United States Court of Appeals For the Seventh Circuit
Employment — tennis elbow
Where the ALJ adopted a medical opinion rejected by the majority of experts, without basis, the OSHA citation based on that opinion must be vacated.
“Harrison believes that light repetitive motion causes epicondylitis; the bulk of the profession thinks that force is necessary. The way to test whether Harrison is correct is to look at data from thousands of workers in hundreds of workplaces— 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 Harrison’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 Numbers ensures that their experience is accounted for. If studies of large numbers of workers show that the incidence of epicondylitis on jobs that entail repetitive motion but not force is no higher than for people who do not work in jobs requiring repetitive motion, then Harrison’s view has been refuted.”
Petition for Review of an Order of the Occupational Safety and Health Review Commission, Easterbrook, J.