Wednesday, May 1, 2013

The "Obvious" Causal Relationship Exception

A substantial percentage of workers' compensation cases involve conflicting medical expert opinions regarding the occurrence of a work injury, the extent of any disability and its causal relationship to work. The Workers' Compensation Judge is empowered to assess the credibility of the witnesses and accept or reject the testimony of any witness, in whole or in part.

In a Claim Petition, the injured worker must prove his case through competent and credible evidence.

Infrequently, one may hear an argument that the connection of an injury to work, is "obvious", such that medical expert evidence is not required to prove the claim.

Rice v. WCAB (Klapec Express Inc.) No. 1652 C.D. 2012 an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Colins on April 18, 2013, discussed this medical causation issue.

Factual Background

On July 21, 2009 Employee alleged a lower lumbar sprain and strain injury in the course of removing a tarp and covering a load of lumber, in Tennessee, in the course of his duties as a truck driver.

On July 23, 2009, Employee was terminated from his employment, BUT he was not informed until he returned to the Employer terminal and parked his truck on July 28, 2009.

He was terminated for unsatisfactory job performance, under the Employer's "three strikes" policy.
The termination reasons were unrelated to any injury report.

On July 28, 2009, seven (7) days later,  the alleged work injury was first reported to Employer.

Employee sought medical treatment for the lumber sprain and strain and was diagnosed with a separate spinal cord condition - "transverse myelitis and fibrocartilaginous embolism".

The WCJ wrote a 37 page decision.
1. Employee met his burden of proof to establish a work related lumbar strain and sprain injury.
2. He fully recovered from that condition on November 5, 2009 .
3. He did not prove a relationship between the work incident and the myelitis/embolism condition.
4. The WCJ rejected the opinion of Employer Neurosurgical expert Michael Y. Oh, M.D., that
     Employee did not sustain a lumber sprain/strain injury at work.

WCAB reversed the conclusion that Employee proved a work related lumber sprain/strain injury.
              Affirmed the lack of a work related cause of the myelitis/embolism condition.

Employee failed to adduce any unequivocal medical evidence causally relating the lumber strain/sprain condition to the alleged work incident.
Jon B. Tucker, M.D., Employer IME expert, stated Employee "may have" had a work-related back strain, but the spinal condition was not related.

Commonwealth Court Reversed.

Employee argued the WCAB erred as the causal relationship between the Employee's back strain and the work incident was obvious.
Employee produced 2 medical expert witnesses.
Employee conceded that neither medical expert rendered an opinion establishing a causal relationship between the tarp incident and a back strain.

The Court agreed with Employee argument that the causal connection between the work incident and lumber strain/sprain injury was obvious, such that no medical expert opinion evidence was necessary.

Commonwealth Court Reasoning
Here the Employee was found credible by the WCJ regarding the occurrence of the tarp incident while at work. In prior appellate cases, where there were more complex injuries, unequivocal medical proof was required. [ back sprain/strain and alleged disc injury See: Pryor v. WCAB (Colin Service Systems); Marks v. WCAB (Dana Corp.); City of Philadelphia v. WCAB (Smith).]

"... we find the Board erred by overturning the WCJ's findings and his holding that the documented (sic, where?) back strain was obviously connected to the physically rigorous chore that was credibly described by claimant". slip opinion page 8.

Query, is this rigorous chore one performed by Employee, perhaps on a daily/weekly basis without any obvious injury? Why was it so obvious on this occasion to cause an injury?

This syllogistic reasoning is unconvincing.

Practice Pointers:

1. BEWARE of the obvious causal relationship of injury to the work activity. This injury was so obvious, that Employee presented 2 medical experts... even though he did not need to present any medical evidence. Remember, this is an alternative argument available to the employee.

2. Prepare your Examining Medical Expert regarding all of the available factual defenses. At the time of the IME appointment, was there any medical evidence of a lumber sprain/strain injury from July 2009? That is the opinion you present in support of your defense. Do not have your medical expert speculate on what may have been employee's condition, several months earlier.

3. Was there any available argument or evidence to mitigate the "sympathy" factor, where employee is diagnosed with a significant non-occupational medical condition? Where there any other benefits available to employee? Social Security?

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