chance, and what frequency
would imply a causal role for workplace conditions.
Caterpillar Logistics did not perform tests for statistical
significance—but the agency has the burden of proving
causation by a preponderance of the evidence, see
Director, OWCP v. Greenwich Collieries, 512 U.S. 267
(1994). Maybe a sample of 300 person-years is too small
for the numbers to be significant when the background
incidence of epicondylitis is so low—but the ALJ, having
disregarded the experience at Caterpillar Logistics, did
not make a finding one way or the other about statistical
significance.
The significance of Caterpillar Logistics’ experience
depends in part on what §1904.5(a) means in saying
that an injury is work-related if working condi-
tions “contributed to” the injury. This could mean “in-

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8 No. 11-2958
creased the probability, above background levels, by a
statistically significant amount.” That’s how we’ve been
thinking about it and is why Dr. Harrison’s (and the
ALJ’s) failure to consider Caterpillar Logistics’ actual
experience matters. If the requirement of “contribution”
is stronger—if, say, it means something like “doubled
the probability”—then the experience in the packing
department is even more important. But perhaps the
agency means a weaker link. Then it would be hard to
know whether Caterpillar Logistics’ own experience
has any salience. What is certain is that the agency
must choose among these possibilities; the judiciary
cannot choose for it but must affirm, or not, based on the
agency’s rationale. See SEC v. Chenery Corp., 318 U.S. 80,
88–89 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
The ALJ did not choose, indeed did not appreciate the
need for choice, and the Commission as a whole has
never discussed the subject.
What the work-relatedness requirement is doing in
§1904.4(a) is a puzzle. At oral argument, counsel for
the Secretary suggested that the injury log’s function is
to help the Department determine which occupations
are hazardous, so that it can concentrate enforcement
resources on them and propose regulatory changes that
may reduce risks to employees. These purposes can be
served, however, only if the log contains all injuries.
Then the Department can compare rates of injury in
a given job with the background rate in the general popu-
lation; the difference can be attributed to workplace
hazards. If, however, employers log injuries only after
first deciding that each is work-related, the log becomes

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No. 11-2958 9
less useful as an exploratory or investigatory tool. Given
the work-relatedness requirement in §1904.4(a), the
log does not show actual risks; it shows whether the
employer believes that there is a connection between
the working environment and the injuries. The Secretary
can get no more information out than the employer
puts in: GIGO (garbage in, garbage out). Eliminating
the work-relatedness requirement would make the
log more useful and avoid the potentially high costs of
evaluation illustrated by this case. An elaborate board
of inquiry at Caterpillar Logistics was followed by the
Department’s investigation, a four-day trial, an opinion
by an ALJ, submissions to the Commission, and then
briefs and arguments in a court of appeals. Because
saving all of this time and expense might simultaneously
improve the log’s usefulness, the Secretary may wish
to take another look at §1904.4(a).
The petition for review is granted, the Secretary’s
decision is vacated, and the case is remanded for pro-
ceedings consistent with this opinion.
3-20-12

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